HomeMy WebLinkAboutContract 1849 49
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
KIMLEY-HORN AND ASSOCIATES, INC.
FOR
CIP 8751 —TRAFFIC SAFETY IMPROVEMENTS (HSIP CYCLE 9B)
This Agreement for Design Professional Services ("Agreement") is entered into as
of January 8, 2020 ("Effective Date") by and between the City of Cathedral City, a
municipal corporation ("City") and Kimley-Horn and Associates, Inc., a North Carolina
corporation ("Consultant"). City and Consultant are sometimes hereinafter individually
referred to as "Party" and hereinafter collectively referred to as the "Parties."
RECITALS
A. City has sought, by Request for Proposals, the performance of the
engineering and environmental services for the Date Palm Drive and Varner Road
Safety Improvements, Federal Project Number HSIPL-5430(035), City Project
Number 8751, defined and described particularly in Section 2 of this Agreement.
B. Consultant, following submission of a proposal for the performance of the
services defined and described particularly in Section 2 of this Agreement, was selected
by the City to perform those services.
C. Consultant was selected by the City on the basis of Consultant's
demonstrated competence and the professional qualifications necessary for the
satisfactory performance of the services required.
D. Pursuant to the City of Cathedral City's Municipal Code, City has authority
to enter into this Consultant Services Agreement and the City Manager has authority to
execute this Agreement.
E. The Parties desire to formalize the selection of Consultant for performance
of those services defined and described particularly in Section 2 of this Agreement and
desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made
by the Parties and contained here and other consideration, the value and adequacy of
which are hereby acknowledged, the Parties agree as follows:
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SECTION 1. TERM OF AGREEMENT.
(a) Subject to the provisions of Section 28 "Termination of Agreement" of this
Agreement, the Agreement shall go into effect on the Effective Date, and Consultant shall
commence work after notification to proceed by the City Contract Administration. The
agreement shall terminate on December 30, 2022, unless extended by contract
amendment.
(b) Consultant is advised that any recommendation for award is not binding on
City until the Agreement is fully executed and approved by City.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE.
(a) Scope of Services. Consultant agrees to perform the services set forth in
Exhibit "A" "Scope of Services" (hereinafter, the "Services") and made a part of this
Agreement by this reference.
(b) Schedule of Performance. The Services shall be completed pursuant to the
schedule specified in Exhibit "A". Should the Services not be completed pursuant to that
schedule, the Consultant shall be deemed to be in Default of this Agreement. The City,
in its sole discretion, may choose not to enforce the Default provisions of this Agreement
and may instead allow Consultant to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Consultant shall not be compensated for any work rendered in connection with its
performance of this Agreement that are in addition to or outside of the Services unless
such additional services are authorized in advance and in writing in accordance with
Section 35 "Administration and Implementation" or Section 37 "Amendment" of this
Agreement. If and when such additional work is authorized, such additional work shall
be deemed to be part of the Services.
SECTION 4. SAFETY.
(a) Consultant shall comply with OSHA regulations applicable to Consultant
regarding necessary safety equipment or procedures. Consultant shall comply with
safety instructions issued by City Safety Officer and other City representatives.
Consultant personnel shall wear hard hats and safety vests at all times while working on
the construction project site.
(b) Pursuant to the authority contained in Vehicle Code §591, City has
determined that such areas are within the limits of the project and are open to public
traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12,
13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary
precautions for safe operation of its vehicles and the protection of the traveling public
from injury and damage from such vehicles.
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(c) CONSULTANT must have a Division of Occupational Safety and Health
(CAL-OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation
of any practices, work, method, operation, or process related to the construction or
excavation of trenches which are five (5) feet or deeper.
SECTION 5. COMPENSATION AND METHOD OF PAYMENT.
(a) The method of payment for this Agreement will be based on lump sum. The
total lump sum price paid to Consultant will include compensation for all work and
deliverables, including travel and equipment. No additional compensation will be paid to
Consultant, 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 total lump sum compensation will be negotiated between Consultant and City.
Adjustment in the total lump sum compensation will not be effective until authorized by
Agreement amendment and approved by the City.
(b) Progress payments may be made monthly in arrears based on the
percentage of work completed by Consultant. If Consultant fails to submit the required
deliverable items according to the schedule, City shall have the right to delay payment or
terminate this Agreement in accordance with the provisions of Section 28 "Termination of
Agreement".
(c) Consultant shall not commence performance of work or services until this
Agreement has been approved by City and notification to proceed has been issued by
City Contract Administrator. No payment will be made prior to approval of any work, or
for any work performed prior to approval of this Agreement.
(d) Consultant will be reimbursed within thirty (30) days upon receipt by City
Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no
later than thirty (30) calendar days after the performance of work for which Consultant is
billing. Invoices shall detail the work performed on each milestone, on each project as
applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and
shall reference this project number and project title. Final invoice must contain the final
cost and all credits due City that include any equipment purchased under the provisions
of Section 12 "Equipment Purchase". The final invoice must be submitted within sixty
(60) calendar days after completion of Consultant's work unless a later date is approved
by the City. Invoices shall be mailed to the City in accordance with Section 33 "Notices".
(e) Subject to any limitations set forth in this Agreement, City agrees to pay
Consultant the amounts specified in Exhibit "B" and made a part of this Agreement by this
reference. The total amount payable by City shall not exceed One Hundred Twenty-Six
Thousand, Nine Hundred Sixty-Two dollars ($126,962.).
SECTION 6. COST PRINICPLES AND ADMINISTRATIVE REQUIREMENTS.
(a) The Consultant agrees that 48 CFR Part 31, Contract Cost Principles and
Procedures, shall be used to determine the allowability of individual terms of cost.
(b) The Consultant also agrees to comply with Federal procedures in
accordance with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards.
(c) Any costs for which payment has been made to the Consultant that are
determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part
200 are subject to repayment by the Consultant to City.
(d) When a Consultant or Subconsultant is a Non-Profit Organization or an
Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards shall apply.
SECTION 7. AUDIT REVIEW PROCEDURES.
(a) Any dispute concerning a question of fact arising under an interim or post
audit of this Agreement that is not disposed of by Agreement, shall be reviewed by City's
Chief Financial Officer.
(b) Not later than thirty (30) days after issuance of the final audit report,
Consultant, may request a review by City's Chief Financial Officer of unresolved audit
issues. The request for review will be submitted in writing.
(c) Neither the pendency of a dispute nor its consideration by City will excuse
Consultant from full and timely performance, in accordance with the terms of this
Agreement.
(d) Consultant and subconsultant Agreements, including cost proposals and
Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to,
an Agreement audit, and incurred cost audit, an ICR Audit, or a CPA ICR audit work paper
review. If selected for audit or review, the Agreement, Cost Proposal and ICR, and related
work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and
other related laws and regulations. In the instances of a CPA ICR audit work paper
review, it is Consultant's responsibility to ensure federal, state, or local government
officials are allowed fully access to the CPA's work papers including making copies as
necessary. The Agreement, Cost Proposal, and ICR shall be adjusted by Consultant and
approved by City to conform to the audit or review recommendations. Consultant agrees
that individual terms of costs identified in the audit report shall be incorporated into the
Agreement by this reference if directed by City at its sole discretion. Refusal by
Consultant to incorporate audit or review recommendations, or to ensure that the federal,
state, or local governments have access to CPA work papers, will be considered a breach
of Agreement terms and cause for termination of the Agreement pursuant to Section 28
"Termination of Agreement" and disallowance of prior reimbursed costs.
(e) Consultant's Cost Proposal may be subject to a CPA ICR Audit Work Paper
Review and/or audit by Caltrans Audits and Investigation (A&I). Caltrans A&I, at its sole
discretion, may review and/or audit and approve the CPA ICR documentation. The Cost
Proposal shall be adjusted by the Consultant and approved by the City to conform to the
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Work Paper Review recommendations included in the management letter or audit
recommendations included in the audit report. Refusal by the Consultant to incorporate
the Work Paper Review recommendations included in the management letter or audit
recommendations included in the audit report will be considered a breach of the
Agreement terms and cause for termination of the Agreement pursuant to Section 28
"Termination of Agreement" and disallowance of prior reimbursed costs.
(i) During Caltrans A&I's review of the ICR audit work papers created
by the Consultant's independent CPA, Caltrans A&I will work with the CPA and/or
Consultant toward a resolution of issues that arise during the review. Each party agrees
to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans A&I
identifies significant issues during the review and is unable to issue a cognizant approval
letter, City will reimburse the Consultant at an accepted ICR until a FAR (Federal
Acquisition Regulation) compliant ICR{e.g. 48 CFR Part 31; GAGAS (Generally Accepted
Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with
procedures and guidelines of the American Association of State Highways and
Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and
guidelines}is received and approved by A&I.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) -the accepted
rate reimbursed will be ninety percent (90%) of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two
hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of
the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) -the accepted
rate will be seventy-five percent (75%) of the proposed rate.
(ii) If Caltrans A&I is unable to issue a cognizant letter per paragraph
E.1. above, Caltrans A&I may require Consultant to submit a revised independent CPA-
audited ICR and audit report within three (3) months of the effective date of the
management letter. Caltrans A&I will then have up to six (6) months to review the
Consultant's and/or the independent CPA's revisions.
(iii) If the Consultant fails to comply with the provisions of this paragraph
E, or if Caltrans A&I is still unable to issue a cognizant approval letter after the revised
independent CPA audited ICR is submitted, overhead cost reimbursement will be limited
to the accepted ICR that was established upon initial rejection of the ICR and set forth in
paragraph E.1. above for all rendered services. In this event, this accepted ICR will
become the actual and final ICR for reimbursement purposes under this Agreement.
(iv) Consultant may submit to City final invoice only when all of the
following items have occurred: (1) Caltrans A&I accepts or adjusts the original or revised
independent CPA audited ICR; (2) all work under this Agreement has been completed to
the satisfaction of City; and, (3) Caltrans A&I has issued its final ICR review letter. The
Consultant must submit its final invoice to City no later than sixty (60) calendar days after
occurrence of the last of these items. The accepted ICR will apply to this Agreement and
all other agreements executed between City and the Consultant, either as a prime or
subconsultant, with the same fiscal period ICR.
SECTION 8. DISPUTES.
Prior to either party commencing any legal action under this Agreement, the parties agree
to try in good faith, to settle any dispute amicably between them. If a dispute has not
been settled after forty-five (45) days of good-faith negotiations and as may be otherwise
provided herein, then either party may commence legal action against the other.
(a) Any dispute, other than audit, concerning a question of factrising under
this Agreement that is not disposed of by agreement shall be decided by�a committee
consisting of City Manager and City Engineer, who may consider written or verbal
information submitted by Consultant.
(b) Not later than 30 days after completion of all work under the Agreement,
Consultant may request review by City Governing Board of unresolved claims or disputes,
other than audit. The request for review will be submitted in writing.
(c) Neither the pendency of a dispute, nor its consideration by the committee
will excuse Consultant from full and timely performance in accordance with the terms of
this Agreement.
SECTION 9. SUBCONTRACTING.
(a) Nothing contained in this Agreement or otherwise, shall create any
contractual relation between City and any subconsultant(s), and no sub-agreement shall
relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to
be as fully responsible to City for the acts and omissions of its subconsultant(s) and of
persons either directly or indirectly employed by any of them as it is for the acts and
omissions of persons directly employed by Consultant. Consultant's obligation to pay its
subconsultant(s) is an independent obligation from City's obligation to make payments to
Consultant.
(b) Consultant shall perform the work contemplated with resources available
within its own organization and no portion of the work pertinent to this Agreement shall
be subcontracted without written authorization in accordance with Section 35
"Administration and Implementation" of this Agreement, except that, which is expressly
identified in the approved Cost Proposal.
(c) Any sub-agreement entered into as a result of this Agreement, shall contain
all the provisions stipulated in this entire Agreement to be applicable to S bconsultants
unless otherwise noted.
(d) Consultant shall pay its subconsultants within fifteen (15) calendar days
from receipt of each payment made to Consultant by City.
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(e) Any substitution of subconsultant(s) must be approved in writing by City in
accordance with Section 35 "Administration and Implementation" of this Agreement in
advance of assigning work to a substitute Subconsultant.
SECTION 10. RETENTION OF FUNDS.
(a) Any sub-agreement entered into as a result of this Agreement shall contain
all of the provisions of this section.
(b) No retainage will be withheld by City from progress payments due the
Consultant. Retainage by the Consultant or subconsultants is prohibited, and no
retainage will be held by the Consultant from progress due subconsultants. Any violation
of this provision shall subject the violating Consultant or subconsultants to the penalties,
sanctions, and other remedies specified in Business and Professions Code §7108.5. This
requirement shall not be construed to limit or impair any contractual, administrative, or
judicial remedies, otherwise available to the Consultant or subconsultant in the event of
a dispute involving late payment or nonpayment by the Consultant or deficient
subconsultant performance, or noncompliance by a subconsultant. This provision applies
to both DBE and non-DBE Consultant and subconsultants.
SECTION 11. DISADVANTAGED BUSINESS ENTERPRISES (DBE).
(a) This Agreement is subject to 49 CFR Part 26 entitled "Participation by
Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs". Consultants who enter into a federally-funded agreement will
assist the City in a good faith effort to achieve California's statewide overall DBE goal.
(b) The goal for DBE participation for this Agreement is 17.0%. Participation by
DBE consultant or subconsultants shall be in accordance with information contained in
the Consultant Proposal DBE Commitment (Exhibit 10-01), or in the Consultant Contract
DBE Commitment (Exhibit 10-02) attached hereto under Exhibit B "Consideration" and
incorporated as part of the Agreement. If a DBE subconsultant is unable to perform,
Consultant must make a good faith effort to replace him/her with another DBE
subconsultant, if the goal is not otherwise met.
(c) Consultant can meet the DBE participation goal by either documenting
commitments to DBEs to meet the Agreement goal, or by documenting adequate good
faith efforts to meet the Agreement goal. An adequate good faith effort means that the
Consultant must show that it took all necessary and reasonable steps to achieve a DBE
goal that, by their scope, intensity, and appropriateness to the objective, could reasonably
be expected to meet the DBE goal. If Consultant has not met the DBE goal, complete
and submit Exhibit 15-H: DBE Information — Good Faith Efforts to document efforts to
meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith
efforts to meet the DBE goal.
(d) DBEs and other small businesses, as defined in 49 CFR, Part 26 are
encouraged to participate in the performance of contracts financed in whole or in part with
federal funds. The City, Consultant or subconsultant shall not discriminate on the basis
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of race, color, national origin, or sex in the performance of this Agreement. Consultant
shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration
of US DOT-assisted agreements. Failure by Consultant to carry out these requirements
is a material breach of this Agreement, which may result in the termination of this
Agreement pursuant to Section 28 "Termination of Agreement" or such other remedy as
City deems appropriate, which may include but is not limited to:
(i) Withholding monthly progress payments;
(ii) Assessing sanctions;
(iii) Liquidated damages; and/or
(iv) Disqualifying the Consultant from future bidding as non-responsible
(e) A DBE firm may be terminated only with prior written approval from City and
only for the reasons specified in 49 CFR 26.53(f). Prior to requesting City consent for the
termination, Consultant must meet the procedural requirements specified in 49 CFR
26.53(f). If a DBE subconsultant is unable to perform, Consultant must make a good faith
effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
(f) Consultant shall not be entitled to any payment for such work or material
unless it is performed or supplied by the listed DBE or by other forces (including those of
Consultant) pursuant to prior written authorization of the City.
(g) A DBE is only eligible to be counted toward the Agreement goal if it performs
a commercially useful function (CUF) on the Agreement. CUF must be evaluated on an
agreement by agreement basis. A DBE performs a Commercially Useful Function (CUF)
when it is responsible for execution of the work of the Agreement and is carrying out its
responsibilities by actually performing, managing, and supervising the work involved. To
perform a CUF, the DBE must also be responsible, with respect to materials and supplies
used on the Agreement, for negotiating price, determining quality and quantity, ordering
the material and installing (where applicable), and paying for the material itself. To
determine whether a DBE is performing a CUF, evaluate the amount of work
subcontracted, industry practices, whether the amount the firm is to be paid under the
Agreement is commensurate with the work it is actually performing, and other relevant
factors.
(h) A DBE does not perform a CUF if its role is limited to that of an extra
participant in a transaction, Agreement, or project through which funds are passed in
order to obtain the appearance of DBE participation. In determining whether a DBE is
such an extra participant, examine similar transactions, particularly those in which DBEs
do not participate.
(i) If a DBE does not perform or exercise responsibility for at least thirty percent
(30%) of the total cost of its Agreement with its own work force, or the DBE subcontracts
a greater portion of the work of the Agreement than would be expected on the basis of
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normal industry practice for the type of work involved, it will be presumed that it is not
performing a CUF.
(i) Consultant shall maintain records of materials purchased or supplied from
all subcontracts entered into with certified DBEs. The records shall show the name and
business address of each DBE or vendor and the total dollar amount actually paid each
DBE or vendor, regardless of tier. The records shall show the date of payment and the
total dollar figure paid to all firms. DBE prime consultants shall also show the date of
work performed by their own forces along with the corresponding dollar value of the work.
(k) Upon completion of the Agreement, a summary of these records shall be
prepared and submitted on the form entitled, "Exhibit 17-F: Final Report-Utilization of
Disadvantaged Business Enterprise (DBE), First-Tier Subconsultants", certified correct
by Consultant or Consultant's authorized representative and shall be furnished to the City
with the final invoice. Failure to provide the summary of DBE payments with the final
invoice will result in twenty-five percent (25%) of the dollar value of the invoice being
withheld from payment until the form is submitted. The amount will be returned to
Consultant when a satisfactory "Final Report-Utilization of Disadvantaged Business
Enterprises (DBE), First-Tier Subconsultants" is submitted to the City.
(I) If a DBE subconsultant is decertified during the life of the Agreement, the
decertified subconsultant shall notify Consultant in writing with the date of decertification.
If a subconsultant becomes a certified DBE during the life of the Agreement, the
subconsultant shall notify Consultant in writing with the date of certification. Any changes
should be reported to City within 30 days.
(m) Any subcontract entered into as a result of this Agreement shall contain all
of the provisions of this section.
SECTION 12. EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES.
(a) Prior authorization in writing, by City in accordance with Section 35
"Administration and Implementation" of this Agreement shall be required before
Consultant enters into any unbudgeted purchase order, or subcontract exceeding five
thousand dollars ($5,000) for supplies, equipment, or Consultant services. Consultant
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
Consultant's approved Cost Proposal and exceeding five thousand dollars ($5,000), with
prior authorization by City in accordance with Section 35 "Administration and
Implementation" of this Agreement; three competitive quotations must be submitted with
the request, or the absence of bidding must be adequately justified.
(c) Any equipment purchased as a result of this Agreement is subject to the
following:
(i) Consultant shall maintain an inventory of all nonexpendable
property. Nonexpendable property is defined as having a useful life of at least two years
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and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased
equipment needs replacement and is sold or traded in, City shall receive a proper refund
or credit at the conclusion of the Agreement, or if the Agreement is terminated pursuant
to Section 28 "Termination of Agreement" of this Agreement, Consultant may either keep
the equipment and credit 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 City in an amount equal to the sales price. If
Consultant elects to keep the equipment, fair market value shall be determined at
Consultant's expense, on the basis of a competent independent appraisal of such
equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by City
and Consultant, if it is determined to sell the equipment, the terms and conditions of such
sale must be approved in advance by City.
(ii) Regulation 2 CFR Part 200 requires a credit to Federal funds when
participating equipment with a fair market value greater than five thousand dollars
($5,000) is credited to the project.
SECTION 13. INSPECTION AND FINAL ACCEPTANCE.
Consultant and any subconsultant shall permit City, the state, and the FHWA if
federal participating funds are used in this Agreement; to review and inspect the project
activities and files at all reasonable times during the Term of Agreement including review
and inspection on a daily basis. City shall reject or finally accept Consultant's work within
sixty (60) days after submitted to City. City shall reject work by a timely written
explanation, otherwise Consultant's work shall be deemed to have been accepted. City's
acceptance shall be conclusive as to such work except with respect to latent defects,
fraud and such gross mistakes as amount to fraud. Acceptance of any of Consultant's
work by City shall not constitute a waiver of any of the provisions of this Agreement
including, but not limited to, Section 24 "Indemnification" and Section 25 "Insurance."
SECTION 14. OWNERSHIP OF DOCUMENTS.
(a) It is mutually agreed that all materials prepared by Consultant under this
Agreement shall become the sole property of City, and Consultant shall have no property
right therein whatsoever. Immediately upon completion, expiration or termination, City
shall be entitled to, and Consultant shall deliver to City, all original maps, models, designs,
drawings, photographs, studies, surveys, reports, data, notes, computer files, files,
investigations, appraisals, inventories, analyses, estimates, and other documents
prepared, developed or discovered by Consultant in the course of providing the Services
pursuant to this Agreement to that date, whether completed or not, and other such
materials as may have been prepared or accumulated to date by Consultant in performing
this Agreement which is not Consultant's privileged information, as defined by law, or
Consultant's personnel information, along with all other property belonging exclusively to
City which is in Consultant's possession. Publication of the information derived from work
performed or data obtained in connection with services rendered under this Agreement
must be approved in writing by City.
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(b) Additionally, it is agreed that the Parties intend this to be an Agreement for
services and each considers the products and results of the services to be rendered by
Consultant hereunder to be work made for hire. Consultant acknowledges and agrees
that the work (and all rights therein, including, without limitation, copyright) belongs to and
shall be the sole and exclusive property of City without restriction or limitation upon its
use or dissemination by City, and may be used, reused or otherwise disposed of by City
without the permission of the Consultant.
(c) Nothing herein shall constitute or be construed to be any representation by
Consultant that the work product is suitable in any way for any other project except the
one detailed in this Contract. Any reuse by City for another project or project location
shall be at City's sole risk. If and to the extent that City utilizes for any purpose not related
to this Agreement any maps, models, designs, drawings, photographs, studies, surveys,
reports, data, notes, computer files, files, investigations, appraisals, inventories,
analyses, estimates, or other documents prepared, developed or discovered by
Consultant in the course of providing the Services pursuant to this Agreement,
Consultant's guarantees and warranties in Section 17 "Standard of Performance;
Familiarity With Work" of this Agreement shall not extend to such use of the maps,
models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer
files, files, investigations, appraisals, inventories, analyses, estimates, or other
documents.
(d) Applicable patent rights provisions regarding rights to inventions shall be
included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under
Government Contracts for federal-aid contracts).
(e) City may permit copyrighting reports or other agreement products. If
copyrights are permitted; the Agreement shall provide that the FHWA shall have the
royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use;
and to authorize others to use, the work for government purposes.
SECTION 15. CONSULTANT'S BOOKS AND RECORDS.
(a) For the purpose of determining compliance with Gov. Code § 8546.7,
Consultant shall maintain any and all documents and records demonstrating or relating
to Consultant's performance of the Services. The Consultant, Subconsultants, and City
shall maintain any and all books, documents, papers, accounting records, Independent
CPA Audited Indirect Cost Rate workpapers, ledgers, books of account, invoices,
vouchers, canceled checks, or other documents or records evidencing or relating to work,
services, expenditures and disbursements charged to City pursuant to this Agreement,
including, but not limited to, the costs of administering the Agreement. Any and all such
documents or records shall be maintained in accordance with generally accepted
accounting principles and shall be sufficiently complete and detailed so as to permit an
accurate evaluation of the services provided by Consultant pursuant to this Agreement.
All parties, including the Consultant's Independent CPA, shall make such workpapers and
materials available at their respective offices at all reasonable times during the Agreement
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period and for three (3) years from the date of final payment under the Agreement and to
the extent required by laws relating to audits of public agencies and their expenditures.
(b) Any and all records or documents required to be maintained pursuant to this
section shall be made available for inspection, audit and copying, at any time during
regular business hours, upon request by City or its designated representative. Copies of
such documents or records shall be provided directly to the City for inspection, audit and
copying when it is practical to do so; otherwise, unless an alternative is mutually agreed
upon, such documents and records shall be made available at Consultant's address
indicated for receipt of notices in this Agreement. The state, State Auditor, City, FHWA,
or any duly authorized representative of the Federal government having jurisdiction under
Federal laws or regulations (including the basis of Federal funding in whole or in part)
shall have access to any books, records, and documents of the Consultant,
Subconsultants, and the Consultant's Independent CPA, that are pertinent to the
AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions,
and copies thereof shall be furnished if requested without limitation.
(c) Where City has reason to believe that any of the documents or records
required to be maintained pursuant to this section may be lost or discarded due to
dissolution or termination of Consultant's business, City may, by written request, require
that custody of such documents or records be given to the City. Access to such
documents and records shall be granted to City, as well as to its successors-in-interest
and authorized representatives.
SECTION 16. INDEPENDENT CONTRACTOR.
(a) Consultant is and shall at all times remain a wholly independent contractor
and not an officer, employee or agent of City. Consultant shall have no authority to bind
City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or
against City, whether by contract or otherwise, unless such authority is expressly
conferred under this Agreement or is otherwise expressly conferred in writing by City.
(b) The personnel performing the Services under this Agreement on behalf of
Consultant shall at all times be under Consultant's exclusive direction and control.
Neither City, nor any elected or appointed boards, officers, officials, employees or agents
of City, shall have control over the conduct of Consultant or any of Consultant's officers,
employees, or agents except as set forth in this Agreement. Consultant shall not at any
time or in any manner represent that Consultant or any of Consultant's officers,
employees, or agents are in any manner officials, officers, employees or agents of City.
(c) Neither Consultant, nor any of Consultant's officers, employees or agents,
shall obtain any rights to retirement, health care or any other benefits which may
otherwise accrue to City's employees. Consultant expressly waives any claim Consultant
may have to any such rights.
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SECTION 17. STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK.
(a) Consultant represents and warrants that it has the qualifications,
experience and facilities necessary to properly perform the Services required under this
Agreement in a thorough, competent and professional manner. Consultant shall at all
times faithfully, competently and to the best of its ability, experience and talent, perform
all Services. In meeting its obligations under this Agreement, Consultant shall employ, at
a minimum, generally accepted standards and practices utilized by persons engaged in
providing services similar to the Services required of Consultant under this Agreement,
and shall use such skill, prudence, and diligence as other members of Consultant's
profession commonly possess and exercise. In addition to the general standards of
performance set forth this section, additional specific standards of performance and
performance criteria may be set forth in Exhibit "A" "Scope of Work" that shall also be
applicable to Consultants work under this Agreement. Where there is a conflict between
a general and a specific standard of performance or performance criteria, the specific
standard or criteria shall prevail over the general.
(b) Consultant warrants that (1) it has thoroughly investigated and considered
the work to be performed, (2) it has investigated the issues, regarding the scope of
services to be provided, (3) it has carefully considered how the work should be performed,
and (4) it fully understands the facilities, difficulties and restrictions attending performance
of the work under this Agreement.
SECTION 18. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND
LICENSES.
Consultant shall keep itself informed of and comply with all applicable federal, state
and local laws, statutes, codes, ordinances, regulations and rules in effect during the term
of this Agreement. Consultant shall obtain any and all licenses, permits and
authorizations necessary to perform the Services set forth in this Agreement. Neither
City, nor any elected or appointed boards, officers, officials, employees or agents of City,
shall be liable, at law or in equity, as a result of any failure of Consultant to comply with
this section.
SECTION 19. STATE PREVAILING WAGE RATES.
(a) No Consultant or Subconsultant may be awarded an Agreement containing
public work elements unless registered with the Department of Industrial Relations (DIR)
pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout
the entire term of this Agreement, including any subsequent amendments.
(b) The Consultant shall comply with all of the applicable provisions of the
California Labor Code requiring the payment of prevailing wages. The General Prevailing
Wage Rate Determinations applicable to work under this Agreement are available and on
file with the Department of Transportation's Regional/District Labor Compliance Officer
http://www.dot.ca.qov/hq/construc/LaborCompliance/documents/District-
Region Map Construction 7-8-15.pdf.
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These wage rates are made a specific part of this Agreement by reference pursuant to
Labor Code §1773.2 and will be applicable to work performed at a construction project
site. Prevailing wages will be applicable to all inspection work performed at City
construction sites, at City facilities and at off-site locations that are set up by the
construction contractor or one of its subcontractors solely and specifically to serve City
projects. Prevailing wage requirements do not apply to inspection work performed at the
facilities of vendors and commercial materials suppliers that provide goods and services
to the general public.
(c) General Prevailing Wage Rate Determinations applicable to this project
may also be obtained from the Department of Industrial Relations Internet site at
http://www.dir.ca.qov.
(d) Payroll Records
(i) Each Consultant and Subconsultant shall keep accurate certified
payroll records and supporting documents as mandated by Labor Code §1776 and as
defined in 8 CCR §16000 showing the name, address, social security number, work
classification, straight time and overtime hours worked each day and week, and the actual
per diem wages paid to each journeyman, apprentice, worker, or other employee
employed by the Consultant or Subconsultant in connection with the public work. Each
payroll record shall contain or be verified by a written declaration that it is made under
penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct.
(2) The employer has complied with the requirements of Labor Code
§1771 , §1811, and §1815 for any work performed by his or her employees on the public
works project.
(ii) The payroll records enumerated under paragraph (1) above shall be
certified as correct by the Consultant under penalty of perjury. The payroll records and
all supporting documents shall be made available for inspection and copying by City
representative's at all reasonable hours at the principal office of the Consultant. The
Consultant shall provide copies of certified payrolls or permit inspection of its records as
follows:
(1) A certified copy of an employee's payroll record shall be made
available for inspection or furnished to the employee or the employee's authorized
representative on request.
(2) A certified copy of all payroll records enumerated in paragraph
(1) above, shall be made available for inspection or furnished upon request to a
representative of City, the Division of Labor Standards Enforcement and the Division of
Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls
submitted to City, the Division of Labor Standards Enforcement and the Division of
Apprenticeship Standards shall not be altered or obliterated by the Consultant.
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(3) The public shall not be given access to certified payroll records
by the Consultant. The Consultant is required to forward any requests for certified
payrolls to the City Contract Administrator by both email and regular mail on the business
day following receipt of the request.
(iii) Each Consultant shall submit a certified copy of the records
enumerated in paragraph (1) above, to the entity that requested the records within ten
(10) calendar days after receipt of a written request.
(iv) Any copy of records made available for inspection as copies and
furnished upon request to the public or any public agency by City shall be marked or
obliterated in such a manner as to prevent disclosure of each individual's name, address,
and social security number. The name and address of the Consultant or Subconsultant
performing the work shall not be marked or obliterated.
(v) The Consultant shall inform City of the location of the records
enumerated under paragraph (1) above, including the street address, city and county,
and shall, within five (5) working days, provide a notice of a change of location and
address.
(vi) The Consultant or Subconsultant shall have ten (10) calendar days
in which to comply subsequent to receipt of written notice requesting the records
enumerated in paragraph (1) above. In the event the Consultant or Subconsultant fails
to comply within the ten (10) day period, he or she shall, as a penalty to City, forfeit one
hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until
strict compliance is effectuated. Such penalties shall be withheld by City from payments
then due. Consultant is not subject to a penalty assessment pursuant to this section due
to the failure of a Subconsultant to comply with this section.
(e) When prevailing wage rates apply, the Consultant is responsible for
verifying compliance with certified payroll requirements. Invoice payment will not be made
until the invoice is approved by the City.
(f) Penalty
(i) The Consultant and any of its Subconsultants shall comply with
Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the Consultant and any
Subconsultant shall forfeit to the City a penalty of not more than two hundred dollars
($200) for each calendar day, or portion thereof, for each worker paid less than the
prevailing rates as determined by the Director of DIR for the work or craft in which the
worker is employed for any public work done under the Agreement by the Consultant or
by its Subconsultant in violation of the requirements of the Labor Code and in particular,
Labor Code §§1770 to 1780, inclusive.
(ii) The amount of this forfeiture shall be determined by the Labor
Commissioner and shall be based on consideration of mistake, inadvertence, or neglect
of the Consultant or Subconsultant in failing to pay the correct rate of prevailing wages,
or the previous record of the Consultant or Subconsultant in meeting their respective
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prevailing wage obligations, or the willful failure by the Consultant or Subconsultant to
pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to
pay the correct rates of prevailing wages is not excusable if the Consultant or
Subconsultant had knowledge of the obligations under the Labor Code. The Consultant
is responsible for paying the appropriate rate, including any escalations that take place
during the term of the Agreement.
(iii) In addition to the penalty and pursuant to Labor Code §1775, the
difference between the prevailing wage rates and the amount paid to each worker for
each calendar day or portion thereof for which each worker was paid less than the
prevailing wage rate shall be paid to each worker by the Consultant or Subconsultant.
(iv) If a worker employed by a Subconsultant on a public works project is
not paid the general prevailing per diem wages by the Subconsultant, the prime
Consultant of the project is not liable for the penalties described above unless the prime
Consultant had knowledge of that failure of the Subconsultant to pay the specified
prevailing rate of wages to those workers or unless the prime Consultant fails to comply
with all of the following requirements:
(1) The Agreement executed between the Consultant and the
Subconsultant for the performance of work on public works projects shall include a copy
of the requirements in Labor Code §§ 1771 , 1775, 1776, 1777.5, 1813, and 1815.
(2) The Consultant shall monitor the payment of the specified
general prevailing rate of per diem wages by the Subconsultant to the employees by
periodic review of the certified payroll records of the Subconsultant.
(3) Upon becoming aware of the Subconsultant's failure to pay the
specified prevailing rate of wages to the Subconsultant's workers, the Consultant shall
diligently take corrective action to halt or rectify the failure, including but not limited to,
retaining sufficient funds due the Subconsultant for work performed on the public works
project.
(4) Prior to making final payment to the Subconsultant for work
performed on the public works project, the Consultant shall obtain an affidavit signed
under penalty of perjury from the Subconsultant that the Subconsultant had paid the
specified general prevailing rate of per diem wages to the Subconsultant's employees on
the public works project and any amounts due pursuant to Labor Code §1813.
(v) Pursuant to Labor Code §1775, City shall notify the Consultant on a
public works project within fifteen (15) calendar days of receipt of a complaint that a
Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
(vi) If City determines that employees of a Subconsultant were not paid
the general prevailing rate of per diem wages and if City did not retain sufficient money
under the Agreement to pay those employees the balance of wages owed under the
general prevailing rate of per diem wages, the Consultant shall withhold an amount of
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moneys due the Subconsultant sufficient to pay those employees the general prevailing
rate of per diem wages if requested by City.
(g) Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The Consultant shall forfeit, as a
penalty to the City, twenty-five dollars ($25) for each worker employed in the execution of
the Agreement by the Consultant or any of its Subconsultants for each calendar day
during which such worker is required or permitted to work more than eight (8) hours in
any one calendar day and forty (40) hours in any one calendar week in violation of the
provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except
that work performed by employees in excess of eight (8) hours per day, and forty (40)
hours during any one week, shall be permitted upon compensation for all hours worked
in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one
and one half (1.5) times the basic rate of pay, as provided in §1815.
(h) Employment of Apprentices
(i) Where either the prime Agreement or the sub-agreement exceeds
thirty thousand dollars ($30,000), the Consultant and any subconsultants under him or
her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and
1777.7 in the employment of apprentices.
(ii) Consultants and subconsultants are required to comply with all Labor
Code requirements regarding the employment of apprentices, including mandatory ratios
of journey level to apprentice workers. Prior to commencement of work, Consultant and
subconsultants are advised to contact the DIR Division of Apprenticeship Standards
website at https://www.dir.ca.gov/das/, for additional information regarding the
employment of apprentices and for the specific journey-to- apprentice ratios for the
Agreement work. The Consultant is responsible for all subconsultants' compliance with
these requirements. Penalties are specified in Labor Code §1777.7.
SECTION 20. NONDISCRIMINATION AND STATEMENT OF COMPLIANCE.
(a) The Consultant's signature affixed herein and dated shall constitute a
certification under penalty of perjury under the laws of the State of California that the
Consultant has, unless exempt, complied with the nondiscrimination program
requirements of Gov. Code §12990 and 2 CCR § 8103.
(b) During the performance of this Agreement, Consultant and its
subconsultants shall not deny the Agreement's benefits to any person on the basis of
race, religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender, gender identity,
gender expression, age, sexual orientation, or military and veteran status, nor shall they
unlawfully discriminate, harass, or allow harassment against any employee or applicant
for employment because of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information, marital status, sex,
gender, gender identity, gender expression, age, sexual orientation, or military and
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veteran status. Consultant and subconsultants shall insure that the evaluation and
treatment of their employees and applicants for employment are free from such
discrimination and harassment.
(c) Consultant and subconsultants shall comply with the provisions of the Fair
Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations
promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-
11139.5, and the regulations or standards adopted by City to implement such article. The
applicable regulations of the Fair Employment and Housing Commission implementing
Gov. Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this
Agreement by reference and made a part hereof as if set forth in full.
(d) Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the City upon reasonable notice at any time during the
normal business hours, but in no case less than twenty-four (24) hours' notice, to such of
its books, records, accounts, and all other sources of information and its facilities as said
Department or City shall require to ascertain compliance with this clause.
(e) Consultant and its subconsultants shall give written notice of their
obligations under this clause to labor organizations with which they have a collective
bargaining or other Agreement.
(f) Consultant shall include the nondiscrimination and compliance provisions
of this clause in all subcontracts to perform work under this Agreement.
(g) The Consultant, with regard to the work performed under this Agreement,
shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et
seq.). Title VI provides that the recipients of federal assistance will implement and
maintain a policy of nondiscrimination in which no person in the United States shall, on
the basis of race, color, national origin, religion, sex, age, disability, be excluded from
participation in, denied the benefits of or subject to discrimination under any program or
activity by the recipients of federal assistance or their assignees and successors in
interest.
(h) The Consultant shall comply with regulations relative to non-discrimination
in federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21
- Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the Consultant shall
not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5,
including employment practices and the selection and retention of Subconsultants.
SECTION 21. CONFLICTS OF INTEREST.
(a) Consultant covenants that neither it, nor any officer or principal of its firm,
has or shall acquire any interest, directly or indirectly, which would conflict in any manner
with the interests of City or which would in any way hinder Consultant's performance of
the Services. Consultant further covenants that in the performance of this Agreement, no
person having any such interest shall be employed by it as an officer, employee, agent
or subcontractor without the express written consent of the City Manager. Consultant
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agrees to at all times avoid conflicts of interest or the appearance of any conflicts of
interest with the interests of City in the performance of this Agreement.
(b) City may determine that Consultant must disclose its financial interests by
completing and filing a Fair Political Practices Commission Form 700, Statement of
Economic Interests. If such a determination is made, Consultant shall file the subject
Form 700 with the City Clerk's Office pursuant to the written instructions provided by the
Office of the City Clerk within ten (10) days of the request.
(c) City understands and acknowledges that Consultant is, as of the date of
execution of this Agreement, independently involved in the performance of non-related
services for other governmental agencies and private parties. Consultant is unaware of
any stated position of City relative to such projects. Any future position of City on such
projects shall not be considered a conflict of interest for purposes of this section.
(d) City understands and acknowledges that Consultant will, perform non-
related services for other governmental agencies and private parties following the
completion of the Services under this Agreement. Any such future service shall not be
considered a conflict of interest for purposes of this section.
(e) During the term of this Agreement, the Consultant shall disclose any
financial, business, or other relationship with City that may have an impact upon the
outcome of this Agreement or any ensuing City construction project. The Consultant shall
also list current clients who may have a financial interest in the outcome of this Agreement
or any ensuing City construction project which will follow.
(f) Consultant certifies that it has disclosed to City any actual, apparent, or
potential conflicts of interest that may exist relative to the services to be provided pursuant
to this Agreement. Consultant agrees to advise City of any actual, apparent or potential
conflicts of interest that may develop subsequent to the date of execution of this
Agreement. Consultant further agrees to complete any statements of economic interest
if required by either City ordinance or State law.
(g) The Consultant hereby certifies that it does not now have nor shall it acquire
any financial or business interest that would conflict with the performance of services
under this Agreement.
(h) The Consultant hereby certifies that the Consultant or subconsultant and
any firm affiliated with the Consultant or subconsultant that bids on any construction
contract or on any Agreement to provide construction inspection for any construction
project resulting from this Agreement, has established necessary controls to ensure a
conflict of interest does not exist. An affiliated firm is one, which is subject to the control
of the same persons, through joint ownership or otherwise.
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SECTION 22. REBATES, KICKBACKS, OR OTHER UNLAWFUL
CONSIDERATION.
The Consultant warrants that this Agreement was not obtained or secured through
rebates, kickbacks or other unlawful consideration either promised or paid to any City
employee. For breach or violation of this warranty, City shall have the right, in its
discretion, to terminate this Agreement without liability, to pay only for the value of the
work actually performed, or to deduct from this Agreement price or otherwise recover the
full amount of such rebate, kickback or other unlawful consideration.
SECTION 23. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
(a) All financial, statistical, personal, technical, or other data and information
gained or work product produced by Consultant in performance of this Agreement shall
be considered confidential, unless such information is in the public domain or already
known to Consultant. Consultant shall not release or disclose any such information or
work product to persons or entities other than City without prior written authorization from
the City Manager, except as may be required by law.
(b) Consultant, its officers, employees, agents or subcontractors, shall not,
without prior written authorization from the City Manager or unless requested by the City
Attorney of City, voluntarily provide declarations, letters of support, testimony at
depositions, response to interrogatories or other information concerning the work
performed under this Agreement. Response to a subpoena or court order shall not be
considered "voluntary" provided Consultant gives City notice of such court order or
subpoena.
(c) If Consultant, or any officer, employee, agent or subcontractor of
Consultant, provides any information or work product in violation of this Agreement, then
City shall have the right to reimbursement and indemnity from Consultant for any
damages, costs and fees, including attorney's fees, caused by or incurred as a result of
Consultant's conduct.
(d) Consultant shall promptly notify City should Consultant, its officers,
employees, agents or subcontractors be served with any summons, complaint, subpoena,
notice of deposition, request for documents, interrogatories, request for admissions or
other discovery request, court order or subpoena from any party regarding this Agreement
and the work performed thereunder. City retains the right, but has no obligation, to
represent Consultant or be present at any deposition, hearing or similar proceeding.
Consultant agrees to cooperate fully with City and to provide City with the opportunity to
review any response to discovery requests provided by Consultant. However, this right
to review any such response does not imply or mean the right by City to control, direct,
or rewrite said response.
(e) Permission to disclose information on one occasion, or public hearing held
by City relating to the Agreement, shall not authorize Consultant to further disclose such
information, or disseminate the same on any other occasion.
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(f) Consultant shall not comment publicly to the press or any other media
regarding the Agreement or City's actions on the same, except to City's staff, Consultant's
own personnel involved in the performance of this Agreement, at public hearings or in
response to questions from a Legislative committee.
(g) Consultant shall not issue any news release or public relations item of any
nature, whatsoever, regarding work performed or to be performed under this Agreement
without prior review of the contents thereof by City, and receipt of City's written
permission.
(h) Any subcontract entered into as a result of this Agreement shall contain all
of the provisions of this Section.
SECTION 24. INDEMNIFICATION.
(a) Indemnification by Consultant. As provided under Civil Code Section
2782.8, Consultant shall indemnify, protect, defend and hold harmless City and any and
all of its officials, employees and agents ("Indemnified Parties") from and against any and
all claims. actions and proceedings (whether at law or equity, administrative or judicial),
demands, orders, judgments, losses, liabilities, damages, costs and expenses, including
attorney's fees and costs, (collectively "Claims") to the extent same arise out of, pertain
to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, its
officers, agents, employees or sub-consultants (or any entity or individual that Consultant
shall bear the legal liability thereof) in the performance of professional services under this
Agreement, with the understanding that in the event Claims are found by the trier of fact
to have been caused by the joint or concurrent negligence of the City and its contractors
and Consultants, and Consultant, damages and expenses from both indemnity and duty
to defend obligations shall be borne by each party in proportion to its negligence.
(b) Indemnification from Subcontractors. Consultant agrees to obtain executed
indemnity agreements with provisions identical to those set forth here in this section from
each and every sub-consultant, subcontractor or any other person or entity involved by,
for, with or on behalf of Consultant in the performance of this Agreement naming the
Indemnified Parties as additional indemnitees. In the event Consultant fails to obtain such
indemnity obligations from others as required here, Consultant agrees to be fully
responsible according to the terms of this section. Failure of City to monitor compliance
with these requirements imposes no additional obligations on City and will in no way act
as a waiver of any rights hereunder. This obligation to indemnify and defend City as set
forth herein is binding on the successors, assigns or heirs of Consultant and shall survive
the termination of this Agreement or this section.
(c) City's Negligence. The provisions of this section do not apply to Claims
occurring as a result of City's sole negligence. The provisions of this section shall not
release City from liability arising from gross negligence or willful acts or omissions of City
or any and all of its officials, employees and agents.
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SECTION 25. INSURANCE.
Consultant agrees to obtain and maintain in full force and effect during the term of
this Agreement the insurance policies set forth in Exhibit "C" "Insurance" and made a part
of this Agreement. All insurance policies shall be subject to approval by City as to form
and content. These requirements are subject to amendment or waiver if so approved in
writing by the City Manager. Consultant agrees to provide City with copies of required
policies upon request.
SECTION 26. ASSIGNMENT.
The expertise and experience of Consultant are material considerations for this
Agreement. City has an interest in the qualifications and capability of the persons and
entities who will fulfill the duties and obligations imposed upon Consultant under this
Agreement. In recognition of that interest, Consultant shall not assign or transfer this
Agreement or any portion of this Agreement or the performance of any of Consultant's
duties or obligations under this Agreement without the prior written consent of the City.
Any attempted assignment shall be ineffective, null and void, and shall constitute a
material breach of this Agreement entitling City to any and all remedies at law or in equity,
including termination of this Agreement pursuant to Section 28 "Termination of
Agreement." City acknowledges, however, that Consultant, in the performance of its
duties pursuant to this Agreement, may utilize subcontractors.
SECTION 27. CONTINUITY OF PERSONNEL.
Consultant shall make every reasonable effort to maintain the stability and
continuity of Consultant's staff and subcontractors, if any, assigned to perform the
Services. Consultant shall notify City of any changes in Consultant's staff and
subcontractors, if any, assigned to perform the Services prior to and during any such
performance. There shall be no change in Consultant's Project Management or members
of the project team, as listed in the approved Cost Proposal without prior written approval
by City pursuant to Section 35 "Administration and Implementation" of this Agreement.
SECTION 28. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by
giving thirty (30) days written notice of termination to Consultant. In the event such notice
is given, Consultant shall cease immediately all work in progress.
(b) Consultant may terminate this Agreement for cause at any time upon thirty
(30) days written notice of termination to City.
(c) If either Consultant or City fail to perform any material obligation under this
Agreement, then, in addition to any other remedies, either Consultant, or City may
terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Consultant or City, all property
belonging exclusively to City which is in Consultant's possession shall be returned to City.
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Consultant shall furnish to City a final invoice for work performed and expenses incurred
by Consultant, prepared as set forth in Section 5 "Compensation and Method of Payment"
of this Agreement. This final invoice shall be reviewed and paid in the same manner as
set forth in Section 5 "Compensation and Method of Payment" of this Agreement.
(e) City may temporarily suspend this Agreement, at no additional cost to City,
provided that Consultant is given written notice of temporary suspension. If City gives
such notice of temporary suspension, Consultant shall immediately suspend its activities
under this Agreement. A temporary suspension may be issued concurrent with the notice
of termination provided for in subsection A of this section.
(f) Notwithstanding any provisions of this Agreement, Consultant shall not be
relieved of liability to City for damages sustained by City by virtue of any breach of this
Agreement by Consultant, and City may withhold any payments due to Consultant until
such time as the exact amount of damages, if any, due City from Consultant is
determined.
(g) In the event of termination, Consultant shall be compensated as provided
for in this Agreement, except as provided in Section 12 Equipment Purchase and Other
Capital Expenditures Part C.
SECTION 29. DEFAULT.
In the event that Consultant is in default under the terms of this Agreement, the
City shall not have any obligation or duty to continue compensating Consultant for any
work performed after the date of default. Instead, the City may give notice to Consultant
of the default and the reasons for the default. The notice shall include the timeframe in
which Consultant may cure the default. This timeframe is presumptively thirty (30) days,
but may be extended, though not reduced, if circumstances warrant. During the period
of time that Consultant is in default, the City shall hold all invoices and shall, when the
default is cured, proceed with payment on the invoices. In the alternative, the City may,
in its sole discretion, elect to pay some or all of the outstanding invoices during the period
of default. If Consultant does not cure the default, the City may take necessary steps to
terminate this Agreement under Section 28 "Termination of Agreement." Any failure on
the part of the City to give notice of the Consultant's default shall not be deemed to result
in a waiver of the City's legal rights or any rights arising out of any provision of this
Agreement.
SECTION 30. EXCUSABLE DELAYS.
Consultant shall not be liable for damages, including liquidated damages, if any,
caused by delay in performance or failure to perform due to causes beyond the control of
Consultant. Such causes include, but are not limited to, acts of God, acts of the public
enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods,
epidemics, strikes, embargoes, and unusually severe weather. The term and price of this
Agreement shall be equitably adjusted for any delays due to such causes.
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SECTION 31. CLAIMS FILED BY CITYS CONSTRUCTION CONTRACTOR.
(a) If claims are filed by City's construction contractor relating to work
performed by Consultant's personnel, and additional information or assistance from
Consultant's personnel is required in order to evaluate or defend against such claims;
Consultant agrees to make its personnel available for consultation with City's construction
contract administration and legal staff and for testimony, if necessary, at depositions and
at trial or arbitration proceedings.
(b) Consultant's personnel that City considers essential to assist in defending
against construction contractor claims will be made available on reasonable notice from
City. Consultation or testimony will be reimbursed at the same rates, including travel
costs that are being paid for Consultant's personnel services under this Agreement.
(c) Services of Consultant's personnel in connection with City's construction
contractor claims will be performed pursuant to a written contract amendment, if
necessary, extending the termination date of this Agreement in order to resolve the
construction claims.
SECTION 32. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and
available to City as public records, and which are necessary for carrying out the Services
shall be furnished to Consultant in every reasonable way to facilitate,without undue delay,
the Services to be performed under this Agreement.
SECTION 33. NOTICES.
All notices required or permitted to be given under this Agreement shall be in
writing and shall be personally delivered, or sent by telecopier or certified mail, postage
prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Consultant: Kimley-Horn and Associates, Inc.
Attn: Jean Fares, P.E., Sr. VP
660 S. Figueroa St., Ste. 2050
Los Angeles, CA 90017
Notice shall be deemed effective on the date personally delivered or transmitted
by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the
United States Postal Service.
- 24 -
SECTION 34. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Consultant
represents and warrants that he/she/they has/have the authority to so execute this
Agreement and to bind Consultant to the performance of its obligations hereunder.
SECTION 35. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or
her designated representative. The City Manager shall have the authority to issue
interpretations and to make amendments to this Agreement, including amendments that
commit additional funds, consistent with Section 37 "Amendment" and the City Manager's
contracting authority under the Cathedral City Municipal Code.
SECTION 36. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the Parties.
SECTION 37. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in
writing and approved by the Consultant and by the City. The City Manager shall have the
authority to approve any amendment to this Agreement if the total compensation under
this Agreement, as amended, would not exceed the City Manager's contracting authority
under the Cathedral City Municipal Code. All other amendments shall be approved by
the City Council. The Parties agree that the requirement for written modifications cannot
be waived and that any attempted waiver shall be void. Consultant shall only commence
work covered by an amendment after the amendment is executed and notification to
proceed has been issued. There shall be no change in Consultant's Project Manager or
members of the project team, as listed in the approved Cost Proposal, which is a part of
this Agreement without prior written approval by City.
SECTION 38. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver
by any Party of any breach of the provisions of this Agreement shall not constitute a
waiver of any other provision nor a waiver of any subsequent breach or violation of any
provision of this Agreement. Acceptance by City of any work or services by Consultant
shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 39. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the
laws of the State of California. In the event of litigation between the Parties, venue in
state trial courts shall lie exclusively in the County of Riverside, California. In the event
- 25 -
of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of
California, in Riverside.
SECTION 40. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any
provision of this Agreement, the prevailing Party in such litigation or other proceeding
shall be entitled to an award of reasonable attorney's fees, costs and expenses, in
addition to any other relief to which it may be entitled.
SECTION 41. CONTINGENT FEE.
Consultant warrants, by execution of this Agreement that no person or selling
agency has been employed, or retained, to solicit or secure this Agreement upon an
agreement or understanding, for a commission, percentage, brokerage, or contingent fee,
excepting bona fide employees, or bona fide established commercial or selling agencies
maintained by Consultant for the purpose of securing business. For breach or violation
of this warranty, City has the right to annul this Agreement without liability; pay only for
the value of the work actually performed, or in its discretion to deduct from the Agreement
price or consideration, or otherwise recover the full amount of such commission,
percentage, brokerage, or contingent fee.
SECTION 42. PROHIBITION OF EXPENDING LOCAL AGENCY STATE OR
FEDERAL FUNDS FOR LOBBYING.
(a) Consultant certifies to the best of his or her knowledge and belief that:
(i) No State, Federal, or City 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 local, 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 or making of this Agreement, or with the extension, continuation,
renewal, amendment, or modification of this Agreement.
(ii) 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 agency, a Member of Congress, an officer or employee of Congress, or
an employee of a member of Congress in connection with this 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 31
U.S.C. §1352. Any person who fails to file the required certification shall be subject to a
civil penalty of not less than ten thousand dollars ($10,000) and not more than one
hundred thousand dollars ($100,000) for each such failure.
- 26 -
(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 sub-agreements,
which exceed one hundred thousand dollars ($100,000), and that all such subrecipients
shall certify and disclose accordingly.
SECTION 43. DEBARMENT AND SUSPENSION.
(a) The Consultant's signature affixed herein shall constitute a certification
under penalty of perjury under the laws of the State of California, that the CONSULTANT
or any person associated therewith in the capacity of owner, partner, director, officer or
manager:
(i) Is not currently under suspension, debarment, voluntary exclusion,
or determination of ineligibility by any federal agency;
(ii) Has not been suspended, debarred, voluntarily excluded, or
determined ineligible by any federal agency within the past three (3) years;
(iii) Does not have a proposed debarment pending; and
(iv) 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 three (3) years.
(b) Any exceptions to this certification must be disclosed to City. Exceptions will
not necessarily result in denial of recommendation for award but will be considered in
determining responsibility. Disclosures must indicate the party to whom the exceptions
apply, the initiating agency, and the dates of agency action.
(c) Exceptions to the Federal Government Excluded Parties List System
maintained by the U.S. General Services Administration are to be determined by FHWA.
SECTION 44. NATIONAL LABOR RELATIONS BOARD CERTIFICATION.
In accordance with Public Contract Code Section 10296, Consultant hereby states
under penalty of perjury that no more than one final unappealable finding of contempt of
court by a federal court has been issued against Consultant within the immediately
preceding two-year period, because of Consultant's failure to comply with an order of a
federal court that orders Consultant to comply with an order of the National Labor
Relations Board.
SECTION 45. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire,
complete, final and exclusive expression of the Parties with respect to the matters
addressed therein and supersedes all other agreements or understandings, whether oral
or written, or entered into between Consultant and City prior to the execution of this
- 27 -
Agreement. No statements, representations or other agreements, whether oral or written,
made by any Party which are not embodied herein shall be valid and binding.
SECTION 46. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by
any court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement shall not be affected thereby and the Agreement shall be
read and construed without the invalid, void or unenforceable provision(s).
SECTION 47. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the
terms of any Exhibit hereto, or with the terms of any document incorporated by reference
into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date and year first-above written.
CITY OF CATHEDRAL CITY KIMLEY-HORN AND ASSOCIATES, INC.
ealt-614.11(-1At
Charles P. McClendon
City Manager Its: jV_. ;c.e
ATTEST: 4(1/161 pti &?r'Z?
BY: (,k,Sca �1�t�n 4
Its: f�SSo c; et, _
Tracey R. artine
City Clerk
APPROVED AS • FO'
KHAcA
15 •
Eric S. Vail
City Attorney
NOTE: CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S
BUSINESS ENTITY.
- 28 -
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On 0Ct 1G,hr� ) i-C , 2020 ,
before me, (,� Ce t M-1-1-n xi jZ L1 C.
Date .J Name And Title Of Officer(e.g."Jane Doe,Notary Public")
personally appeared Jt!✓G t.) trees ,
Name of Signer(s)
who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the
r rFRATICE r
COMM. #2282291 z entity upon behalf of which the person(s) acted, executed the
° " o instrument.
a �;• Notary Public -California
z snj M Comm.ELos pires Mar.eles 22,2023 I certify under PENALTY OF PERJURY under the laws of the State
of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature otary ublic
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT
Signer's Name:
Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General
Attorney-In-Fact Number Of Pages
Trustee(s)
Guardian/Conservator
Other:
Date Of Document
Signer is representing:
Name Of Person(s)Or Entity(ies)
Signer(s)Other Than Named Above
I
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )
On iGnur.n\ )`,;
EXHIBIT "A"
SCOPE OF SERVICES
PROJECT SCHEDULE
A-1
..,... PROPOSAL FOR
° • PROFESSIONAL ENGINEERING SERVICES, HSIP CYCLE 9
' PROJECT - FEDERAL PROJECT: HSIPL-5430(035)
44:* _ , DATE PALM DRIVE AND VARNER ROAD SAFETY
= IMPROVEMENTS (CITY PROJECT PN 8751)
BID NUMBER: BID B19-08E
Our scope of services includes the following key tasks:
1. Project Management/Administration
2. Field Work/Utility Coordination/Preliminary Plans
3. Environmental Documentation
4. Plans, Specifications, and Estimate(PS&E)
TASK 1 - PROJECT MANAGEMENT / ADMINISTRATION
This task will consist of project coordination with team,administration,setting up and attendance at project meetings. Kimley-Horn's administration efforts
include initial development and maintenance of project schedule,work plan,budget,and filing system and processing timely invoices/progress reports on
a monthly basis.Wewill create and maintain a simplified critical path method schedule,updating it as needed to manage the project,and as requested by
the City.
Kimley-Horn assumes that it will attend up to four(4)in-person meetings with City for the project kickoff,subsequent to the 90%,and 100%design
reviews,and one City Council meeting.Kimley-Horn will coordinate with the City to develop meeting agendas for each meeting.After each meeting,Kimley-
Horn will prepare and distribute minutes to document design decisions and action items that arise out of each meeting,which will be distributed to each
meeting attendee.
Task 1 Deliverables:
• Monthly Progress Reports
- Meeting Agendas
- Electronic copy of meeting minutes
• Schedule Updates
TASK 2 - FIELD WORK / UTILITY COORDINATION / PRELIMINARY PLANS
This task includes collecting data and information from the City,coordination with utility companies,field reconnaissance,pavement evaluation,review and
research of City and County Survey records and existing Right-of-Way drawings,and planimetricmapping ofVarner Road(+/-18,000 LF)and Date Palm
Drive(+/-3,700 LF).
Kimley-Horn will coordinate with the City to collect existing available data forthe design.Sample data that will be requested includes but is not limited to
the following:
• Utility contacts
• Existing as-builts pertinent tothe projectwithin the project vicinity including,but not limited to roadway,communication as-builts,powerlines,gas line,
waterlines,and sewer lines.
Kimley-Horn will perform utility coordination for the project.Record base maps of the utility companies will be requested,and we will notify the various
agencies and request that if they plan to install new facilities within the project area that they coordinate with the City as soon as possible.Utility records
will be scanned and catalogued as they are received.Utility informationwill be incorporated intothe project base map.Kimley-Horn will reviewand analyze
received utility record plans to identify potential conflicts with the proposed improvements.
Kimley-Horn will coordinate with utilities up to the start of construction to facilitate the adjustment and relocation of their facilities if necessary.It is
assumed that utility coordination will transfer to another responsible party at the start of construction.
Kimley-Horn will conductfield reconnaissance of the project corridorfollowing the project.As part of the field review,Kimley-Horn will identify any potential
issues that may affect the proposed design such as pavement conditions,existing facilities,and sight distance limitations.
Cathedral City I TRTS89022.19 16 Kimley>>>Horn
=,.: _ PROPOSAL FOR
116'; • - PROFESSIONAL ENGINEERING SERVICES, HSIP CYCLE 9
_ PROJECT - FEDERAL PROJECT: HSIPL-5430(035)
• DATE PALM DRIVE AND VARNER ROAD SAFETY
- s IMPROVEMENTS (CITY PROJECT: PN 8751) •
BID NU :.ER: BID B1•-08E •
• -
Kimley-Horn will obtain existing asphaltconcretethicknessesand document pavement condition.Based upon our pavement field evaluation,
recommendations for rumble strip installation will be provided.
To obtain the existing asphalt thicknesses,Kimley-Horn proposes to collect approximately five,5-inch diameter cores utilizing a portable asphalt concrete
core drill.The locations will be scattered throughout the project limits. Core locations will be repaired with rapid set grout material.
We will utilize the as-builts,field notes, right-of-way research, and survey topography to create a base map for the proposed improvements.We will
prepare preliminary improvement plans for City review.
Task 2 Deliverables:
• Planimetric Mapping with Right-of-Way delineation and Utility Base Maps
• Documentation with Utility Companies
• Pavement Condition Summary
• Preliminary Improvement Plans
TASK 3 — ENVIRONMENTAL DOCUMENTATION
Preliminary Environmental Studies
The following environmental scope of services is based on the following key assumptions:
- One project design alternative will be evaluated through environmental review.
• A Preliminary Environmental Study(PES)is all that will be required for approval and no technical studies will be required.Technical studies can be
provided as an additional service.
Preliminary Environmental Study (PES)
A key factor in the project's NEPA clearance will be consistency and compliance with Caltrans'Environmental Handbook which provides Caltrans'guidance
forthe development and processing of federal environmental documentation.The initial and most critical step involves the successful preparation of a
Preliminary Environmental Study(PES)Form.A PES will be drafted for City review.The PES identifies the necessary level of technical assessment required
to sup-port the environmental documentation for each project and generally summarizes specificenvironmental issues that may affect project approval,
programming,scheduling,design considerations,and project costs.Upon completion of City review,the PES forms will be submitted to Caltrans for review
and approval.The Caltrans approved PES forms will act asthework scopefortherequired NEPA compliance documentation.As noted above,this scope
assumes that no technical studies will be required,and the Project will qualify for a CE/CE.Should one or more location trigger the need for technical
studies,Kimley-Horn could provide the required technical studies under separate scope and fee,or the locations could be handled under separate
environmental documents(still likely a CE,but a"CE With Studies").
Environmental Document
Based upon our preparation of environmental documentation for similar projects and a review of the projects as presented in the RFP,Kimley-Horn
anticipates that the appropriate environmental document will be a Categorical Exemption(CE)under CEQA and a Categorical Exclusion(CatEx)under NEPA.
Per District 08 protocols,District staff will prepare the CE Checklist and would also prepare the CE/CE documents.District staff recommend a Visual Impact
Analysis(VIA)Questionnaire,which Kimley-Horn would prepare.
Task 3 Deliverables:
- Draft PES for City review including VIA Questionnaire(one round of review;electronic transmittal)
• Revised PES for City and Caltrans review(one round of concurrent review;electronic transmittal)
• Final PES to Caltrans(electronic transmittal to Caltrans)
Cathedral City l TRTS89022.19 17 Kimley >>F j or t i
;._ PROPOSAL FOR
' i '` PROFESSIONAL ENGINEERING SERVICES,HSIP CYCLE 9 ..
- PROJECT - FEDERAL PROJECT: HSIPL-5430(035)
'�' DATE PALM DRIVE AND VARNER ROAD SAFETY
l .�j s-' -. rI IMPROVEMENTS (CITY PROJECT PN 8751)
BID NUMBER: B. !- 19-08E
ri„..ar.„....
3.1 ROW Certification
Kimley-Horn understandsthe project will be completed within the publicright-of-way with the exception of entering Caltrans ROW and Caltrain ROW,
the project will not require any utility relocation or right-of-way acquisition or easements.Kimley-Horn will preparea draft ROWcertification packagefor
the City to review and comment(Permits to enter and construct on Caltrans property and Caltrain property).City comments will be incorporated prior
to submitting the ROWcertification pack-age to Caltrans.One set of consolidated comments from Caltrans will be incorporated to prepare a final ROW
certification for the City to sign and then submit as final to Caltrans.This scope assumes the City will be responsible for obtaining signatures on the permits
toenter,andwhere City signaturesare required.This scope does not include assistance with preparation ofaCity resolution related to ROWcertification.If
any other work will occur outside of the right-of-way in addition to what is anticipated in this scope of work,additional scope and fee would be required.
TASK 4 - PLANS, SPECIFICATIONS, AND ESTIMATE (PS&E)
4.1 Prepare 90% PS&E
Kimley-Horn will prepare 90%plans,specifications,and an initial engineers opinion of probable construction costs(estimate)for the construction of
the following safety improvements;Pavement rumble strips along the centerline and edge lines of the Varner Road and Date Palm Drive,Guardrail on
the outside of two roadway curves(Varner Road and Date Palm Drive),Replacement of the existing standard and oversized stop signs at 3 all-way stop
intersections with solar-powered flashing stop signs(Date Palm DriveNarner Road,Varner Road/Edom Hill Road,Varner Road/Mountain View Road)
Plans will be completed in AutoCAD Civil 3D Version 2015 or later,and will be presented at 1:40 scale(double banked).
An initial engineer's opinion of probable construction cost will be developed based on the preliminary plans.A project contingency will be included in the
engineer's opinion of probable costs to provide for cost increases and unknown issues that may arise but cannot be specifically identified at this stage.
Kimley-Horn will prepare technical special provisions and contract documents The base documents that the special provisions will be based on is the City
of Cathedral City Traffic Signal Specification and Caltrans 2018 Standard Specifications.
Kimley-Horn will utilize City and Caltrans documents as design standards, including, but not limited to,the following:
• City of Cathedral City Standard Plans and Details
• Caltrans Standard Plans
- Caltrans Highway Design Manual&DIBs
• City of Cathedral City Standard Special Provisions
- CADD Users'Manual of Instruction
• Local Assistance Procedures Manual
Task 4.1—95% PS&E Deliverables:
We anticipate the following preliminary plan sheet counts for the project:
1. Cover sheet(1 Sheet)
2. Notes,legends,and construction details(3 sheets)
3. Combined Roadway and Signing—Striping plans(10 sheets)
Estimated Total Sheets: 14 Sheets
Cathedral City I TRTS89022.19 18 Kimley>>>Horn
m ar :..i- L - PROPOSAL FOR
' ;- } , PROFESSIONAL ENGINEERING SERVICES,HSIP CYCLE 9
PROJECT - FEDERAL PROJECT: HSIPL-5430(035)
i � DATE PALM DRIVE AND VARNER ROAD SAFETY
' at = -'' .AP d IMPROVEMENTS (CITY PROJECT PN 8751)
• '''' = BID NUMBER: BID B19-08E
4 2 Prepare 100% PS&E
Based on one set of non-conflicting comments from the 90%PS&E comments,Kimley-Horn will advance the PS&E to the 100%level of design.It is
expected that the comments will not result in a major change in design.Kimley-Horn will adjust the plans and technical specifications based on the City
comments accordingly.Kimley-Horn will prepare a comment response matrix to be submitted with the Final submittal.The comment response matrix will
include the original comments,Kimley-Horn responses to the comments,and final resolution.
A licensed professional engineer will conduct a peer review and QC/QA of the design plans,schedules,and technical special provisions.A licensed
professional engineer will stamp and sign all plan sheets for this submittal.
Kimley-Horn will submit one(1)24"x36"hard copy and.pdfelectroniccopy of the 100%plans and one(1)hardcopy and an electronic copy in Word format
of the technical special provisions to the City for review.The 100%engineer's opinion of probable cost will be submitted to the City in.pdf
electronic format.
Task 4.2—100% PS&E Deliverables:
• One(1)set of 24"x36"hardcopy 100%plans
• One(1)set of hardcopy technical special provisions
• 100%Plans,Specifications,and Engineer's Opinion of Probable Construction Costs in pdf electronic format
Cathedral City I TRTS89022 19 19 Kimley>>>Horn
I.4' ..�t / ,. PROPOSAL FOR
a-, rel PROFESSIONAL ENGINEERING SERVICES, HSIP CYCLE 9
PROJECT - FEDERAL PROJECT: HSIPL-5430(035)
''.4-.--'7'1'1' DATE PALM DRIVE AND VARNER ROAD SAFETY
:�4 IMPROVEMENTS (CITY PROJECT: PN 8751)
."4- .. BID NUMBER: BID B19-08E
r
E. PROJECT SCHEDULE
•4 ID Task Name Duration I Start Finish 2020
A J F 1 M AMJJON D ,I
1 Notice to Proceed 1 day? Mon 1/6/20 Mon 1/6/20
A 2 Preliminary Plans and Environmental Document(PES) 196 days? Tue 1/7/201 Tue 5/1W20• y
e 3 Kick-Off Meeting 1 day?; Tue 1/7/201 Tue 1/720
-s 4 Record Research and Utility Coordination 40 days: Wed 1/8/201 Tue 3/3/20 '
4 5 Survey i 10 days Wed 1/8/201 Tue 1/21/20 r
.. 8 Pavement Analysis � 10 days Wed 1/22/20 Tue 2/4/20
:� • 7 Preliminary Plans 10 days Wed 2/5/20; Tue 2/18/20
a i 6 City Review Preliminary Plans 10 dew. Wed 2/19/201 Tue 3/3/20
•• 9 Update Preiminary Plans I 5 days. Wed 3/4/201 Tue 3/10/20 .'
10 • •Preliminary Environmental Study(PES) I 88 days; Wed 2/19/201 Tue 6/19/20 es. .....
11 Preliminary Environmental Study(PES) I 15 days; Wed 2/19/201 Tue 3/1020 '
12 City Review/Conauernoe 10 days; Wed 3/11RO1 Tue 32420
A I —i-s. - _.Comment Resolution 1 5 days' Wed 3/25/201 Tue 3/3120
A...) 14 Caltrans Review l 10 days Wed 4/1/20 Tue 4/1420 V
/ 15 Comment Resolution I 5 days Wed 4/15/20 Tue 42120
4-* 18 CE Form(Caltrans) 20 days Wed 4/22/20 Tue 511920
(_ 17 PES complete 0 days:
Tue 5/19/20 Tue 5/1920' ♦ PES complete
18 Final Plans Specifications,and (PS&E)ti- - -_E) ; 80 days' Wed— 3/11/20 Tue 6130/20
Estimate30�. Wed 3/1120 Tue 4/21/20
(.4 19 90%PS&E I
t .1 20 Water Quality 10 days Wed 4/8/201 Tue 4/2120
--—--------------
21 i City Review 10 days' Wed 4/22/201 Tue 5/5/20
A 22 i Comment Resolution 5 days Wed 5/6/201 Tue 5/12/20
A 23 1 100%PS&E —. — 10 days' Wed 5/13/20! -Tue 526/20
24 City Review 10 days Wed 5/27/201 Tue 8/9/20
25 Comment Resolution 5 days Wed 6/10/20, Tue6/1620
' 26 Final PS&E 10 days Wed 6/17/201 Tue 6/30/20
27 PS&E Complete 0 days Tue 6/30/20 Tue 6/3020 • PS&E complete
1 28 -Permits 70 days; Wed 4/1/201 Tue 7/7/20 �" �
$ 29 Right of Wey Certification 45 days Wed 4/1/20 Tue 6/2/20
30 PS&E Certification/Request for Autorization 20 days; Wed 6/1020 Tue 7/720
$ 31 Construction Support , 90 days; Wed 8/19/20 Tue 12/22/20 '��'
`'
32 Bid Phase 30 days Wed 8/19/20, Tue 9/29/20 y
y
33 1 Construction Phase 60 days; Wed 9/30201 Tue 122220
I 34 Project Complete 0 days Tue 12/22/20 Tue 12/22/20 4f j
I
0
4
I
I
I
a
a
* Cathedral City I TRTS89022.19 20 Kimley>»Horn
EXHIBIT "B"
COMPENSATION
B-1
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Local Assistance Procedures Manual EXHBIT 10-H
Actual Cost-Plus-Fixed Fee or Lump Sum(Firm Fixed Price)contracts Cost Proposal
(Calculations for Anticipated Salary Increases)
Consultant Kimley-Horn and Associates,Inc. Contract No. Date
1.Calculate average hourly rate for 1st Period of the contract(Direct Labor Subtotal divided by total hours)
Direct Labor Total Hours Avg Hourly
Subtotal per per Cost Rate Contract Duration
Cost Proposal Proposal
$ 92,572.50 / 512 = $180.81 Period 1 Avg Hourly Rate
2.Calculate hourly rate for all periods(Increase the Average hourly rate for a period by proposed escalation%)
Avg Hourly Proposed
Rate Escalation
Period 1 $180.81 + 5% = $189.85 Period 2 Avg Hourly Rate
Period 2 $189.85 + 5% = $199.34 Period 3 Avg Hourly Rate
Period 3 $199.34 + 5% = $209.31 Period 4 Avg Hourly Rate
Period 4 $209.31 + 5% = $219.77 Period 5 Avg Hourly Rate
3.Calculate estimated hours per year(Multiply estimate%each period by total hours)
Estimated% Total Hours Total Hours
Completed Each per Cost per Period
Period Proposal
Period 1 91.00% * 512 = 465.92 Estimated Hours Period 1
Period 2 9.00% * 512 = 46.08 Estimated Hours Period 2
Period 3 0.00% * 512 = 0 Estimated Hours Period 3
Period 4 0.00% * 512 = 0 Estimated Hours Period 4
Period 5 0.00% * 512 = 0 Estimated Hours Period 5
Total 100% Total = 512
4.Calculate Total Costs including Escalation(multiply average hourly rate by the number of hours)
Avg Hourly Estimated
Rate Hours Cost
(calculated above) (calculated above) Per Period
Period 1 $180.81 * 465.92 = $84,240.98 Estimated Hours Period 1
Period 2 $189.85 * 46.08 = $8,748.10 Estimated Hours Period 2
Period 3 $199.34 * 0 = $0.00 Estimated Hours Period 3
Period 4 $209.31 * 0 = $0.00 Estimated Hours Period 4
Period 5 $219.77 * 0 = $0.00 Estimated Hours Period 5
Total Direct Labor Cost with Escalation = $92,989.08
Direct Labor Subtotal before escalation = $92,572.50
Estimated total of Direct Labor Salary Increase = $416.58 Transfer to Page 1
Period 1 =Contract inception through 6/30/20 Period 2=7/1/20 through 6/30/21 Period 3=7/1/21 through 6/30/22
Period 4=7/1/22 through 6/30/23 Period 5=7/1/23 through 6/30/24
Page 2
LPP 13-01 January 14,2015
I
Local Assistance Procedures Manual EXHBIT 10-H1
Exhibit 10-H1 Cost Proposal Cost Proposal
Actual Cost-Plus-Fixed Fee or Lump Sum(Firm Fixed Price)Contracts
(Design,Engineering and Environmental Studies)
Note:Mark-ups are Not Allowed
ElPrime Consultant ❑Subconsultant ❑2nd Tier Subconsultant
Consultant Kimley-Horn and Associates,Inc.
Project No. HISPL 5430(035) Contract No. Date
DIRECT LABOR
Classification/Title Name Hours Actual Hourly Rate Total
Principal In Charge Mike Sutton 1 $85.82 $ 85.82
Project Manager Frank Hoffmann 66 $77.90 $ 5,141.40
QC/QA Jean Fares 24 $87.98 $ 2,111.52
Sr.Professional III 0 $98.16 $ -
Sr.Professional II 16 $93.28 $ 1,492.48
Sr.Professional I 46 $79.82 $ 3,671.72
Professional III 0 $71.28 $ -
Professional II 0 $62.83 $ -
Professional I 61 $51.11 $ 3,117.71
Analyst II 248 $45.20 $ 11,209.60
Analyst I 24 $37.35 $ 896.40
Project Support 26 $33.73 $ 876.98
$0.00 $ -
LABOR COSTS
a)Subtotal Direct Labor Costs $ 28,603.63
b)Anticipated Salary Increases(see page 2 for calculation) $416.58
c)TOTAL DIRECT LABOR COSTS [(a)+(b)] $ 29,020.21
INDIRECT COSTS
d)Fringe Benefits (Rate: 40.71% ) e)Total Fringe Benefits[(c)x(d)] $ 11,814.13
f)FCCM (Rate: 0.69% ) g)Overhead[(c)x(f) $ 200.24
h)General and Administrative (Rate: 152.88% ) i)Gen&Admin[(c)x(h)] $ 44,366.09
j)TOTAL INDIRET COSTS[(e)+(g)+(i)] $ 56,380.46
FIXED FEE k)TOTAL FIXED FEE [(c)+(e)+(i)*fixed fee 10% ] $ 8,520.04
1)CONSULTANT'S OTHER DIRECT COSTS(ODC) -ITEMIZE(Add additional pages if necessary)
Description of Item Quantity Unit Unit Cost Total
Milage 500 miles $0.58 $ 290.00
Outside Printing-Bond Plots 200 each $2.30 $ 460.00
$0.00 $ -
$0.00 $ -
$0.00 $ -
1)TOTAL OTHER DIRECT COSTS $ 750.00
m)SUBCONSULTANTS' COSTS(Add additional pages if necessary)
Subconsultant 1: Aragon Geotechnical,Inc. $ 8,460.28
Subconsultant 2: Cabrinha,Hearn&Associates $ 23,830.62
Subconsultant 3: $
Subconsultant 4: $
(m)TOTAL SUBCONSULTANS'COSTS $ 32,290.90
(n)TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS[(I)+(m)] $ 33,040.90
TOTAL COST[(c)+(j)+(k)+(n)] $ 126,961.61
Page 3 of 3
January 2018
Local Assistance Procedures Manual Exhibit 10-01
Consultant Proposal DBE Commitment
EXHIBIT 10-01 CONSULTANT PROPOSAL DBE COMM1IITMEN!
1.Local Agency: City of Cathedral City 2.Contract DBE Goal: 17%
3.Project Description: Construct Centerline and Edge Rumble Strips, Install Flashing Stop Signs, Install Guardrail
4.Project Location: Date Palm btw 1-10 and Varner, Varner Road between Mountain View and Bob Hope
5.Consultant's Name: Kimley-Horn and Associates, Inc. 6.Prime Certified DBE:El
7. Description of Work,Service,or Materials 8.DBE %
Supplied Certification 9.DBE Contact Information 10.DBE
Number
Aragon Geotechnical, Inc.
Geotechnical Services 45365C. Fernando Aragon /951.776.0345 6%
Surveying/Right-of-Way 21761 Cabrinha, Hearn &Associates 19%
Camden Cabrinha/626.795.6926
Local Agency to Complete this Section
17.Local Agency Contract Number: 8751 11.TOTAL CLAIMED DBE PARTICIPATION 25%
18. Federal-Aid Project Number: HSIPL-5430(035)
19. Proposed Contract Execution Date: 01/08/2020
20.Consultant's Ranking after Evaluation: 1
IMPORTANT:Identify all DBE firms being claimed for credit,
Local Agency certifies that all r 1 certifications are valid and informaticn on regardless of tier.Written confirmation of each listed DBE is
this form is co plei- an. - required.
01/21/2020 /�(AN% n. 12/23/19
12.LPreparer's Signature 13.Date
Jo g A. Corella, P.E. (760)770-0327 Jean B. Fares 213-354-9402
14.Preparer's Name 15.Phone
Director of Engineering /Public Works Senior Vice President
16.Preparers Title
DISTRIBUTION: Original—Included with consultant's proposal to local agency.
ADA Notice: For individuals with sensory disabilities,this document is available in alternate formats. For information call(916)654-6410 or TDD(916)654-
3880 or write Records and Forms Management, 1120 N Street.NS-89.Sacramento.CA 95814.
LPP 18-01 Page I of 2
January 2019
Local Assistance Procedures Manual Exhibit 10-02
Consultant Contract DBE Commitment
EXHIBIT 10-02 CONSULTANT CONTRACT DBE COMMITMENT
1.Local Agency: City of Cathedral City 2.Contract DBE Goal: 17%
3.Project Description: Construction Centerline and Edge Rumble Strips, Install Flashing Stop Signs, Install Guardrail
4. Project Location: Date Palm btw 1-10 and Varner, Varner Road between Mountain View and Bob Hope
5.Consultant's Name: Kimley-Horn and Assoc., Inc. 6.Prime Certified DBE: ❑ 7.Total Contract Award Amount: $126,961.61
8.Total Dollar Amount for ALL Subconsultants: $32,290.90 9.Total Number of ALL Subconsultants: 2
10.Description of Work,Service,or Materials 11. DBE 13.DBE
Supplied Certification 12.DBE Contact Information Dollar
Number Amount
Geotechnical Services 45365 Aragon Geotechnical, Inc.
$8,460.28
45365 C. Fernando Aragon/951.776.0345
Survey/Right of Way 21761 Cabrinha, Hearn &Associates $23,830.62
Camden Cabrinha/626.795.6926
Local Agency to Complete this Section
$32,290.90
20.Local Agency Contract 8751
Niirnhor• 14.TOTAL CLAIMED DBE PARTICIPATION
21. Federal-Aid Project Number: HSIPL-5430(035)
22.Contract Execution 01/08/2020 25
flats
Local Agency certifies that all DBE certifications are valid and information on IMPORTANT: Identify all DBE firms being claimed for credit,
this form is co plete and accur. -. regardless of tier.Written confirmation of each listed DBE is
required.
gi ,l 01/21/2020 �_cinf � 12/30/19
23. g �cy Re - ative's Signature 24.Date 15.Rfeparer s Signature 16.Date
Joh . Corella, P.E. (760)770-0327 Jean B. Fares 213-354-9402
25. Local Agency Representative's Name 26.Phone 17.Preparer's Name 18.Phone
Director of Engineering /Public Works Sr. Vice President
27.Local Agency Representative's Title 19.Preparer's Title
DISTRIBUTION: 1.Original—Local Agency
2.Copy—Caltrans District Local Assistance Engineer(DLAE). Failure to submit to DLAE within 30 days of contract
execution may result in de-obligation of federal funds on contract. •
ADA Notice: For individuals with sensory disabilities,this document is available in alternate formats. For information call(916)654-6410 or TDD(916)654-
3880 or write Records and Forms Management,1120 N Street,MS-89,Sacramento,CA 95814.
Page 1 of 2
July 23,2015
EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and maintain
insurance, acceptable to the City, in full force and effect throughout the term of this
Agreement, against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the Services by Service Provider, its agents,
representatives or employees. Service Provider shall procure and maintain the following
scope and limits of insurance:
Only the following "marked" requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence basis
to protect Service Provider and City against liability or claims of liability which may arise
out of this Agreement in the amount of one million dollars ($1,000,000) per occurrence
and subject to an annual aggregate of two million dollars ($2,000,000). Coverage shall
be at least as broad as Insurance Services Office form Commercial General Liability
coverage (Occurrence Form CG 0001). There shall be no endorsement or modification
of the CGL limiting the scope of coverage for either insured vs. additional insured claims
or contractual liability. All defense costs shall be outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insurance in an amount not less
than $1,000,000 for injuries, including accidental death, to any one person, and subject
to the same minimum for each person, in an amount not less than one million dollars
($1,000,000) for each accident, and property damage insurance in an amount of not less
than one million dollars ($1,000,000). A combined single limit policy with aggregate limits
in an amount of not less than $2,000,000 shall be considered equivalent to the said
required minimum limits. Coverage shall be at least as broad as Insurance Services
Office form number CA 0001 covering Automobile Liability, including code 1 "any auto"
and endorsement CA 0025, or equivalent forms subject to the approval of the City.
X Workers' Compensation Insurance: Workers' Compensation insurance that
includes a minimum of one million dollars ($1,000,000) of employers' liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of
subrogation against the City and its respective elected officials, officers, employees,
agents and representatives. In the event a claim under the provisions of the California
Workers' Compensation Act is filed against City by a bona fide employee of Service
Provider participating under this Agreement, Service Provider is to defend and indemnify
the City from such claim.
X Professional Liability Insurance: Professional liability insurance appropriate to
the Service Provider's profession in an amount not less than one million dollars
$1,000,000 per occurrence. This coverage may be written on a "claims made" basis, and
must include coverage for contractual liability. The professional liability insurance
required by this Agreement must be endorsed to be applicable to claims based upon,
C-1
arising out of or related to Services performed under this Agreement. The insurance must
be maintained for at least three (3) consecutive years following the completion of Service
Provider's services or the termination of this Agreement. During this additional three (3)
year period, Service Provider shall annually and upon request of the City submit written
evidence of this continuous coverage.
B. Other Provisions. Insurance policies required by this Agreement shall
contain the following provisions:
1. All Coverages.
a. Each insurance policy required by this Agreement shall be
endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer
or either Party to this Agreement, reduced in coverage or in limits except after 30 days'
prior written notice by certified mail, return receipt requested, has been given to City.
b. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII.
2. Commercial General Liability and Automobile Liability Coverages.
a. City, and its respective elected and appointed officers,
officials, and employees and volunteers are to be covered as additional insureds as
respects: liability arising out of activities Service Provider performs; products and
completed operations of Service Provider; premises owned, occupied or used by Service
Provider; or automobiles owned, leased, hired or borrowed by Service Provider. The
coverage shall contain no special limitations on the scope of protection afforded to City,
and their respective elected and appointed officers, officials, or employees.
b. Service Provider's insurance coverage shall be primary
insurance with respect to City, and its respective elected and appointed, its officers,
officials, employees and volunteers. Any insurance or self-insurance maintained by City,
and its respective elected and appointed officers, officials, employees or volunteers, shall
apply in excess of, and not contribute with, Service Provider's insurance.
c. Service Provider's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
d. Any failure to comply with the reporting or other provisions of
the insurance policies, including breaches of warranties, shall not affect coverage
provided to City, and its respective elected and appointed officers, officials, employees or
volunteers.
C-2
e. The insurer waives all rights of subrogation against the City,
its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage. Unless the City Manager
otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation
against City, and its respective elected and appointed officers, officials, employees and
agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or
before the effective date of this Agreement, certificates of insurance necessary to satisfy
City that the insurance provisions of this contract have been complied with. The City may
require that Service Provider furnish City with copies of original endorsements effecting
coverage required by this Exhibit"C". The certificates and endorsements are to be signed
by a person authorized by that insurer to bind coverage on its behalf. City reserves the
right to inspect complete, certified copies of all required insurance policies, at any time.
1. Service Provider shall furnish certificates and endorsements from
each sub-contractor identical to those Service Provider provides.
2. Any deductibles or self-insured retentions must be declared to and
approved by City. At the option of City, either the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City or its respective elected or
appointed officers, officials, employees and volunteers, or the Service Provider shall
procure a bond guaranteeing payment of losses and related investigations, claim
administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall
not be construed to limit Service Provider's liability hereunder nor to fulfill the
indemnification provisions and requirements of this Agreement.
C-3