HomeMy WebLinkAboutItem No. 14 - Award a PSA for Upgrades to Various Signals at 224 Signalized Intersections
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Consent Calendar
City of San Bernardino
Request for Council Action
Date: March 18, 2020
To: Honorable Mayor and City Council Members
From: Teri Ledoux, City Manager
By:Kris Jensen, Director of Public Works
Subject: Adopt a Resolution to Award a PSA for Upgrades to Various
Signals at 224 Signalized Intersections
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino,
California adopt Resolution No. 2020-48:
1. Accepting Highway Safety Improvement Program (HSIP) Cycle 9 Grant in the
total award amount of $5,490,800; and
2. Approving the award of a Professional Service Agreement (“Agreement”) with
Kimley-Horn and Associates, Inc., of Riverside, California, in the amount of
$596,534.25 to perform design services for Upgrades to Various Signal
Hardware at 224 Signalized Intersections on Various Arterials (TC20 -007)
(“Project”); and
3. Authorizing the City Manager to execute the Agreement; and
4. Authorizing the Director of Finance to issue a Purch ase Order in support of the
Agreement.
Background
The Highway Safety Improvement Program (HSIP) is a core Federal -aid program
promoting the implementation of projects that focus on achieving a significant reduction
in traffic fatalities and serious injuries on all public roads, including non-State-owned
roads and roads on tribal land.
A Call for Projects for HSIP Cycle 9 funding was announced in May 2018. On July 18,
2018, the Mayor and City Council authorized the submission of an application through
the program to secure funding for the City’s Capital Improvement Plan (CIP) for TC20 -
007 - Upgrade Various Signal Hardware at 224 Signalized Intersections on Various
Arterials (“Project”). This upgrade will enhance safety at 224 signalized intersections by
upgrading the hardware and software at the traffic controllers to reduce delays in
circulation of traffic around the City.
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In December 2018, the City received a notification of award of HSIP Cycle 9 funding for
the project in a total amount of $5,490,800. Expenditure of award funding is authorized
incrementally through E-76 forms issued by Caltrans after receiving both State and
Federal approvals.
In May 2019, Caltrans issued a Form E-76 authorizing the City to proceed with
expenditures in the amount of $732,000 for the development of plans, specifications
and environmental (PS&E) documents for the Project. Expenditure budgets for PS&E
portion of the Project were previously established in the amount of $732,000 in Federal
Grant Program Fund No. 123 through the adoption of the Capital Improvement Plan
Fiscal Year 2019/20 document.
At this time, the bid process to secure a firm to perform design services for the Project
has been completed. Staff is now recommending that the Mayor and City Council
formally accept the award of the HSIP Cycle 9 Grant Funding in the amount of
$5,490,800 and award a Professional Services Agreement to Kimley-Horn and
Associates, Inc. of Riverside, California to perform design services related to the
Project.
Discussion
On July 18, 2019, a Request for Proposals (RFP) for design services was released to
consultant firms who had previously indicated an interest in receiving solicitations for
this type of work. The RFP was also made publicly available on the City’s “Request for
Bids” website. On August 22, 2019, the following four out of the six proposals received
were scheduled for an interview:
Firm Location
Kimley-Horn And Associates, Inc. Riverside
Albert Grover & Associates Fullerton
W.G. Zimmerman Engineering, Inc. Huntington Beach
TJKM Transportation Consultants Pleasanton
Each of the firms above were interviewed by staff and it was determined that the
proposal and presentation by Kimley-Horn and Associates, Inc. of Riverside, California
best meets the requirements of the RFP. After selecting Kimley-Horn and Associates,
Inc., a fee proposal was requested and negotiated for this federally funded project. The
final agreed upon fee for the proposed design service is $596,534.25. Kimley-Horn and
Associates, Inc. has extensive experience in traffic signal design services and has
completed many local projects in the San Bernardino area.
The project has incurred minor staff costs to date. Sufficient funds are currently
available in Federal Grant Fund No. 123-160-8700 to support the full cost of the
Agreement. If awarded by the Mayor and City Council, design work is anticipated to
begin in April 2020 and be completed by December 2020.
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2020-2025 Key Strategic Targets and Goals
This project is consistent with Key Target No 1d: Minimize risk and litigation exposure.
This project will contribute to enhanced motorist safety by improving traffic signal
functionality and reducing circulation delay in the Project area.
Fiscal Impact
No General Fund Impact. Funds for the project, in the amount of $596,534.25, are
available in Federal Grant Fund No. 123-160-8700-5504.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino,
California adopt Resolution No. 2020-48:
1. Accepting Highway Safety Improvement Program (HSIP) Cycle 9 Grant in the
total award amount of $5,490,800; and
2. Approving the award of a Professional Service Agreement (“Agreement”) with
Kimley-Horn and Associates, Inc., of Riverside, California, in the amount of
$596,534.25 to perform design services for Upgrades to Various Signal
Hardware at 224 Signalized Intersections on Various Arterials (TC20 -007)
(“Project”); and
3. Authorizing the City Manager to execute the Agreement; and
4. Authorizing the Director of Finance to issue a Purchase Order in support of the
Agreement.
Attachments
Attachment 1 Resolution 2020-48; Exhibit “A” - PSA for Kimley-Horn and
Associates
Attachment 2 Location Map
Attachment 3 Grant Award Letter
Attachment 4 Caltrans Authorization (E76)
Ward: All
Synopsis of Previous Council Actions:
July 18, 2018 Mayor and City Council approved Resolution 2018 -219 approving
submission of a HSIP Cycle 9 grant funding application.
June 14, 2019 Mayor and City Council adopted Resolution No. 2019-168
approving Capital Improvement Plan for FY 2019/2020.
Resolution No. 2020-48
RESOLUTION NO. 2020-48
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
ACCEPTING HIGHWAY SAFETY IMPROVEMENT
PROGRAM (HSIP) CYCLE 9 GRANT IN THE TOTAL
AWARD AMOUNT OF $5,490,800; APPROVING THE
AWARD OF A PROFESSIONAL SERVICES AGREEMENT
(“AGREEMENT”) WITH KIMLEY-HORN AND
ASSOCIATES, INC., OF RIVERSIDE, CALIFORNIA, IN
THE AMOUNT OF $596,534.25 TO PERFORM DESIGN
SERVICES FOR THE UPGRADES TO VARIOUS SIGNAL
HARDWARE AT 224 SIGNALIZED INTERSECTIONS ON
VARIOUS ARTERIALS (TC20-007) (“PROJECT”);
AUTHORIZING THE CITY MANAGER TO EXECUTE
THE AGREEMENT; AND AUTHORIZING THE
DIRECTOR OF FINANCE TO ISSUE A PURCHASE
ORDER IN SUPPORT OF THE AGREEMENT
WHEREAS, On May 16, 2018, Highway Safety Improvement Program (HSIP) Cycle 9
was commenced, upon the adoption of the program guidelines by the California Transportation
Commission (CTC). HSIP is funded from various federal and state funds appropriated in the
annual Budget Act. In California alone, the HSIP program has provided over $860 million
towards the construction of $1,030 million in local transportation safety projects in rural and
urban areas. And
WHEREAS, the City previously submitted a funding application through the HSIP
Cycle 9 program for CIP project TC20-007 – Upgrades to Various Signals at 224 Signalized
Intersections (“Project”) ; and
WHEREAS, the Project will upgrade the hardware and software at the traffic controllers
of 224 signalized intersections to improve circulation of traffic throughout the City; and
WHEREAS, the Mayor and City Council previously identified the Project in the City’s
Capital Improvement Plan; and
WHEREAS, Caltrans has issued a Form E76 authorizing the City to proceed to prepare
plans and specifications for the Project; and
WHEREAS, staff has administered a competitive process to secure contract proposals to
conduct project design services for the Project; and
WHEREAS, on August 22, 2019, the City received six proposals and after conducting a
thorough review of the proposals and firms, the City has determined Kimley-Horn and
Associates, Inc. of Riverside, California, to be the most qualified firm to perform design services
for the Project; and
Resolution No. 2020-48
WHEREAS, the City now wishes to enter into a Professional Services Agreement (PSA)
with Kimley-Horn and Associates, Inc. in an amount not exceed $596,534.25, attached hereto as
Exhibit A.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. The Mayor and the City Council accept the HSIP Cycle 9 grant award in
the amount of $5,490,800.
SECTION 3. The City Manager or her designee is hereby authorized and directed to
award a Professional Services Agreement to Kimley-Horn And Associates, Inc., of Riverside,
California, in the amount of $596,534.25, a copy of which is attached as Exhibit “A” and
incorporated herein.
SECTION 4. The Director of Finance is authorized and directed to issue a Purchase
Order in the amount of $596,534.25 to Kimley-Horn And Associates, Inc. for this work.
SECTION 5. The City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 6. Severability: If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 7. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested
by the City Clerk this ___ day of __________, 2020.
John Valdivia, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, Acting City Clerk
Resolution No. 2020-48
Approved as to form:
Sonia Carvalho, City Attorney
Resolution No. 2020-48
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, Acting City Clerk, hereby certify that the attached is a true
copy of Resolution No. 2020-___, adopted at a regular meeting held on the ___ day of _______
2020 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of
____________ 2020.
Genoveva Rocha, CMC, Acting City Clerk
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EXHIBIT “A”
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made and entered into as of March 18, 2020 by and between the City
of San Bernardino, a municipal corporation organized and operating under the laws of the State
of California with its principal place of business at Vanir Tower, 290 North D Street, San
Bernardino, CA 92401 (“City”), and Kimley-Horn and Associates, Inc., a North Carolina
Corporation with its principal place of business at 3880 Lemon Street, Suite 420, Riverside,
California 92501 (hereinafter referred to as “Consultant”). City and Consultant are hereinafter
sometimes referred to individually as “Party” and collectively as the “Parties.”
RECITALS
A. City is a public agency of the State of California and is in need of professional
services for the following project:
Upgrade Various Signal Hardware at 224 Signalized Intersections (TC20-007) Project
(hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such
services.
C. Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the City on the terms and conditions set forth in this
Agreement.
D. City desires to engage Consultant to render such services for the Project as set
forth in this Agreement
E. The Parties desire by this Agreement to establish the terms for City to retain
Consultant to provide the services described herein.
F. This Agreement is wholly or partially funded by federal funds administered by the
California Department of Transportation (“Caltrans”) on behalf of the Federal Highway
Administration (“FHWA”).
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Services and Additional Services
a. Consultant promises and agrees to furnish to City all labor, materials,
tools, equipment, services, and incidental and customary work necessary to fully and
adequately supply the professional services necessary for the full and adequate completion of
the Project consistent with the provisions of this Agreement (hereinaf ter referred to as
“Services”). The Services are more particularly described throughout this Agreement, including
Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject
to, and performed in accordance with, this Agreement, any exhibits attached hereto and
incorporated herein by reference, and all applicable local, state and federal laws, rules and
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regulations. All Services performed by Consultant shall be subject to the sole and discretionary
approval of the City, which approval shall not be unreasonably withheld.
b. At City’s request, Consultant may be asked to perform additional services
not otherwise included in this Agreement, not included within the scope of services listed in
Exhibit “A” attached hereto, and/or not customarily furnished in accordance with generally
accepted practices applicable to Consultant’s profession. If changes in the scope of services
seem merited by the City, it shall be processed in the following manner: (1) City shall
communicate the requested additional services to Consultant in writing; (2) If Consultant has the
capacity and ability to perform the additional services, Consultant shall prepare a letter outlining
the changes, which shall be forwarded to the City by Consultant with a statement of estimated
changes in fee or time schedule; (3) an amendment to this Agreement shall be prepared by the
City and executed by both Parties before performance of such additional services. Consultant
shall not perform any additional services prior to execution of a written amendment to this
Agreement memorializing the additional services. Once additional services are approved
pursuant to a written amendment executed by the Parties, such additional services shall be
deemed as being part of the Services and shall be subject to the same terms and conditions of
this Agreement as if the additional services had originally been included in the scope of services
listed in Exhibit “A”. Any written amendment adding additional services to the scope of services
listed in Exhibit “A” shall not render ineffective or invalidate unaffected portions of this
Agreement.
c. As used herein, “additional services” mean: (1) any services which are
determined by City to be necessary for the proper completion of the Project, but which the
Parties did not reasonably anticipate would be necessary for the Consultant to perform at the
execution of this Agreement; or (2) any work listed as additional services in Exhibit “A” attached
hereto. Consultant shall not perform, nor be compensated for, additional services without prior
written authorization from City and without an agreement between the City and Consultant as to
the compensation to be paid for such additional services. City shall pay Consultant for any
approved additional services, pursuant to the compensation provisions herein, so long as such
additional services are not made necessary through the acts or omissions of Consultant.
2. Allowable Costs and Payments
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 Services. No
additional compensation will be paid to Consultant, unless there is a change in the scope of the
Services or the scope of the Project. In the instance of a change in the scope of Services 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 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 set forth in Exhibit C, City shall have the right to
delay payment or terminate this Agreement in accordance with the provisions of Section 21
Termination.
c. Consultant shall not commence performance of Services until this
Agreement has been approved by City and notification to proceed has been issued by City’s
Contract Administrator. No payment will be made prior to approval of any Service, or for any
Service performed prior to approval of this Agreement.
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d. Consultant will be reimbursed within thirty (30) days upon receipt by City’s
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, attached hereto as
Exhibit “B” and incorporated herein by this reference, and shall reference this Agreement
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 28 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 City’s Contract
Administrator at the following address:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Contract Administrator
e. The total amount payable by City shall not exceed five hundred and
ninety six thousand, five hundred and thirty four dollars and twenty five cents ($596,534.25).
3. Funding Requirements
a. It is mutually understood between the Parties that this Agreement may
have been written before ascertaining the availability of funds or appropriation of funds, for the
mutual benefit of both Parties, in order to avoid program and fiscal delays that would occur if the
Agreement were executed after that determination was made.
b. This Agreement is valid and enforceable only, if sufficient funds are made
available to the City for the purpose of this Agreement. In addition, this Agreement is subject to
any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State
Legislature, or the City governing board that may affect the provisions, terms, or funding of this
Agreement in any manner.
c. It is mutually agreed that if sufficient funds are not appropriated, this
Agreement may be amended to reflect any reduction in funds.
d. The City has the option to void the Agreement under the 30-day
termination clause pursuant to Section 20, or by mutual agreement to amend the Agreement to
reflect any reduction of funds.
4. Retention of Funds
a. Any subcontract entered into as a result of this Agreement shall contain
all of the provisions of this Section.
b. No retainage will be withheld by the 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 sub-consultants to the penalties, sanctions, and other
remedies specified in Section 7108.5 of the California Business and Professions Code. This
requirement shall not be construed to limit or impair any contractual, administrative, or judicial
remedies, otherwise available to the Consultant or sub-consultant in the event of a dispute
involving late payment or nonpayment by the Consultant or deficient sub-consultant
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performance, or noncompliance by a sub-consultant. This provision applies to both DBE and
non-DBE Consultant and sub-consultants.
5. Retention of Records/Audit. For the purpose of determining compliance
with Gov. Code § 8546.7, the Consultant, sub-consultants, and City shall maintain all books,
documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate work-
papers, and other evidence pertaining to the performance of the Agreement including, but not
limited to, the costs of administering the Agreement. All parties, including the Consultant’s
Independent CPA, shall make such work-papers and materials available at their respective
offices at all reasonable times during the Agreement period and for three (3) years from the date
of final payment under the Agreement. City, Caltrans Auditor, 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, sub-consultants, and the Consultant’s Independent
CPA, that are pertinent to the Agreement for audits, examinations, work-paper review, excerpts,
and transactions, and copies thereof shall be furnished if requested without limitation.
6. 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 the City’s
Chief Financial Officer.
b. Not later than 30 days after issuance of the final audit report, Consultant
may request a review by the City’s Chief Financial Officer of unresolved audit issues. The
request for review shall be submitted in writing.
c. Neither the pendency of a dispute nor its consideration by the City will
excuse Consultant from full and timely performance, in accordance with the terms of this
Agreement.
d. Consultant and sub-consultant 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, an 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, City, or local government officials are allowed full 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 Contract Administrator 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, City or local governments have access to CPA work papers, will be
considered a breach of Agreement terms and cause for termination of the 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 the Independent Office of Audits and Investigations (IOAI). IOAI,
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 Contract
Administrator to conform to the Work Paper Review recommendations included in the
management letter or audit recommendations included in the audit report. Refusal by the
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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 and disallowance of
prior reimbursed costs.
1. During IOAI’s review of the ICR audit work papers created by
the Consultant’s independent CPA, IOAI 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 IOAI 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 IOAI. 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.
2. If IOAI is unable to issue a cognizant letter per subsection e.1
above, IOAI 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. IOAI will then
have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
3. If the Consultant fails to comply with the provisions of this
subsection e, or if IOAI 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 subsection
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.
4. Consultant may submit to City final invoice only when all of the
following items have occurred: (1) IOAI 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) IOAI 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 sub-consultant, with the same fiscal
period ICR.
7. Performance Period
a. This Agreement shall go into effect on March 18, 2020 contingent upon
approval by the City, and Consultant shall commence work after notification to proceed by the
City’s Contract Administrator (“Notice to Proceed”). This Agreement shall end upon completion
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of Services or December 31, 2020, whichever occurs first, unless extended by written
amendment.
b. Consultant is advised that any recommendation for Agreement award is
not binding on the City until this Agreement is fully executed and approved by the City.
c. The Notice to Proceed shall set forth the date of commencement of work.
Consultant shall not proceed with performance of any Services under this Agreement unless
and until the City provides the Notice to Proceed. Consultant shall meet any established
schedules and deadlines as specified in Exhibit “C” attached hereto and incorporated herein by
this reference. Consultant shall perform all Services hereunder as expeditiously as is consistent
with professional skill and care, as well as the orderly progress of the Project work so as not to
be the cause, in whole or in part, of delays in the completion of the Project or in the
achievement of any Project milestones, as provided herein. Specifically, Consultant shall
perform its Services so as to allow for the full and adequate completion of the Project within the
time required by the City and within any completion schedules adopted for the Project.
Consultant agrees to coordinate with City’s staff, contractors and consultants in the performance
of the Services, and shall be available to City’s staff, contractors and consultants at all
reasonable times.
d. Consultant shall only commence work covered by an amendment after
the amendment is executed and notification to proceed has been provided by the City’s
Contract Administrator.
e. Consultant shall submit progress reports at least once a month. The
report should be sufficiently detailed for the City’s Contract Administrator to determine, if
Consultant is performing to expectations, or is on schedule; to provide communication of interim
findings, and to sufficiently address any difficulties or special problems encountered, so
remedies can be developed. Consultant’s Project Manager shall meet with City’s Contract
Administrator, as needed, to discuss progress on the Agreement.
8. Delays in Performance
a. Neither City nor Consultant shall be considered in default of this
Agreement for delays in performance caused by circumstances beyond the reasonable control
of the non-performing Party. For purposes of this Agreement, such circumstances include but
are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots
and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances;
sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing Party shall, within
a reasonable time of being prevented from performing, give written notice to the other Party
describing the circumstances preventing continued performance and the efforts being made to
resume performance of this Agreement.
9. Compliance with Law
a. Consultant shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and
maintaining all permits required of Consultant by federal, state and local regulatory agencies.
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c. If applicable, Consultant is responsible for all costs of clean up and/ or
removal of hazardous and toxic substances spilled as a result of its Services or operations
performed under this Agreement.
10. Standard of Care. Consultant shall perform all Services under this Agreement in
a skillful and competent manner, consistent with the standards generally recognized as being
employed by professionals qualified to perform the Services in the same discipline in the State
of California, and shall be responsible to City for damages sustained by the City and delays to
the Project as specified in the indemnification provision of this Agreement. Without limiting the
foregoing, Consultant shall be fully responsible to the City for any increased costs incurred by
the City as a result of any such delays to the Project. Consultant represents and maintains that
it is skilled in the professional calling necessary to perform the Services. Consultant warrants
and represents that all of its employees, experts and sub-consultants shall have sufficient skill
and experience to perform the Services assigned to them. Finally, Consultant represents that it,
its employees, experts and sub-consultants have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Services assigned to or
rendered by them and that such licenses and approvals shall be maintained throughout the term
of this Agreement. As provided for in the indemnification provisions of this Agreement,
Consultant shall perform, at its own cost and expense and without reimbursement from the City,
any services necessary to correct errors or omissions which are caused by the Consultant’s
failure to comply with the standard of care provided for herein. Any employee or sub-consultant
who is determined by the City to be uncooperative, incompetent, a threat to the adequate or
timely completion of the Project, a threat to the safety of persons or property, or any employee
or sub-consultant who fails or refuses to perform the Services in a manner acceptable to the
City, shall be promptly removed from the Project by the Consultant and shall not be
re-employed to perform any of the Services or to work on the Project.
11. Key Personnel. Consultant has represented to the City that certain additional
key personnel and sub-consultants will perform the Services under this Agreement. Should one
or more of such personnel or sub-consultants become unavailable, Consultant may substitute
others of at least equal competence upon written approval of the City. In the event that City and
Consultant cannot agree as to the substitution of key personnel or sub-consultants, City shall be
entitled to terminate this Agreement for cause. As discussed below, any personnel or sub-
consultants who fail or refuse to perform the Services in a manner acceptable to the City, or
who are determined by the City to be uncooperative, incompetent, a threat to the adequate or
timely completion of the Project or a threat to the safety of persons or property, shall be
promptly removed from the Project by the Consultant at the request of the City. The key
personnel and sub-consultants for performance of this Agreement are as follows:
Jean Fares, P.E., Project Manager, Senior Vice President
12. Subcontracting
a. Nothing contained in this Agreement or otherwise, shall create any
contractual relation between the City and any sub-consultant(s), and no subcontract shall
relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as
fully responsible to the City for the acts and omissions of its sub-consultant(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 sub-consultant(s) is
an independent obligation from City’s obligation to make payments to the Consultant.
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b. Consultant shall perform the Services with resources available within its
own organization and no portion of the Services shall be subcontracted without written
authorization by the City’s Contract Administrator, except that, which is expressly identified in
the Consultant Cost Proposal attached hereto.
c. All subcontracts entered into as a result of this Agreement shall contain
all the provisions stipulated in this Agreement to be applicable to sub-consultants unless
otherwise noted.
d. Consultant shall pay its sub-consultants within fifteen (15) calendar days
from receipt of each payment made to Consultant by the City.
e. Any substitution of sub-consultant(s) must be approved in writing by the
City’s Contract Administrator in advance of assigning work to a substitute sub-consultant.
13. Independent Contractor. Consultant is retained as an independent contractor
and is not an employee of City. No employee or agent of Consultant shall become an employee
of City. The work to be performed shall be in accordance with the work described in this
Agreement, subject to such directions and amendments from City as herein provided. Any
personnel performing the work governed by this Contract on behalf of Contractor shall at all
times be under Consultant’s exclusive direction and control. Consultant shall pay all wages,
salaries, and other amounts due such personnel in connection with their performance under this
Contract and as required by law. Consultant shall be responsible for all reports and obligations
respecting such additional personnel, including, but not limited to: social security taxes, income
tax withholding, unemployment insurance, and workers’ compensation insurance.
14. Insurance. Consultant shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this Section. In
addition, Consultant shall not allow any sub-consultant to commence work on any subcontract
until it has secured all insurance required under this Section.
a. Commercial General Liability
(i) The Consultant shall take out and maintain, during the
performance of all work under this Agreement, in amounts not less than specified herein,
Commercial General Liability Insurance, in a form and with insurance companies acceptable to
the City.
(ii) Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
(1) Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent.
(iii) Commercial General Liability Insurance must include coverage
for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
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(6) Explosion, Collapse and Underground (UCX) exclusion
deleted
(7) Contractual Liability with respect to this Agreement
(8) Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one
insured against another; (3) products/completed operations liability; or (4) contain any other
exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials,
officers, employees, agents and City designated volunteers additional insured status using ISO
endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact
same coverage.
(vi) The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
provided that such deductibles shall not apply to the City as an additional insured.
b. Automobile Liability
(i) At all times during the performance of the work under this
Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non-owned and hired vehicles, in a form and
with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering automobile liability
(Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials,
officers, employees, agents and City designated volunteer’s additional insured status.
(iv) Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles shall not apply to the City as an
additional insured, but not a self-insured retention.
c. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be insured against
liability for workers’ compensation or to undertake self -insurance in accordance with the
provisions of that code, and he/she will comply with such provisions before commencing work
under this Agreement.
(ii) To the extent Consultant has employees at any time during the
term of this Agreement, at all times during the performance of the work under this Agreement,
the Consultant shall maintain full compensation insurance for all persons employed directly by
him/her to carry out the work contemplated under this Agreement, all in accordance with the
“Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of
California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts
indicated herein. Consultant shall require all sub-consultants to obtain and maintain, for the
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period required by this Agreement, workers’ compensation coverage of the same type and limits
as specified in this Section.
d. Professional Liability (Errors and Omissions). At all times during the
performance of the work under this Agreement the Consultant shall maintain professional
liability or Errors and Omissions insurance appropriate to its profession, in a form and with
insurance companies acceptable to the City and in an amount indicated herein. This insurance
shall be written on a policy form coverage specifically designed to protect against acts, errors or
omissions of the Consultant. “Covered Professional Services” as designated in the policy must
specifically include work performed under this Agreement. The policy must “pay on behalf of”
the insured and must include a provision establishing the insurer's duty to defend.
e. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $1,000,000 per occurrence/$2,000,000 aggregate
for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 combined single limit
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and
omissions)
(ii) Defense costs shall be payable in addition to the limits.
(iii) Requirements of specific coverage or limits contained in this
Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
f. Evidence Required. Prior to execution of the Agreement, the Consultant
shall file with the City evidence of insurance from an insurer or insurers certifying to the
coverage of all insurance required herein. Such evidence shall include original copies of the
ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of
Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence
of insurance shall be signed by a properly authorized officer, agent, or qualified representative
of the insurer and shall certify the names of the insured, any additional insureds, where
appropriate, the type and amount of the insurance, the location and operations to which the
insurance applies, and the expiration date of such insurance.
g. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this Agreement, except that the
Consultant shall provide at least ten (10) days prior written notice of cancellation of any such
policy due to non-payment of premium. If any of the required coverage is cancelled or expires
during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including
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the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to
the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Liability
Policy shall each contain a provision stating that Consultant’s policy is primary insurance and
that any insurance, self-insurance or other coverage maintained by the City or any named
insureds shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than
the effective date of this Agreement. Consultant shall maintain such coverage continuously for
a period of at least three years after the completion of the work under this Agreement.
Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is
advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed;
or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent
to the effective date of this Agreement.
(iv) All required insurance coverages, except for the professional
liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its
officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or
others providing insurance evidence in compliance with these specifications to waive their right
of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and
shall require similar written express waivers and insurance clauses from each of its
subconsultants.
(v) The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability in
excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the
City and shall not preclude the City from taking such other actions available to the City under
other provisions of the Agreement or law.
h. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies
with a current A.M. Best's rating of no less than A:VII and admitted to transact in the
business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance
Code or any federal law.
i. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Consultant, and any approval of said insurance by the City, is
not intended to and shall not in any manner limit or qualify the liabilities and obligations
otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to,
the provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, City has the right but not the duty to obtain the insurance it deems
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necessary and any premium paid by City will be promptly reimbursed by Consultant or City will
withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City
may cancel this Agreement.
(iii) The City may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(iv) Neither the City nor any of its officials, officers, employees, agents
or volunteers shall be personally responsible for any liability arising under or by virtue of this
Agreement.
j. Subconsultant Insurance Requirements. Consultant shall not allow any
subconsultants to commence work on any subcontract until they have provided evidence
satisfactory to the City that they have secured all insurance required under this Section.
Policies of commercial general liability insurance provided by such subconsultants shall be
endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an
endorsement providing the exact same coverage. If requested by Consultant, City may
approve in writing different scopes or minimum limits of insurance for particular subconsultants.
15. 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 the 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 Section 591 of the Vehicle Code,
the 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.
c. Any subcontract entered into as a result of this Agreement, shall contain
all of the provisions of this Section.
d. Consultant must have a Division of Occupational Safety and Health (CAL-
OSHA) permit(s), as outlined in California Labor Code Sections 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 feet or deeper.
16. Indemnification
a. For all matters not arising out of Consultant’s performance of “design
professional” services (as that term is defined under Civil Code section 2782.8) and to the fullest
extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify
and hold the City, its officials, officers, employees, volunteers, and agents free and harmless
from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or
injury of any kind, in law or equity, to property or persons, including wrongful death, in any
manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful
misconduct of Consultant, its officials, officers, employees, sub-consultants or agents in
connection with the performance of the Consultant’s Services, the Project or this Agreement,
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including without limitation the payment of all damages, expert witness fees and attorney’s fees
and other related costs and expenses. Consultant's obligation to indemnify shall not be
restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers,
employees, agents, or volunteers.
b. If Consultant’s obligation to defend, indemnify, and/or hold harmless
arises out of Consultant’s performance of “design professional” services (as that term is defined
under Civil Code section 2782.8), then, and only to the extent required by Civil Code section
2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be
limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of
competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not
exceed the Consultant’s proportionate percentage of fault.
17. California Labor Code Requirements
a. No Consultant or sub-consultant 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.gov/hq/construc/LaborCompliance/documents/District-
Region_Map_Construction_7-8-15.pdf). 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.gov.
d. Payroll Records.
1. Each Consultant and sub-consultant 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:
i. The information contained in the payroll record is true and
correct.
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ii. 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.
2. The payroll records enumerated under Section 17.d.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:
i. 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.
ii. A certified copy of all payroll records enumerated in
Section 17.d.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.
iii. 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.
3. Each Consultant shall submit a certified copy of the records
enumerated in Section 17.d.1 above, to the entity that requested the records within ten (10)
calendar days after receipt of a written request.
4. 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.
5. The Consultant shall inform City of the location of the records
enumerated under Section 17.d.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.
6. 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
Section 17.d.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 Contract Administrator.
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f. Penalty.
1. 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.
2. 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 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.
3. 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.
4. 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 Consultant of the
project is not liable for the penalties described above unless the 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:
i. 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.
ii. 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.
iii. 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.
iv. 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.
5. 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.
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6. 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 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
1. 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
1. Where either the prime Agreement or the sub-agreement exceeds
thirty thousand dollars ($30,000), the Consultant and any sub-consultants 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.
2. Consultant and sub-consultants 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 sub-
consultants 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 sub-consultants’ compliance with these requirements. Penalties are specified
in Labor Code §1777.7.
i. Consultant shall defend, indemnify and hold the City, its officials, officers,
employees and agents free and harmless from any claims, liabilities, costs, penalties or interest
arising out of any failure or alleged failure to comply of state prevailing wage law and this
Section 17.
18. Verification of Employment Eligibility. By executing this Agreement, Consultant
verifies that it fully complies with all requirements and restrictions of state and federal law
respecting the employment of undocumented aliens, including, but not limited to, the
Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall
require all sub-consultants and sub-sub-consultants to comply with the same.
19. Cost Principles 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.
17
b. 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 sub-consultant 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.
20. Laws and Venue. This Agreement shall be interpreted in accordance with the
laws of the State of California. If any action is brought to interpret or enforce any term of this
Agreement, the action shall be brought in a state or federal court situated in the County of San
Bernardino, State of California.
21. Termination
a. This Agreement may be terminated by City, provided that City gives not
less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt
requested) of intent to terminate. Upon termination, City shall be entitled to all work, including
but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings
and data estimates performed to that date, whether completed or not, and in accordance with
Section 22.
b. City may temporarily suspend this Agreement, at no additional cost to
City, provided that Consultant is given written notice (delivered by certified mail, return receipt
requested) 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.
c. 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.
d. In the event of termination, Consultant shall be compensated as provided
for in this Agreement, except as provided in this section. Upon termination, City shall be entitled
to all work, including but not limited to, reports, investigations, appraisals, inventories, studies,
analyses, drawings and data estimates performed to that date, whether completed or not, and in
accordance with Section 22.
22. Project Documents
a. All original field notes, written reports, drawings and specifications and
any other documents prepared pursuant to this Agreement, including, but not limited to, any
other works of authorship fixed in any tangible medium of expression such as writings, physical
drawings and data magnetically or otherwise recorded on computer diskettes (hereinafter
referred to as the “Project Documents”) shall be and remain the property of City. Although the
official copyright in all Project Documents shall remain with the Consultant or other applicable
18
subconsultants, the Project Documents shall be the property of City whether or not the work for
which they were made is executed or completed. Within thirty (30) calendar days following
completion of the Project, Consultant shall provide to City copies of all Project Documents
required by City. In addition, Consultant shall retain copies of all Project Documents on file for a
minimum of fifteen (15) years following completion of the Project, and shall make copies
available to City upon the payment of reasonable duplication costs. Before destroying the
Project Documents following this retention period, Consultant shall make a reasonable effort to
notify City and provide City with the opportunity to obtain the documents. This Agreement
creates a non-exclusive and perpetual license for City to copy, use, modify or reuse any and all
Project Documents and any intellectual property rights therein for any purpose related to the
Project. Consultant shall require any and all subconsultants to agree in writing that City is
granted a non-exclusive and perpetual license for the work of such subconsultants performed
pursuant to this Agreement. Consultant represents and warrants that Consultant has the legal
right to license any and all copyrights, designs and other intellectual property embodied in the
Project Documents that Consultant prepares or causes to be prepared pursuant to this
Agreement. Consultant shall indemnify and hold City harmless pursuant to the indemnification
provisions of this Agreement for any breach of this Section.
b. It is understood and agreed that all calculations, drawings and
specifications, whether in hard copy or machine-readable form, are intended for one-time use in
the construction of the project for which this Agreement has been entered into.
c. Consultant is not liable for claims, liabilities, or losses arising out of, or
connected with the modification, or misuse by the City of the machine-readable information and
data provided by Consultant under this Agreement; further, Consultant is not liable for claims,
liabilities, or losses arising out of, or connected with any use by the City of the Project
Documents on other projects for additions to this Project, or for the completion of this Project by
others, except only such use as many be authorized in writing by Consultant.
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. The 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.
23. Confidentiality
a. All Project Documents, either created by or provided to Consultant in connection
with the performance of this Agreement, shall be held confidential by Consultant to the extent
they are not subject to disclosure pursuant to the Public Records Act. All Project Documents
shall not, without the written consent of City, be used or reproduced by Consultant for any
purposes other than the performance of the Services. Consultant shall not disclose, cause or
facilitate the disclosure of the Project Documents to any person or entity not connected with the
performance of the Services or the Project. Nothing furnished to Consultant which is otherwise
known to Consultant or is generally known, or has become known, to the related industry shall
be deemed confidential. Consultant shall not use City’s name or insignia, photographs of the
Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper,
newspaper, television or radio production or other similar medium without the written consent of
City.
19
b. All financial, statistical, personal, technical, or other data and information relative
to the City’s operations, which are designated confidential by the City and made available to
Consultant in order to carry out this Agreement, shall be protected by Consultant from
unauthorized use and disclosure.
c. Permission to disclose information on one occasion, or public hearing held by the
City relating to the Agreement, shall not authorize Consultant to further disclose such
information, or disseminate the same on any other occasion.
d. Consultant shall not comment publicly to the press or any other media regarding
the Agreement or the City’s actions on the same, except to the 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.
e. 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 the City, and receipt of City’s written permission.
f. All information related to a construction estimate is confidential, and shall not be
disclosed by Consultant to any entity, other than City, Caltrans, and/or FHWA. All of the
materials prepared or assembled by Consultant pursuant to performance of this Agreement are
confidential and Consultant agrees that they shall not be made available to any individual or
organization without the prior written approval of City or except by court order. If Consultant or
any of its officers, employees, or subcontractors does voluntarily provide information in violation
of this Agreement, City has the right to reimbursement and indemnity from Consultant for any
damages caused by Consultant releasing the information, including, but not limited to, City’s
attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
24. 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 fact arising under
this Agreement that is not disposed of by agreement shall be decided by a committee consisting
of the City’s Contract Administrator and Alex Qishta, P.E., who may consider written or verbal
information submitted by Consultant.
b. Not later than 30 days after completion of all deliverables necessary to
complete the plans, specifications and estimate, Consultant may request review by the City
Deputy Director of Public Works / City Engineer 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.
25. Claims Filed by the City’s Construction Contractor
a. If claims are filed by the 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 the City’s construction
20
contract administration and legal staff and for testimony, if necessary, at depositions and at trial
or arbitration proceedings.
b. Consultant’s personnel that the City considers essential to assist in defending
against construction contractor claims will be made available on reasonable notice from the
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 the City’s construction
contractor claims will be performed pursuant to a written amendment, if necessary, extending
the termination date of this Agreement in order to resolve the construction claims.
26. The City’s Contract Administrator. The City hereby designates Teri Ledoux, City
Manager, or his or her designee, to act as its Contract Administrator for the performance of this
Agreement (“City’s Contract Administrator”). City’s Contract Administrator shall have the power
to act on behalf of the City for all purposes under this Agreement. The City’s Contract
Administrator hereby designates Alex Qishta, P.E., Deputy Director of Public Works/ City
Engineer or his or her designee, as the City’s contact for the implementation of the Services
hereunder. Consultant shall not accept direction or orders from any person other than the City’s
Contract Administrator or his or her designee.
27. Limitation of Agreement. This Agreement is limited to and includes only the work
included in the Project described above.
28. Equipment Purchase and Other Capital Expenditures
a. Prior authorization in writing, by the City’s Contract Administrator 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
Consultant’s Cost Proposal and exceeding $5,000, with prior authorization by the City’s
Contract Administrator, three competitive quotations must be submitted with the request for
such purchase, or the absence of bidding must be adequately justified.
c. Any equipment purchased with funds provide under the terms of this
Agreement is subject to the following:
1. Consultant shall maintain an inventory of all nonexpendable
property. Nonexpendable property is defined as having a useful life of at least two years and an
acquisition cost of 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, 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.
2. Regulation 2 CFR, Part 200 requires a credit to Federal funds
21
when participating equipment with a fair market value greater than $5,000 is credited to the
Project.
29. Non- Discrimination Clause 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 sub-
consultants 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 veteran status. Consultant and sub-consultants shall insure that the
evaluation and treatment of their employees and applicants for employment are free from such
discrimination and harassment.
c. Consultant and sub-consultants 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 sub-consultants 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
22
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.
30. Debarment and Suspension Certification
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:
1. Is not currently under suspension, debarment, voluntary exclusion,
or determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or
determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
4. 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.
31. Inspection of Work. Consultant and any sub-consultant shall permit the 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 performance period of
this Agreement including review and inspection on a daily basis.
32. 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 orde r of the
National Labor Relations Board.
33. Disadvantaged Business Enterprises (DBE) Participation. This Agreement is
subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in
Department of Transportation Financial Assistance Programs”. Consultants who obtain DBE
participation on this Agreement will assist Caltrans in meeting its federally mandated statewide
overall DBE goal. Consultant shall comply with the provisions included in Exhibit “D” attached
hereto and incorporated herein by this reference.
34. Notice. Any notice or instrument required to be given or delivered by this
Agreement may be given or delivered by depositing the same in any United States Post Office,
23
certified mail, return receipt requested, postage prepaid, addressed to the following addresses
and shall be effective upon receipt thereof:
CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Teri Ledoux – City Manager
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
Kimley-Horn & Associates Inc.
3880 Lemon Street, suite 420
Riverside, CA 92501
Attn: Jean Fares, P.E.
Project Manager, Senior Vice President
35. Third Party Rights. Nothing in this Agreement shall be construed to give any
rights or benefits to anyone other than the City and the Consultant.
36. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and that it shall not discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, sex, age or other
interests protected by the State or Federal Constitutions. Such non-discrimination shall include,
but not be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff or termination.
37. Labor Certification. By its signature hereunder, Consultant certifies that it is
aware of the provisions of Section 3700 of the California Labor Code which require every
employer to be insured against liability for Worker’s Compensation or to undertake self -
insurance in accordance with the provisions of that Code, and agrees to comply with such
provisions before commencing the performance of the Services.
38. Entire Agreement. This Agreement, with its exhibits, represents the entire
understanding of City and Consultant as to those matters contained herein, and supersedes and
cancels any prior or contemporaneous oral or written understanding, promises or
representations with respect to those matters covered hereunder. Each Party acknowledges
that no representations, inducements, promises or agreements have been made by any person
which are not incorporated herein, and that any other agreements shall be void. This Agreement
may not be modified or altered except in writing signed by both Parties hereto. This is an
integrated Agreement.
39. Severability. The unenforceability, invalidity or illegality of any provision(s) of this
Agreement shall not render the provisions unenforceable, invalid or illegal.
40. Successors and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the successors in interest, executors, administrators and assigns of each Party
to this Agreement. However, Consultant shall not assign or transfer by operation of law or
otherwise any or all of its rights, burdens, duties or obligations without the prior written consent
of City. Any attempted assignment without such consent shall be invalid and void.
24
41. Non-Waiver. None of the provisions of this Agreement shall be considered
waived by either Party, unless such waiver is specifically specified in writing.
42. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
43. City’s Right to Employ Other Consultants. City reserves its right to employ other
consultants in connection with this Project or other projects.
44. Prohibited Interests
a. 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, the 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 contract price or consideration, or otherwise
recover the full amount of such commission, percentage, brokerage, or contingent fee. For the
term of this Agreement, no director, official, officer or employee of City, during the term of his or
her service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
b. Conflict of Interest
1. 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.
2. 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 pro vided
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.
3. 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.
4. Consultant hereby certifies that the Consultant or sub-consultant
and any firm affiliated with the Consultant or sub-consultant 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.
5. Consultant shall not employ any current employee of City to
perform the work under this Agreement while this Agreement is in effect.
25
c. Rebates, Kickbacks or Other Unlawful Consideration.
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 the Agreement price; or otherwise recover the full amount of such rebate, kickback or other
unlawful consideration.
d. Prohibition of Expending City, State, or Federal Funds for Lobbying.
1. The Consultant certifies that to the best of his or her knowledge
and belief that:
A. No state, federal or local agency appropriated funds have
been paid, or will be paid by or on behalf of the Consultant to any person for influencing or
attempting to influence an officer or employee of any state or federal agency; a Member of the
State Legislature or United States Congress; an officer or employee of the Legislature or
Congress; or any employee of a Member of the Legislature or Congress, in connection with the
awarding or making of this Agreement, or with the extension, continuation, renewal,
amendment, or modification of this Agreement.
B. If any funds other than federal appropriated funds have
been paid, or will be paid to any person for influencing or attempting to influence an officer or
employee of any federal agency; a Member of Congress; an officer or employee of Congress, or
an employee of a Member of Congress; in connection with this federal contract, grant, loan, or
cooperative agreement; Consultant shall complete and submit Standard Form-LLL, “Disclosure
Form to Report Lobbying”, attached hereto as Exhibit “E” and incorporated herein by this
reference, in accordance with its instructions.
2. 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 impos ed 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 $10,000 and not more than $100,000 for each such failure.
3. Consultant also agrees by signing this document that he or she
shall require that the language of this certification be included in all lower-tier subcontracts,
which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
45. City Business Certificate. Consultant shall, prior to execution of this Agreement,
obtain and maintain during the term of this Agreement a valid business registration certificate
from the City pursuant to Title 5 of the City’s Municipal Code and any and all other licenses,
permits, qualifications, insurance, and approvals of whatever nature that are legally required of
Consultant to practice his/her profession, skill, or business.
46. Assignment. Consultant shall not assign, sublet, or transfer this Agreement or
any rights under or interest in this Agreement without the written consent of the City, which may
be withheld for any reason. Any attempt to so assign or so transfer without such consent shall
be void and without legal effect and shall constitute grounds for termination.
26
47. Evaluation of Consultant. Consultant’s performance will be evaluated by the
City. A copy of the evaluation will be sent to Consultant for comments. The evaluation together
with the comments shall be retained as part of the Agreement record.
48. Proposal Forms. The following forms provided as part of the Consultant’s
proposal are provided in Exhibit “E” and attached hereto and incorporated herein by this
reference:
Exhibit 10-Q Disclosure Of Lobbying Activities
Exhibit 10-O1 Consultant Proposal DBE Commitment
Exhibit 12-B Bidder’s List of Sub-contractors (DBE and NON-DBE)
49. Responsibility for Errors. Consultant shall be responsible for its work and results
under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation
as may be required by the City’s representative, regarding any Services rendered under this
Agreement at no additional cost to City. In the event that an error or omission attributable to
Consultant’s professional services occurs, Consultant shall, at no cost to City, provide all other
services necessary to rectify and correct the matter to the sole satisfaction of the City and to
participate in any meeting required with regard to the correction.
50. Attorneys’ Fees. In the event that litigation is brought by any Party in connection
with this Agreement, the prevailing Party shall be entitled to recover from the opposing Party all
costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing Party in the
exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
conditions, or provisions hereof. The costs, salary, and expenses of the City Attorney’s Office in
enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the
purposes of this Agreement.
51. Headings. Paragraphs and subparagraph headings contained in this Agreement
are included solely for convenience and are not intended to modify, explain, or to be a full or
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
52. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original. All counterparts shall be construed together and
shall constitute one single Agreement.
53. Authority. The persons executing this Agreement on behalf of the Parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said Parties and
that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
27
SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND KIMLEY-HORN AND ASSOCIATES, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF SAN BERNARDINO
Approved By:
Teri Ledoux
City Manager
Approved as to Form:
Sonia Carvalho
City Attorney
Attested By:
Genoveva Rocha, CMC, Acting City Clerk
CONSULTANT
Signature
Jean Fares, P.E.
Name
Project Manager, Senior Vice President
Title
“Provide a safe, sustainable, integrated and efficient transportation system
to enhance California’s economy and livability”
STATE OF CALIFORNIA------- CALIFORNIA STATE TRANSPORTATION AGENCY EDMUND G. BROWN Jr., Governor
DEPARTMENT OF TRANSPORTATION
DIVISION OF LOCAL ASSISTANCE
P.O. BOX 942874, MS-1
SACRAMENTO, CA 94274-0001
PHONE (916) 654-1776
FAX (916) 654-7181
TTY 711
www.dot.ca.gov
Serious drought.
Help save water!
December 27, 2018
Mr. Alex Qishta
Deputy Director of Public Works
City of San Bernardino
201 North E Street, Suite 200
San Bernardino, CA 92415
Dear Mr. Qishta:
Congratulations! The following projects you submitted for the Highway Safety Improvement
Program (HSIP) Cycle 9 funding have been selected for implementation:
Application
ID
Location Description of
Work
Project Cost Federal
Funds
08-San
Bernardino-1
Forty-nine (49) signalized
intersections along Mt. Vernon
Avenue from Highland Avenue to
Johnston Street, Baseline Street
from Del Rosa Avenue to
California Street, and Highland
Avenue from Medical Center
Drive to Victoria Avenue
Implement
advanced
dilemma zone
detection.
$ 4,341,400 $ 4,341,400
08-San
Bernardino-2
Two hundred twenty-four (224)
signalized intersections on various
arterials.
Upgrade various
signal hardware
components,
including traffic
signal heads,
push buttons, and
pedestrian signal
heads.
$ 5,490,800 $ 5,490,800
To view the complete statewide project listing, please visit the HSIP website at:
http://www.dot.ca.gov/hq/LocalPrograms/HSIP/prev_cycle_results.htm.
In HSIP Cycle 9, 221 projects were selected from a candidate pool of 351 applications. These
projects are selected for funding either based on the statewide Benefit Cost Ratio (BCR), or
under the various set-asides (i.e. set-asides for Guardrail Upgrade, Horizontal Curve Signing,
Pedestrian Crossing Enhancements, and Tribes). The selected HSIP projects, totaling $182
Mr. Qishta
December 27, 2018
Page 2
“Provide a safe, sustainable, integrated and efficient transportation system
to enhance California’s economy and livability”
million, will be programmed in the 2019 Federal Statewide Transportation Improvement Plan
(FSTIP).
So what is next?
1. Program new HSIP projects into the FSTIP:
The Metropolitan Planning Organizations (MPOs) will be informed of the projects being
approved for funding, and the MPOs will program these projects in their FSTIP. Please note
that it is your agency’s responsibility to check with your MPO to confirm when the Federal
Highway Administration (FHWA) has approved the programming of your projects. At that
time your agency may submit a request for authorization (RFA) to begin reimbursable work
on the project in accordance with federal-aid project implementation procedures.
While waiting for the projects to be programmed into the FSTIP, your agency is encouraged to
prepare documents required for your first Request for Authorization to Proceed (E-76) with
your first phase of work. For more details regarding project implementation, please review the
Local Assistance Procedures Manual (LAPM) at
http://www.dot.ca.gov/hq/LocalPrograms/lam/lapm.htm.
2. Deliver your HSIP projects and meet the delivery milestones per requirements:
For HSIP Cycle 9 projects, the following delivery milestones are required:
• The milestone of E-76 with Preliminary Engineering is met by September 30, 2019; and
• The milestone of E-76 with Construction is met by December 31, 2021.
Caltrans will track the delivery of these HSIP projects. For delivery reports, consequence
of not meeting the delivery requirements, exceptions, time extensions and other details,
please visit http://www.dot.ca.gov/hq/LocalPrograms/HSIP/delivery_status.htm.
Important: Use EPSP to deliver the projects
Key: Local agencies can and should use the Expedited Project Selection Procedures
(EPSP) to deliver their HSIP projects in advance of the FSTIP program year.
Given that a HSIP safety project is programmed in the FSTIP as lump-sum (i.e. not
programmed by phases), it is quite often that the actual year of one or more phases will
be different from the program year in the FSTIP. When this occurs, local agencies are
allowed and encouraged to request for E-76s in any year, using the Expedited Project
Selection Procedures (EPSP). The fact that a local HSIP project is not programmed in a
given year should NOT hinder the local agency from requesting for authorization in that
year, if the local agency is ready to start the work for a project phase. This understanding
is especially important in meeting the delivery requirements of the local HSIP projects.
For the specifics of using the EPSP, please visit
http://www.dot.ca.gov/hq/LocalPrograms/HSIP/delivery_status.htm.
Mr. Qishta
December 27, 2018
Page 3
“Provide a safe, sustainable, integrated and efficient transportation system
to enhance California’s economy and livability”
If you have questions, please feel free to contact Enrique Gonzalez at (909) 806-3960, or at
Enrique.M.Gonzalez@dot.ca.gov.
Sincerely,
David Lee
District Local Assistance Planner
AUTHORIZATION / AGREEMENT SUMMARY - (E-76)FEDERAL AID PROGRAMCALIFORNIA DEPARTMENT OF TRANSPORTATIONDLA LOCATOR:08-SBD-0-SBDPROJECT LOCATION:PREFIX:HSIPLTWO HUNDRED AND TWENTY-FOUR (224) SIGNALIZED INTERSECTIONS ON VARIOUS ARTERIALS WITHININ THE CITY OF SAN BERNARDINOPROJECT NO:5033(056)TYPE OF WORK:SEQ NO:1UPGRADE TRAFFIC SIGNAL HARDWAREPREV AUTH / AGREE DATES:STATE PROJ NO:0819000060L-NFED RR NO'S:PE:AGENCY:SAN BERNARDINOPUC CODES:R/W:ROUTE:PROJ OVERSIGHT:ASSUMED/LOCAL ADMINCON:DISASTER NO:ENV STATUS / DT:SPR:TIP DATARW STATUS / DT:MCS:MPO:SCAGINV RTE:OTH:FSTIP YR:18/19BEG MP:STIP REF:209-7000-1052END MP:FSTIP ID NO:SCAG015BRIDGE NO:PROG CODELINE NOIMPV TYPEFUNC SYSURBAN AREAURB/RURALDEMO IDZS301015FUNDING SUMMARYPHASEPROJECT COSTFEDERAL COSTAC COST PEPE PREV. OBLIGATION$0.00$0.00$0.00PE THIS REQUEST$732,000.00$732,000.00$0.00PE SUBTOTAL$732,000.00$732,000.00$0.00 R/WRW PREV. OBLIGATION$0.00$0.00$0.00RW THIS REQUEST$0.00$0.00$0.00RW SUBTOTAL$0.00$0.00$0.00 CONCON PREV. OBLIGATION$0.00$0.00$0.00CON THIS REQUEST$0.00$0.00$0.00CON SUBTOTAL$0.00$0.00$0.00 OTHOTH PREV. OBLIGATION$0.00$0.00$0.00OTH THIS REQUEST$0.00$0.00$0.00OTH SUBTOTAL$0.00$0.00$0.00TOTAL:$0.00$732,000.00$732,000.00STATE REMARKS03/13/2019SEQ 1. This request is for Preliminary Engineering funding to upgrade various signal hardware on 224 signalized intersections throughout the City of San Bernardino using Highway Safety Improvement Program(HSIP) Cycle 9 funding. Unique Project ID H9-08-021; Maximum Federal reimbursement ratio=100%05/07/2019This is a request for preliminary engineering funding to upgrade traffic signal hardware components (signal heads, pedestrian push buttons and signal heads, et al.) at 224 signalized intersections locatedthroughout the City of San Bernardino using Highway Safety and Improvement Program (HSIP) funds awarded on 12/12/18 as a HSIP Cycle 9 benefit cost project programmed for FY 21-22 in Amendment #5approved on 3/21/19 to SCAG's 2019 FTIP and EPSP'd to FY 18-19 on 4/24/19. Federal funding is currently limited to $1,372,700 for all phases of work with a maximum reimbursement ratio of 100% forcountermeasures. Reimburse with ZS30 HSIP funds at 100% on a pro rata reimbursement basis up to the federal amount shown for preliminary engineering. Cycle 9 Proj. #163, HSIP ID H9-08-021.05/14/2019STATE PROJECT NUMBER CHANGED FROM 0819000060L-1 TO 0819000060L-N.FEDERAL REMARKS
AUTHORIZATIONAUTHORIZATION TO PROCEED WITH REQUEST:PREPREPARED IN FADS BY:HAGOS, ESAYASON2019-04-26123-4567FOR:PRELIMINARY ENGR.REVIEWED IN FADS BY:LOUIE, PATRICKON2019-05-14653-7349DOCUMENT TYPE:AAGRSUBMITTED IN FADS BY:LOUIE, PATRICKON2019-05-14FOR CALTRANSPROCESSED IN FADS BY:SIGNATURE, NOT_REQUIREDON2019-05-14FOR FHWAE-76 AUTHORIZED DATE IN FMIS BY:JIYOUNG AHNON2019-05-22 11:55:28.0SIGNATURE HISTORY FOR PROJECT NUMBER 5033(056) AS OF 06/05/2019FHWA FMIS SIGNATURE HISTORYMOD #SIGNED BYSIGNED ON0JERILYNN FOGLE05/20/2019JERILYNN FOGLE05/20/2019JIYOUNG AHN05/22/2019FHWA FMIS 3.0 SIGNATURE HISTORYCALTRANS SIGNATURE HISTORYDOCUMENT TYPESIGNED BYSIGNED ONAUTH/AGREELOUIE, PATRICK05/14/2019