HomeMy WebLinkAboutPW Third Street Safety Improvements Project____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: April 18, 2022
Disposition: Resolutions 15056 X 15057 X 15058 and accepted report
Agenda Item No: 7.a
Meeting Date: April 18, 2022
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Public Works
Prepared by: Bill Guerin,
Director of Public Works
City Manager Approval: __________
TOPIC: THIRD STREET SAFETY IMPROVEMENTS PROJECT
SUBJECT: ADOPT RESOLUTIONS RELATED TO THE THIRD STREET SAFETY
IMPROVEMENTS PROJECT HSIPL 5043(043), CITY PROJECT NO. 11362
1.ADOPT A RESOLUTION AWARDING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE THE CONSTRUCTION AGREEMENT FOR THE THIRD STREET SAFETY
IMPROVEMENTS PROJECT, HSIPL 5043(043) TO GHILOTTI BROS., INC., IN THE
AMOUNT OF $2,236,926, AND AUTHORIZING CONTINGENCY FUNDS IN THE
AMOUNT OF $263,074, FOR A TOTAL APPROPRIATED AMOUNT OF $2,500,000.
2.ADOPT A RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH PARK
ENGINEERING, INC. FOR CONSTRUCTION MANAGEMENT, MATERIALS TESTING,
AND INSPECTION SERVICES ASSOCIATED WITH THE THIRD STREET SAFETY
IMPROVEMENTS PROJECT, HSIPL 5043(043), IN THE AMOUNT OF $258,499, IN A
FORM APPROVED BY THE CITY ATTORNEY.
3.ADOPT A RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT
WITH KIMLEY-HORN AND ASSOCIATES, INC. FOR CONSTRUCTION SUPPORT
SERVICES ASSOCIATED WITH THE THIRD STREET SAFETY IMPROVEMENTS
PROJECT, HSIPL 5043(043), IN THE AMOUNT OF $40,000 FOR A NEW TOTAL
PROFESSIONAL SERVICES AGREEMENT OF $320,000, IN A FORM APPROVED
BY THE CITY ATTORNEY.
RECOMMENDATION: Staff recommends that the City Council:
1.Adopt a resolution awarding and authorizing the City Manager to execute the
Construction Agreement for the Third Street Safety Improvements Project, HSIPL
5043(043) to Ghilotti Bros., Inc. in the Amount of $2,236,926 and authorizing
contingency funds in the amount of $263,074 for a total appropriated amount of
$2,500,000.
2.Adopt a resolution approving and authorizing the City Manager to execute a professional
services agreement with Park Engineering for construction management, materials
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
testing, and inspection services with the Third Street Safety Improvements Project,
HSIPL 5043(043), in the amount of $258,499.
3. Adopt a resolution approving and authorizing the City Manager to execute an
amendment to the professional services agreement with Kimley Horn for construction
support services associated with the Third Street Safety Improvements Project, HSIPL
5043(043), in the amount of $40,000 for a new total professional services agreement of
$320,000.
BACKGROUND:
In 2004, the Transportation Authority of Marin (TAM) established a Measure A Expenditure Plan
(Plan) for a voter-approved sales tax providing funds for major roadway projects in Marin
County. Plan projects were prioritized based on roadway condition, traffic volumes, transit
frequency, and existing bicycle and pedestrian access. In 2016, San Rafael received a
commitment from TAM for $11 million from Measure A and an additional $1.5 million from the
State Local Partnership Program for the purpose of making significant infrastructure
improvements along Third Street.
In 2018, the City applied for federal funding through the Highway Safety Improvement Program
(HSIP) administered by Caltrans. Upon favorable review, the City was awarded $1,575,000 in
funding for Third Street between Lindaro Street and Union Street. As project delivery utilizing
federal funds can be complex and impact timelines, staff subdivided the entire Third Street
corridor into the following two projects:
1. Third Street Rehabilitation Project – Miracle Mile to Lindaro Street; and
2. Third Street Safety Improvements Project – Lindaro Street to Union Street.
The City Council approved the design and environmental work for the Third Street Rehabilitation
Project at their November 18, 2019 meeting.
The Third Street Safety Improvements project consists of roadway and pedestrian
improvements, including but not limited to, street resurfacing, curb ramps, sidewalk, storm drain,
and traffic signal upgrades. Project intersections on Third Street include Lindaro Street, Lincoln
Avenue, Tamalpais Avenue, Irwin Street, and Grand Avenue. These intersections constitute one
of the most heavily congested areas in both San Rafael and Marin County. This is due in part to
their proximity to major traffic generators, such as the northbound and southbound on/off-ramps
for US 101, San Rafael Transit Center, SMART station, Caltrans Park-and-Ride lots, Downtown
San Rafael, Montecito Shopping Center, and San Rafael High School.
City staff developed conceptual design drawings for the proposed safety improvements and
subsequently, on May 24, 2019, issued a request for proposals (RFP). The conceptual design
provided a basic framework to potential consultants of the City’s objectives for this project, and
the plans were also utilized to solicit feedback from the City’s Bicycle and Pedestrian Advisory
Committee at their August 7, 2019 meeting. Staff intends to combine the HSIP Grant funding of
$1,575,000 with Traffic Mitigation and Gas Tax funding to construct the traffic safety
improvements and other roadway upgrades between Lindaro and Union Streets.
On March 2, 2020 the City Council Awarded a Professional Services Agreement to Kimley Horn
for the design and environmental clearance services associated with the Third Street Safety
Improvements project.
On February 7, 2022 the City council awarded the construction of the Third Street Rehabilitation
Project to Ghilotti Bros. The Third Street Rehabilitation Project is currently under construction
and overlaps the limits of the Third Street Safety Improvements Project. City staff intend to have
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 3
both projects work concurrently and coordination between the two projects will be needed to
provide the best finished product. On January 14, 2022 City solicited Construction Management,
Materials Testing, and Inspection Services.
On March 4, 2022 the project was advertised in accordance with San Rafael’s Municipal Code.
ANALYSIS: On March 30, 2022, the following bids were received and read aloud:
The construction bids have been reviewed by City staff. The low bid from CF Contracting, Inc.
has been found to be nonresponsive.
The second low bid from Ghilotti Bros., Inc. in the amount of $2,236,926 was found to be both
responsive and responsible. City staff recommends awarding the construction contract to
Ghilotti Bros., Inc. for the bid amount and recommends the City Council authorize a construction
contingency of approximately twelve percent in an amount of $263,074 for a total authorized
amount of $2,500,000.
Resolution (Agreement with Park Engineering for Construction Management, Materials Testing,
and Inspection Services)
To ensure the best finished product, this project will require full-time inspection. Public Works
proposes to retain a field inspector for this purpose. As such, Public Works solicited Statements
of Qualifications, including billing rate schedules. Four proposals were received on February 3,
2022. The Proposal was evaluated by City staff based on criteria specified in the Request for
Qualifications including, but not limited to, understanding of the work to be done, previous
experience with similar projects, qualified personnel, and familiarity with City standards. Staff
has reviewed the proposal and has found it to be complete and within industry standards.
The recommended Resolution authorizes the City Manager to execute a professional services
agreement with Park Engineering for the required construction management, materials testing,
and inspection services, in an amount not to exceed $258,499.
Resolution (Amendment to Agreement with Kimley-Horn and Associates, Inc. for Construction
Support Services)
To ensure the best finished product, this project will require construction support services by the
designer. Public Works proposes to retain Kimley-Horn and Associates, Inc. for this purpose. As
such, Public Works solicited a proposal for the necessary construction support services. The
Proposal was evaluated by City staff based on criteria specified in the Request for Qualifications
including, but not limited to, understanding of the work to be done, previous experience with
similar projects, qualified personnel, and familiarity with City standards. Staff has reviewed the
proposal and has found it to be complete and within industry standards.
The original contract with Kimley-Horn and Associates in the amount of $28,000 was for
environmental and design services. The recommended Resolution authorizes the City Manager
NAME OF BIDDER BASE BID Notes
CF Contracting, Inc. $2,079,538.00 Nonresponsive, Material Errors
in Proposal
Ghilotti Bros., Inc. $2,236,926.00
Ghilotti Construction Company, Inc. $2,674,650.90
St. Francis Electric, LLC. $2,687,000.00
Michael Paul Company, Inc. $3,010,778.00
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 4
to execute an amendment to the professional services agreement with Kimley-Horn and
Associates, Inc. for the required construction support services, in an amount $40,000 for a new
total professional services agreement of $320,000.
Table 1 summarizes the project construction expenses.
Table 1: Construction Expense Summary
Project Element Expense Amount
Construction contract w/
contingency $2,500,000
Construction Management &
Inspection $258,499
PSA Amendment $40,000
Total $2,798,499
PUBLIC OUTREACH: Public Works has engaged the community and key stakeholders over
the last four years to receive feedback as summarized below:
July 2017: Technical Working Group Meeting
October 2017: Community Working Group Meeting
November 2017: Community Meeting #1 - Feasibility Study
February 2018: Community and Technical Working Group Meeting
March 2018: Community Meeting #2 - Feasibility Study
June 3, 2019: Feasibility Study Report Presentation at City Council
July 15, 2020: Technical Working Group Meeting
August 5, 2020: City’s Bicycle and Pedestrian Advisory Committee (BPAC)
August 23, 2020: Community Working Group Meeting
September 23, 2020: Community Meeting #3
October 8, 2020: Economic Development Subcommittee Meeting
October 21, 2020: Association of Neighborhoods Meeting
November 2, 2020: City Council Informational Report
December 2, 2020: City’s Bicycle and Pedestrian Advisory Committee (BPAC)
February 3, 2021: City’s Bicycle and Pedestrian Advisory Committee (BPAC)
March 24, 2021: Community Meeting #4
May 3, 2021: City Council Presentation
May 10, 2021: Presentation to TAM Executive Committee
In addition to these meetings, Public Works has maintained an updated project website and met
with residents and business owners virtually and onsite to discuss key issues.
FISCAL IMPACT: Staff proposes to fund construction of this project utilizing $1,295,000 in
federal Highway Safety Improvement Program grant funds supplemented by $523,000 of Traffic
Mitigation Fund (No. 246) and $980,499 of Gas Tax Funds (No. 206). The proposed
Resolutions would appropriate $2,500,000 for construction/contingency and $258,499 for
inspection services and $40,000 for the amendment to Kimley-Horn and Associates, Inc.
professional services agreement for construction support services. Table 2 below summarizes
the project’s construction funding sources and staff recommended appropriations for this
project.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 5
Table 2: Construction Funding Summary
Project Element Expense Amount
Gas Tax Fund #206 $980,499
Traffic Mitigation Fund #246 $523,000
HSIP $1,295,000
Total $2,798,499
OPTIONS:
1. Adopt resolutions as presented.
2. Council may choose to authorize the construction contract and construct support
services, and instruct staff to perform the inspections, which may impact the delivery of
other City projects.
3. Council may reject all bids and direct staff to rebid both the inspection and construction
for this project. If this option is chosen, soliciting new proposals or rebidding the project
will delay construction and postpone the project until the spring of 2023 and inhibit the
Third Street Rehabilitation Project from finishing work including the repaving of Third
Street within the Third Street Safety Improvements Projects boundary.
4. The Council may reject all bids and direct staff to stop work on the project.
5. Do not adopt the resolutions and provide further direction to staff.
RECOMMENDED ACTION: Staff recommends that the City Council:
1. Adopt a resolution awarding and authorizing the City Manager to execute the
construction agreement for the Third Street Safety Improvements Project, HSIPL
5043(043) to Ghilotti Bros., Inc., in the amount of $2,236,926 and authorizing
contingency funds in the amount of $263,074 for a total appropriated amount of
$2,500,000.
2. Adopt a resolution approving and authorizing the City Manager to execute a professional
services agreement with Park Engineering for construction management, materials
testing, and inspection services associated with the Third Street Safety Improvements
Project, HSIPL 5043(043), in the amount of $258,499, in a form approved by the City
Attorney.
3. Adopt a resolution approving and authorizing the City Manager to execute an
amendment to the professional services agreement with Kimley-Horn and Associates,
Inc. for construction support services associated with the Third Street Safety
Improvements Project, HSIPL 5043(043), in the amount of $40,000 for a new total
professional services agreement of $320,000.
ATTACHMENT:
1. Resolution awarding the construction agreement Ghilotti Bros., Inc.
2. Resolution authorizing the City Manager to execute a professional services agreement
with Park Engineering, Inc. for construction management, materials testing, and
inspection services
3. Resolution authorizing the City Manager to execute an amendment to the professional
services agreement with Kimley-Horn and Associates, Inc. for construction support
services
4. Agreements
a) Park Engineering
b) Kimley-Horn and Associates, Inc.
1
RESOLUTION NO. 15056
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL AWARDING AND
AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONSTRUCTION
AGREEMENT FOR THE THIRD STREET SAFETY IMPROVEMENTS PROJECT,
HSIPL 5043(043) TO GHILOTTI BROS. INC., IN THE AMOUNT OF $2,236,926.00,
AND AUTHORIZING CONTINGENCY FUNDS IN THE AMOUNT OF $263,074.00 FOR
A TOTAL APPROPRIATED AMOUNT OF $2,500,000.
WHEREAS, the City desires to implement safety improvements along the Third
Street corridor from Lindaro Street to Grand Avenue; and
WHEREAS, on the 29th day of March 2022, pursuant to due and legal notice
published in the manner provided by law, inviting sealed bids or proposals for the work
hereinafter mentioned, as more fully appears from the Affidavit of Publication thereof on
file in the office of the City Clerk of the City of San Rafael, California, the City Clerk of
said City did publicly open, examine, and declare all sealed bids or proposals for doing
the following work in said City, to wit:
“Third Street Safety Improvements Project”
HSIPL 5043 (043) City Project No. 11362
in accordance with the plans and specifications therefore on file in the office of the
Department of Public Works; and
WHEREAS, the bid of $2,236,926.00 from Ghilotti Bros. Inc., at the unit prices
stated in its bid, was and is the lowest bid for said work and said bidder is the lowest
responsible bidder; and
WHEREAS, staff has recommended an additional 12% of the bid price for a
contingency in the amount of $263,074.00;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
RESOLVES as follows:
1. The plans and specifications for the “Third Street Safety Improvements
Project”, City Project No. 11362 on file in the Department of Public Works,
are hereby approved.
2. The bid of Ghilotti Bros., Inc. is hereby accepted at the unit prices stated in
its bid, and the contract for said work and improvements is hereby
awarded to Ghilotti Bros., Inc., at the stated unit prices.
2
3. The City Manager is authorized and directed to execute a contract with
Ghilotti Bros. Inc., for the bid amount, subject to final approval as to form
by the City Attorney, and to return the bidder’s bond upon the execution of
the contract.
4. Funds totaling $2,500,000.00, which includes the construction award
amount and contingency, will be appropriated for City Project No. 11362,
as follows: $1,295,000 in federal Highway Safety Improvement Program
grant funds supplemented by $523,000 of Traffic Mitigation Fund #246
and $582,000 of Gas Tax Funds (No. 206).
5. The Director of Public Works is hereby authorized to take any and all such
actions and make changes as may be necessary to accomplish the
purpose of this resolution.
I, Lindsay Lara, Clerk of the City of San Rafael, hereby certify that the foregoing
Resolution was duly and regularly introduced and adopted at a regular meeting of the
City Council of said City held on Monday, the 18th of April 2022 by the following vote, to
wit:
AYES: COUNCILMEMBERS: Bushey, Kertz, Llorens Gulati & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Hill
LINDSAY LARA, City Clerk
File No.: 18.01.87
RESOLUTION NO. 15057
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A
PROFESSIONAL SERVICES AGREEMENT WITH PARK ENGINEERING, INC. FOR
CONSTRUCTION MANAGEMENT, MATERIALS TESTING, AND INSPECTION
SERVICES ASSOCIATED WITH THE THIRD STREET SAFETY IMPROVEMENTS
PROJECT, HSIPL 5043(043), IN THE AMOUNT OF $258,499.
WHEREAS, the City has advertised and received contractor bids for Third Street
Safety Improvements Project, HSIPL 5043(043), City Project 11362; and
WHEREAS, the City requires outside professional assistance to provide the
construction management, materials testing, and inspection services for the
aforementioned project; and
WHEREAS, staff received a proposal for the required construction inspection
services dated February 3, 2022 from Park Engineering, Inc.; and
WHEREAS, staff has reviewed the proposal and found it to be complete and
within industry standards; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
RESOLVES as follows:
1. The Council hereby approves and authorizes the City Manager to execute a
Professional Services Agreement with Park Engineering, Inc., as set forth in
the accompanying staff report, for construction management, materials
testing, and inspection services for the Third Street Safety Improvements
Project, HSIPL 5043(043), in the amount of $258,499, in the form included
with the staff report supporting this resolution, subject to final approval as to
form by the City Attorney
2. Funds totaling $258,499 shall be appropriated from the Gas Tax Fund (#206)
to the Third Street Safety Improvements Project, HSIPL 5043(043) (Project
No. 11362) to accommodate this amendment to the agreement.
3. The Director of Public Works is hereby authorized to take any and all such
actions and make changes as may be necessary to accomplish the purpose
of this resolution.
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the
foregoing Resolution was duly and regularly introduced and adopted at a regular
meeting of the City Council of said City on Monday, the 18th day of April 2022, by the
following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Kertz, Llorens Gulati & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Hill
LINDSAY LARA, City Clerk
File No.: 18.01.87
RESOLUTION NO. 15058
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST
AMENDMENT TO THE AGREEMENT WITH KIMLEY-HORN AND ASSOCIATES,
INC. FOR ADDITIONAL CONSTRUCTION SUPPORT SERVICES, IN AN
ADDITIONAL CONTRACT AMOUNT NOT TO EXCEED $40,000
WHEREAS, pursuant to City Council Resolution No. 14767, the City of San
Rafael and Kimley Horn entered into a Professional Services Agreement dated March 3,
2020 for engineering design and environmental clearance services associated with the
Third Street Safety Improvements Project, HSIPL 5043 (043) in the amount not to
exceed $280,000 (the “Agreement”); and
WHEREAS, the City requires additional construction support services from
Kimley-Horn and Associates, Inc. to cover the engineering and design construction
support needed during the construction phase of the project; and
WHEREAS, staff received a proposal from Kimley-Horn and Associates, Inc. for
the additional required services in a total amount not to exceed $40,000; and
WHEREAS, staff has reviewed their proposal and found it to be complete and
within industry standards; and
WHEREAS, $40,000 will be appropriated from the Gas Tax Fund (#206);
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
RESOLVES as follows:
1. The Council hereby approves and authorizes the City Manager to execute a First
Amendment to the Professional Services Agreement with Kimley-Horn and
Associates, Inc. for additional construction support services in connection with
the associated with the Third Street Safety Improvements Project, HSIPL 5043
(043) in the amount of $40,000 and a revised total contract value not to exceed
$320,000, in the form included with the staff report supporting this resolution,
subject to final approval as to form by the City Attorney.
2. The Director of Public Works is hereby authorized to take any and all such
actions and make changes as may be necessary to accomplish the purpose of
this resolution.
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting
of the Council of said City on Monday, the 18th day of April 2022 by the following vote, to
wit:
AYES: COUNCILMEMBERS: Bushey, Kertz, Llorens Gulati & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Hill
LINDSAY LARA, City Clerk
Page 1 of 22
AGREEMENT FOR PROFESSIONAL SERVICES WITH PARK ENGINEERING, INC.
FOR CONSTRUCTION MANAGEMEN & MATERIAL TESTING SERVICES
FOR THE THIRD STREET SAFETY IMPROVEMENTS PROJECT
ARTICLE I INTRODUCTION
A. This AGREEMENT is entered into as of the _______ day of ___________, 2022 by and between the
following named, hereinafter referred to as CONSULTANT, and the following named, hereinafter
referred to as LOCAL AGENCY:
The name of the “CONSULTANT” is as follows: Park Engineering, Inc., incorporated in or
authorized to do business in the State of California.
The Project Manager for the “CONSULTANT” will be Steve Patterson
The name of the “LOCAL AGENCY” is as follows: City of San Rafael
The Contract Administrator for LOCAL AGENCY will be Bill Guerin, Public Works Director
B. The work to be performed under this AGREEMENT is described in Article III Statement of Work and
the approved CONSULTANT’s Cost Proposal (“Cost Proposal”) dated March 7, 2022. The approved
CONSULTANT’s Cost Proposal is included in Exhibit A and incorporated by reference. If there is
any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall
take precedence.
C. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold
harmless LOCAL AGENCY, its officers, agents, and employees and volunteers from and against any
and all claims, damages, demands, liability, costs, losses and expenses, including without limitation,
court costs and reasonable attorney’s and expert witness fees, arising out of any failure to comply
with applicable law, any injury to or death of any person(s), damage to property, loss of use of
property, economic loss or otherwise arising out of the performance of the work described herein, to
the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or
willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT,
except CONSULTANT will not reimburse LOCAL AGENCY for any such loss or damage which was
caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court
of competent jurisdiction. The provisions of this section shall survive termination or suspension of this
AGREEMENT.
D. CONSULTANT in the performance of this AGREEMENT shall act in an independent capacity. It is
understood and agreed that CONSULTANT (including CONSULTANT’S employees) is an
independent contractor and that no relationship of employer-employee exists between the Parties
hereto. CONSULTANT’S assigned personnel shall not be entitled to any benefits payable to
employees of LOCAL AGENCY.
E. LOCAL AGENCY is not required to make deductions or withholdings from the compensation payable
to CONSULTANT under the provisions of the AGREEMENT and is not required to issue W-2 Forms
for income and employment tax purposes for any of CONSULTANT’s assigned personnel.
CONSULTANT in the performance of its obligation hereunder, is only subject to the control of
direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be
accomplished,
F. Any third-party person(s) employed by CONSULTANT shall be entirely and exclusively under the
direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds
LOCAL AGENCY harmless from any and all claims that may be made against LOCAL AGENCY
based upon any contention by any third party that an employer-employee relationship exists by
reason of this AGREEMENT.
Page 2 of 22
G. Except as expressly authorized herein, CONSULTANT’s obligations under this AGREEMENT are not
assignable or transferable, and CONSULTANT shall not subcontract any work, without the prior
written approval of the LOCAL AGENCY. However, claims for money due or which become due to
CONSULTANT from LOCAL AGENCY under this AGREEMENT may be assigned to a financial
institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer
whether voluntary or involuntary shall be furnished promptly to the LOCAL AGENCY.
H. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and
omissions of its contractors and subcontractors or subconsultants, and of persons either directly or
indirectly employed by them, in the same manner as persons directly employed by CONSULTANT.
I. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and
signed by the parties authorized to bind the parties; and no oral understanding or agreement not
incorporated herein, shall be binding on any of the parties hereto.
J. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of
CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless
otherwise expressly so provided.
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently
detailed for the LOCAL AGENCY’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.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator, as
needed, to discuss progress on the AGREEMENT.
ARTICLE III STATEMENT OF WORK
The CONSULTANT shall perform the services specified in the Scope of Work, dated March 7, 2022,
attached hereto as Exhibit A and incorporated herein by reference. If there is any conflict between
the terms of the Cost Proposal, included in Exhibit A, and the terms of this AGREEMENT, the terms
of this AGREEMENT shall take precedence.
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on the date first hereinabove written, contingent upon approval
by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by
LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end upon completion of the
work to the satisfaction of the LOCAL AGENCY’S Contract Administrator.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on
LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in the
CONSULTANT’s approved Cost Proposal. The specified hourly rates shall include direct salary
costs, employee benefits, prevailing wages, employer payments, overhead, and fee. These rates
are not adjustable for the performance period set forth in this AGREEMENT. CONSULTANT will
Page 3 of 22
be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of
itemized invoices in duplicate.
B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary
costs that are in the approved Cost Proposal and identified in the approved Cost Proposal.
C. Reserved.
D. Reserved.
E. Reserved.
F. Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in
the approved Cost Proposal. CONSULTANT will be responsible for transportation and subsistence
costs in excess of State rates.
G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall
obtain prior written approval in the form of an AGREEMENT amendment for a revised milestone
cost estimate from the Contract Administrator before exceeding such estimate.
H. Progress payments will be made monthly in arrears based on services provided and actual costs
incurred.
I. CONSULTANT shall not commence performance of work or services until this AGREEMENT has
been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL
AGENCY’S Contract Administrator. No payment will be made prior to approval or for any work
performed prior to approval of this AGREEMENT.
J. Reserved.
K. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’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 and shall reference this AGREEMENT
number and project title. Credits due LOCAL AGENCY that include any equipment purchased
under the provisions of Article XI Equipment Purchase, must be reimbursed by CONSULTANT
prior to the expiration or termination of this AGREEMENT. Invoices shall be mailed to LOCAL
AGENCY’s Contract Administrator at the following address:
City of San Rafael Department of Public Works
Bill Guerin
111 Morphew Street
San Rafael, CA 94901
L. Reserved.
M. The total amount payable by LOCAL AGENCY shall not exceed the amount agreed to in this
AGREEMENT, unless authorized by amendment.
N. Reserved.
Page 4 of 22
O. Reserved.
P. The total amount payable by LOCAL AGENCY for all work resulting from this AGREEMENT shall
not exceed $ 258,498.65. It is understood and agreed that there is no guarantee, either expressed
or implied that this dollar amount will be authorized under this AGREEMENT.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives
not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt
requested) of intent to terminate. Upon termination, LOCAL AGENCY 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 Article XXVI, Ownership of Data.
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL
AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return
receipt requested) of temporary suspension. If LOCAL AGENCY 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 LOCAL AGENCY for damages sustained by LOCAL AGENCY by virtue of any breach of this
AGREEMENT by CONSULTANT, and LOCAL AGENCY may withhold any payments due to
CONSULTANT until such time as the exact amount of damages, if any, due LOCAL AGENCY from
CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this
AGREEMENT, except as provided in Article XI, section C. Upon termination, LOCAL AGENCY 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 Article XXVI, Ownership of Data.
ARTICLE VII 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 items of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR Part
200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal
Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by
subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200, are subject to
repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher
Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORDS/AUDIT
For the purpose of determining compliance with Gov. Code §8546.7, the CONSULTANT,
Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records,
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Independent CPA Audited Indirect Cost Rate workpapers, 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 workpapers
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. LOCAL AGENCY,
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, Subconsultants, and the
CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations,
workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without
limitation.
ARTICLE IX 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 LOCAL AGENCY’S Finance Director.
B. Not later than thirty (30) days after issuance of the final audit report, CONSULTANT may request a
review by LOCAL AGENCY’S Finance Director of unresolved audit issues. The request for review
will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse
CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates
(ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, 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,
LOCAL AGENCY, 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 LOCAL AGENCY 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 LOCAL
AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review
recommendations, or to ensure that the federal, LOCAL AGENCY 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 Caltrans Audits and Investigation (A&I). Caltrans A&I, at its sole discretion, may review and/or
audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the
CONSULTANT and approved by the LOCAL AGENCY 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 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 Caltrans A&I’s review of the ICR audit work papers created by the CONSULTANT’s
independent CPA, Caltrans A&I will work with the CPA and/or CONSULTANT toward a resolution
of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit
disputes in a timely manner. If Caltrans A&I identifies significant issues during the review and is
unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT
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at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part
31; GAAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if
applicable; in accordance with procedures and guidelines of the American Association of State
Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures
and guidelines}is received and approved by A&I.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate
reimbursed will be ninety percent (90%) of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent
(200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be
seventy-five percent (75%) of the proposed rate.
2. If Caltrans A&I is unable to issue a cognizant letter per paragraph E.1. above, Caltrans A&I may
require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within
three (3) months of the effective date of the management letter. Caltrans A&I will then have up to
six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if Caltrans A&I is
still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is
submitted, overhead cost reimbursement will be limited to the accepted ICR that was established
upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In
this event, this accepted ICR will become the actual and final ICR for reimbursement purposes
under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items
have occurred: (1) Caltrans A&I accepts or adjusts the original or revised independent CPA
audited ICR; (2) all work under this AGREEMENT has been completed to the satisfaction of
LOCAL AGENCY; and, (3) Caltrans A&I has issued its final ICR review letter. The CONSULTANT
MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY 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 LOCAL AGENCY and the CONSULTANT, either as a
prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between
LOCAL AGENCY and any Subconsultants, and no sub-agreement shall relieve the CONSULTANT
of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible
to LOCAL AGENCY for the acts and omissions of its Subconsultants 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 the CONSULTANT. The CONSULTANT’s obligation to pay its Subconsultants is an independent
obligation from LOCAL AGENCY’S obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own
organization and no portion of the work shall be subcontracted without written authorization by the
LOCAL AGENCY Contract Administrator, except that which is expressly identified in the
CONSULTANT’s approved Cost Proposal.
C. Any sub-agreement entered into as a result of this AGREEMENT, shall contain all the provisions
stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
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D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each
payment made to the CONSULTANT by the LOCAL AGENCY.
E. Any substitution of Subconsultants must be approved in writing by LOCAL AGENCY Contract
Administrator in advance of assigning work to a substitute Subconsultant.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES
A. Prior authorization in writing, by LOCAL AGENCY’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 approved Cost
Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s
Contract Administrator, three competitive quotations must be submitted with the request, or the
absence of bidding must be adequately justified.
C. Any equipment purchased as a result of this contract 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, LOCAL AGENCY 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 LOCAL AGENCY 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
LOCAL AGENCY procedures; and credit LOCAL AGENCY 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 LOCAL AGENCY and
CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale
must be approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR Part 200 requires a credit to Federal funds when participating equipment with
a fair market value greater than five thousand dollars ($5,000) is credited to the project.
ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work
elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code
§1725.5. Registration with DIR must be maintained throughout the entire term of this AGREEMENT,
including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code
requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations
applicable to work under this AGREEMENT are available and on file with the Department of
Transportation's Regional/District Labor Compliance Officer
(http://www.dot.ca.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 LOCAL AGENCY construction sites, at LOCAL
AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its
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subcontractors solely and specifically to serve LOCAL AGENCY 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 Subconsultant shall keep accurate certified payroll records and
supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000
showing the name, address, social security number, work classification, straight time and
overtime hours worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by the CONSULTANT or
Subconsultant in connection with the public work. Each payroll record shall contain or be verified
by a written declaration that it is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct.
b. 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 paragraph (1) above shall be certified as correct by the
CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall
be made available for inspection and copying by LOCAL AGENCY representatives 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:
a. 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.
b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made
available for inspection or furnished upon request to a representative of LOCAL AGENCY, the
Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the
Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division
of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered
or obliterated by the CONSULTANT.
c. 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 LOCAL
AGENCY 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 paragraph (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 LOCAL AGENCY 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 LOCAL AGENCY of the location of the records enumerated
under paragraph (1) above, including the street address, city and county, and shall, within five (5)
working days, provide a notice of a change of location and address.
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 paragraph (1) above.
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In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period,
he or she shall, as a penalty to LOCAL AGENCY, 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 LOCAL AGENCY 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
LOCAL AGENCY Contract Administrator.
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 LOCAL AGENCY 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 prime CONSULTANT of the project is not
liable for the penalties described above unless the prime CONSULTANT had knowledge of that
failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or
unless the prime CONSULTANT fails to comply with all of the following requirements:
a. 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.
b. 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.
c. 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.
d. 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
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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, LOCAL AGENCY 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.
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general
prevailing rate of per diem wages and if LOCAL AGENCY 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 LOCAL AGENCY.
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to
the LOCAL AGENCY, 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 subconsultants under him or her shall comply with all
applicable requirements of Labor Code §§1777.5, 1777.6 and 1777.7 in the employment of
apprentices.
2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements
regarding the employment of apprentices, including mandatory ratios of journey level to
apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are
advised to contact the DIR Division of Apprenticeship Standards website at
https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices
and for the specific journey-to- apprentice ratios for the AGREEMENT work. The CONSULTANT
is responsible for all subconsultants’ compliance with these requirements. Penalties are specified
in Labor Code §1777.7.
ARTICLE XIII CONFLICT OF INTEREST (Verbatim)
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or
other relationship with LOCAL AGENCY that may have an impact upon the outcome of this
AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT shall also
list current clients who may have a financial interest in the outcome of this AGREEMENT, or any
ensuing LOCAL AGENCY construction project, which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential
conflicts of interest that may exist relative to the services to be provided pursuant to this
AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or
potential conflicts of interest that may develop subsequent to the date of execution of this
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AGREEMENT. CONSULTANT further agrees to complete any statements of economic interest if
required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have nor shall it acquire any financial or
business interest that would conflict with the performance of services under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated
with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement
to provide construction inspection for any construction project resulting from this AGREEMENT, has
established necessary controls to ensure a conflict of interest does not exist. An affiliated firm is one,
which is subject to the control of the same persons, through joint ownership or otherwise.
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION
The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates,
kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee.
For breach or violation of this warranty, LOCAL AGENCY 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.
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR
LOBBYING
A. CONSULTANT certifies to the best of his or her knowledge and belief that:
1. No state, federal or local agency appropriated funds have been paid or will be paid, by or on
behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or
employee of any local, State, or Federal agency, a Member of the State Legislature or United
States Congress, an officer or employee of the Legislature or Congress, or any employee of a
Member of the Legislature or Congress in connection with the awarding or making of this
AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this
AGREEMENT.
2. If any funds other than Federal appropriated funds have been paid, or will be paid to any person
for influencing or attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by 31 U.S.C. §1352. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not
more than one hundred thousand dollars ($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the
language of this certification be included in all lower tier sub-agreements, which exceed one hundred
thousand dollars ($100,000) and that all such subrecipients shall certify and disclose accordingly.
Page 12 of 22
ARTICLE XVI NON-DISCRIMINATION 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 CONSULTANT has, unless exempt, complied
with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR §8103.
B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny
the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, genetic information, marital status,
sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran
status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or
applicant for employment because of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT
and subconsultants shall insure that the evaluation and treatment of their employees and applicants
for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and
Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR
§11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards
adopted by LOCAL AGENCY 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 LOCAL AGENCY 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 LOCAL AGENCY shall
require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultants shall give written notice of their obligations under this clause
to labor organizations with which they have a collective bargaining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all
subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in
accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides
that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in
which no person in the United States shall, on the basis of race, color, national origin, religion, sex,
age, disability, be excluded from participation in, denied the benefits of or subject to discrimination
under any program or activity by the recipients of federal assistance or their assignees and
successors in interest.
H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally-assisted
programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the
Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or
indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the
selection and retention of Subconsultants.
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ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. 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 LOCAL AGENCY. Exceptions will not
necessarily result in denial of recommendation for award but will be considered in determining
responsibility. Disclosures must indicate to whom 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.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION
A. This AGREEMENT is subject to 49 CFR Part 26 entitled “Participation by Disadvantaged Business
Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who
enter into a federally-funded agreement will assist the LOCAL AGENCY in a good faith effort to
achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 6.0%. Participation by DBE CONSULTANT
or subconsultants shall be in accordance with information contained in Exhibit 10-O1: Consultant
Proposal DBE Commitment , or in Exhibit 10-O2: Consultant Contract DBE Commitment attached
hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform,
CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if
the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to
meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the
AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it
took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and
appropriateness to the objective, could reasonably be expected to meet the DBE goal. If
CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information –
Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance
regarding evaluation of good faith efforts to meet the DBE goal.
D. DBEs and other small businesses, as defined in 49 CFR Part 26 are encouraged to participate in the
performance of AGREEMENTs financed in whole or in part with federal funds. The LOCAL AGENCY,
CONSULTANT or subconsultant shall not discriminate on the basis of race, color, national origin, or
sex in the performance of this contract. The CONSULTANT shall carry out applicable requirements
of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the
CONSULTANT to carry out these requirements is a material breach of this AGREEMENT, which may
result in the termination of this AGREEMENT or such other remedy as the LOCAL AGENCY deems
appropriate, which may include, but is not limited to:
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1. Withholding monthly progress payments;
2. Assessing sanctions;
3. Liquidated damages; and/or
4. Disqualifying the contractor from future bidding as non-responsible
E. A DBE firm may be terminated only with prior written approval from LOCAL AGENCY and only for
the reasons specified in 49 CFR §26.53(f). Prior to requesting LOCAL AGENCY consent for the
termination, CONSULTANT must meet the procedural requirements specified in 49 CFR §26.53(f). If
a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace
him/her with another DBE subconsultant, if the goal is not otherwise met.
F. Consultant shall not be entitled to any payment for such work or material unless it is performed or
supplied by the listed DBE or by other forces (including those of Consultant) pursuant to prior written
authorization of the LOCAL AGENCY’s Contract Administrator.
G. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a commercially
useful function (CUF) on the AGREEMENT. CUF must be evaluated on an agreement by agreement
basis. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of
the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing,
and supervising the work involved. To perform a CUF, the DBE must also be responsible, with
respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality
and quantity, ordering the material and installing (where applicable), and paying for the material itself.
To determine whether a DBE is performing a CUF, evaluate the amount of work subcontracted,
industry practices, whether the amount the firm is to be paid under the AGREEMENT is
commensurate with the work it is actually performing, and other relevant factors.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction,
AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE
participation. In determining whether a DBE is such an extra participant, examine similar
transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost
of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of
the AGREEMENT than would be expected on the basis of normal industry practice for the type of
work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts
entered into with certified DBEs. The records shall show the name and business address of each
DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The
records shall show the date of payment and the total dollar figure paid to all firms. DBE prime
CONSULTANT’s shall also show the date of work performed by their own forces along with the
corresponding dollar value of the work.
K. Upon completion of the AGREEMENT, a summary of these records shall be prepared and submitted
on the form entitled, Exhibit 17-F: Final Report-Utilization of Disadvantaged Business Enterprise
(DBE) First-Tier Subconsultants, certified correct by CONSULTANT or CONSULTANT’s authorized
representative and shall be furnished to the Contract Administrator with the final invoice. Failure to
provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%)
of the dollar value of the invoice being withheld from payment until the form is submitted. The amount
will be returned to CONSULTANT when a satisfactory “Final Report-Utilization of Disadvantaged
Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the Contract Administrator.
L. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant
shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a
certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in
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writing with the date of certification. Any changes should be reported to LOCAL AGENCY’s Contract
Administrator within thirty (30) calendar days.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this
section.
ARTICLE XIX INSURANCE
A. Scope of Coverage. During the term of this Agreement, CONSULTANT shall maintain, at no expense
to LOCAL AGENCY, the following insurance policies:
1. A commercial general liability insurance policy in the minimum amount of one million dollars
($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury,
personal injury, or property damage.
2. An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimum
amount of one million dollars ($1,000,000) dollars per occurrence.
3. If any licensed professional performs any of the services required to be performed under this
Agreement, a professional liability insurance policy in the minimum amount of one million dollars
($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising
out of the CONSULTANT 's performance of services under this Agreement. Where CONSULTANT
is a professional not required to have a professional license, LOCAL AGENCY reserves the right to
require CONSULTANT to provide professional liability insurance pursuant to this section.
4. If it employs any person, CONSULTANT shall maintain worker's compensation insurance, as
required by the State of California, with statutory limits, and employer’s liability insurance with
limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease.
CONSULTANT’s worker’s compensation insurance shall be specifically endorsed to waive any
right of subrogation against LOCAL AGENCY.
B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in
subparagraph A of this section above shall also meet the following requirements:
1. Except for professional liability insurance or worker’s compensation insurance, the insurance policies
shall be specifically endorsed to include the LOCAL AGENCY, its officers, agents, employees, and
volunteers, as additional insureds (for both ongoing and completed operations) under the policies.
2. The additional insured coverage under CONSULTANT’S insurance policies shall be “primary and
noncontributory” with respect to any insurance or coverage maintained by LOCAL AGENCY and
shall not call upon LOCAL AGENCY's insurance or self-insurance coverage for any contribution.
The “primary and noncontributory” coverage in CONSULTANT’S policies shall be at least as broad
as ISO form CG20 01 04 13.
3. Except for professional liability insurance or worker’s compensation insurance, the insurance policies
shall include, in their text or by endorsement, coverage for contractual liability and personal injury.
4. By execution of this Agreement, CONSULTANT hereby grants to LOCAL AGENCY a waiver of
any right to subrogation which any insurer of CONSULTANT may acquire against LOCAL
AGENCY by virtue of the payment of any loss under such insurance. CONSULTANT agrees to
obtain any endorsement that may be necessary to affect this waiver of subrogation, but this
provision applies regardless of whether or not LOCAL AGENCY has received a waiver of
subrogation endorsement from the insurer.
5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement,
said insurance coverage shall survive for a period of not less than five years.
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6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective
date of this Agreement.
7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and
umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to
contain a provision that such coverage shall also apply on a primary and noncontributory basis for
the benefit of LOCAL AGENCY (if agreed to in a written contract or agreement) before LOCAL
AGENCY’S own insurance or self-insurance shall be called upon to protect it as a named insured.
8. It shall be a requirement under this Agreement that any available insurance proceeds broader than
or in excess of the specified minimum insurance coverage requirements and/or limits shall be
available to LOCAL AGENCY or any other additional insured party. Furthermore, the requirements
for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or
(2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds
available to the named insured; whichever is greater. No representation is made that the minimum
Insurance requirements of this agreement are sufficient to cover the obligations of the
CONSULTANT under this agreement.
C. Deductibles and SIR’s. Any deductibles or self-insured retentions in CONSULTANT's insurance
policies must be declared to and approved by the PROJECT MANAGER and City Attorney and shall not
reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide
or be endorsed to provide that the SIR may be satisfied by either the named insured or LOCAL AGENCY
or other additional insured party. At LOCAL AGENCY's option, the deductibles or self-insured retentions
with respect to LOCAL AGENCY shall be reduced or eliminated to LOCAL AGENCY's satisfaction, or
CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claims
administration, attorney's fees and defense expenses.
D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER or LOCAL AGENCY’S
City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required
in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy
endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific
endorsements evidencing the other insurance requirements set forth in this Agreement. LOCAL
AGENCY reserves the right to obtain a full certified copy of any insurance policy and endorsements from
CONSULTANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later.
The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City
Attorney.
ARTICLE XX 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 LOCAL
AGENCY 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 LOCAL AGENCY 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. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination,
or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
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ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
B. CONSULTANT shall only commence work covered by an amendment after the amendment is
executed and notification to proceed has been provided by LOCAL AGENCY’s Contract
Administrator.
C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as
listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written
approval by LOCAL AGENCY’s Contract Administrator.
ARTICLE XXII 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, LOCAL AGENCY has
the right to annul this AGREEMENT without liability; pay only for the value of the work actually
performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise
recover the full amount of such commission, percentage, brokerage, or contingent fee.
ARTICLE XXIII 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 LOCAL AGENCY’s
Contract Administrator and other LOCAL AGENCY representatives who may consider written or
verbal information submitted by CONSULTANT.
B. Not later than thirty (30) days after completion of all work under the AGREEMENT, CONSULTANT
may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other
than audit. The request for review will be submitted in writing.
C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT
from full and timely performance in accordance with the terms of this AGREEMENT.
ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, 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.
ARTICLE XXV SAFETY
Page 18 of 22
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding
necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions
issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives.
CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the
construction project site.
B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY 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. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA) permit(s), as
outlined in California Labor Code §6500 and §6705, prior to the initiation of any practices, work,
method, operation, or process related to the construction or excavation of trenches which are five (5)
feet or deeper.
ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall
become the property of LOCAL AGENCY, and CONSULTANT shall have no property right therein
whatsoever. Immediately upon termination, LOCAL AGENCY shall be entitled to, and
CONSULTANT shall deliver to LOCAL AGENCY, reports, investigations, appraisals, inventories,
studies, analyses, drawings and data estimates performed to that date, whether completed or not,
and other such materials as may have been prepared or accumulated to date by CONSULTANT in
performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by
law, or CONSULTANT’s personnel information, along with all other property belonging exclusively
to LOCAL AGENCY which is in CONSULTANT’s possession. Publication of the information derived
from work performed or data obtained in connection with services rendered under this AGREEMENT
must be approved in writing by LOCAL AGENCY.
B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each
considers the products and results of the services to be rendered by CONSULTANT hereunder to
be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights
therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive
property of LOCAL AGENCY without restriction or limitation upon its use or dissemination by LOCAL
AGENCY.
C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the
work product is suitable in any way for any other project except the one detailed in this
AGREEMENT. Any reuse by LOCAL AGENCY for another project or project location shall be at
LOCAL AGENCY’s sole risk.
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. LOCAL AGENCY 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.
ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR
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A. If claims are filed by LOCAL AGENCY’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 LOCAL AGENCY’S construction contract
administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration
proceedings.
B. CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against
construction contractor claims will be made available on reasonable notice from LOCAL AGENCY.
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 LOCAL AGENCY’s construction contractor
claims will be performed pursuant to a written contract amendment, if necessary, extending the
termination date of this AGREEMENT in order to resolve the construction claims.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL
AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available
to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from
unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY
relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information,
or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the
AGREEMENT or LOCAL AGENCY’s actions on the same, except to LOCAL AGENCY’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.
D. 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 LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.
E. All information related to the construction estimate is confidential and shall not be disclosed by
CONSULTANT to any entity, other than LOCAL AGENCY, 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 LOCAL AGENCY or except by court order. If
CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide
information in violation of this AGREEMENT, LOCAL AGENCY has the right to reimbursement and
indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information,
including, but not limited to, LOCAL AGENCY’s attorney’s fees and disbursements, including without
limitation experts’ fees and disbursements.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury
that no more than one final unappealable finding of contempt of court by a federal court has been issued
against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s
failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of
the National Labor Relations Board.
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ARTICLE XXX EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by LOCAL AGENCY. 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.
ARTICLE XXXI RETENTION OF FUNDS
No retainage will be held by the LOCAL AGENCY from progress payments due the CONSULTANT. Any
retainage held by the CONSULTANT or subconsultants from progress payments due subconsultants
shall be promptly paid in full to subconsultants within thirty (30) days after the subconsultant’s work is
satisfactorily completed. Federal law (49 CFR §26.29) requires that any delay or postponement of
payment over thirty (30) calendar days may take place only for good cause and with the LOCAL
AGENCY’s prior written approval. Any violation of this provision shall subject the violating CONSULTANT
or subconsultant to the penalties, sanctions and other remedies specified in Business and Professions
Code §7108.5. These requirements shall not be construed to limit or impair any contractual,
administrative, or judicial remedies, otherwise available to the CONSULTANT or subconsultant in the
event of a dispute involving late payment or nonpayment by the CONSULTANT, deficient subconsultant
performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE
CONSULTANT and subconsultants.
ARTICLE XXXII NOTIFICATION
All notices hereunder and communications regarding interpretation of the terms of this AGREEMENT
and changes thereto, shall be effected by the mailing thereof by registered or certified mail, return receipt
requested, postage prepaid, and addressed as follows:
CONSULTANT: Park Engineering, Inc.
Steve Patterson, Vice President
372 Village Square
Orinda, CA 94563
LOCAL AGENCY: City of San Rafael
Bill Guerin, Contract Administrator
111 Morphew Street
San Rafael, CA 94901
ARTICLE XXXIII CONTRACT
The two parties to this AGREEMENT, who are the before named CONSULTANT and the before named
LOCAL AGENCY, hereby agree that this AGREEMENT constitutes the entire AGREEMENT which is
made and concluded in duplicate between the two parties. Both of these parties for and in consideration
of the payments to be made, conditions mentioned, and work to be performed; each agree to diligently
perform in accordance with the terms and conditions of this AGREEMENT as evidenced by the signatures
below.
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ARTICLE XXXIV NO THIRD PARTY BENEFICIARIES
LOCAL AGENCY and CONSULTANT do not intend, by any provision of this contract, to create in any third
party, any benefit or right owed by one party, under the terms and conditions of this AGREEMENT, to the
other party.
ARTICLE XXXV COSTS AND ATTORNEY'S FEES
The prevailing party in any action brought to enforce the terms and conditions of this AGREEMENT, or
arising out of the performance of this AGREEMENT, may recover its reasonable costs (including claims
administration) and attorney's fees expended in connection with such action.
ARTICLE XXXVI LOCAL AGENCY BUSINESS LICENSE / OTHER TAXES
CONSULTANT shall obtain and maintain during the duration of this contract, a LOCAL AGENCY business
license as required by the San Rafael Municipal Code. CONSULTANT shall pay any and all state and
federal taxes and any other applicable taxes. LOCAL AGENCY shall not be required to pay for any work
performed under this contract, until CONSULTANT has provided LOCAL AGENCY with a completed Internal
Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification).
ARTICLE XXXVII WAIVERS
The waiver by either party of any breach or violation of any term, covenant or condition of this AGREEMENT,
or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant,
condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term,
covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee,
performance, or other consideration which may become due or owing under this AGREEMENT, shall not be
deemed to be a waiver of any preceding breach or violation by the other party of any term, condition,
covenant of this contract or any applicable law, ordinance or regulation.
ARTICLE XXXVIII APPLICABLE LAW
The laws of the State of California shall govern this AGREEMENT.
CONSULTANT shall observe and comply with all applicable federal, state and local laws, ordinances, codes
and regulations, in the performance of its duties and obligations under this AGREEMENT. CONSULTANT
shall perform all services under this AGREEMENT in accordance with these laws, ordinances, codes and
regulations. CONSULTANT shall release, defend, indemnify and hold harmless LOCAL AGENCY, its
officers, agents and employees from any and all damages, liabilities, penalties, fines and all other
consequences from any noncompliance or violation of any laws, ordinances, codes or regulations.
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ARTICLE XXXIX SIGNATURES
CITY OF SAN RAFAEL PARK ENGINEERING, INC.
By:______________________________
JIM SCHUTZ
City Manager
Title:
and
ATTEST:
By:______________________________
LINDSAY LARA
City Clerk
Title:
APPROVED AS TO FORM:
ROBERT F. EPSTEIN
City Attorney
DocuSign Envelope ID: 4CF94618-A06E-43D7-AA96-EEFIDDC1A391
FIRST AMENDMENT TO THE FEDERAL PROFESSIONAL SERVICES
AGREEMENT WITH KIMLEY-HORN AND ASSOCIATES, INC. FOR THIRD
STREET SAFETY IMPROVEMENTS PROJECT
THIS FIRST AMENDMENT to the Federal Professional Services Agreement by and
between the CITY OF SAN RAFAEL (hereinafter "CITY"), and KIMLEY-HORN AND
ASSOCIATES, INC. (hereinafter "CONSULTANT"), is made and entered into as of the
day of 207
RECITALS
WHEREAS, the CITY and CONSULTANT entered into a Federal Professional
Services Agreement dated March 3, 2020 to perform professional services in connection with
CITY'S Third Street Safety Improvements Project, for an amount not to exceed $280,000 (the
"Agreement"); and
WHEREAS, CITY requires additional professional services from the CONSULTANT,
and the CONSULTANT is willing to provide such services.
AMENDMENT TO AGREEMENT
NOW, THEREFORE, the parties hereby agree to amend the Agreement as follows:
I. Article III of the Agreement, entitled "STATEMENT OF WORK" is hereby
amended to include the additional services set forth in CONSULTANT's
proposal dated April 8, 2022, attached to this First Amendment as Exhibit A and
incorporated herein by reference.
2. Article V of the Agreement, entitled "ALLOWABLE COSTS AND
PAYMENTS" is hereby amended to include additional compensation payable to
CONSULTANT for the services described in Exhibit A to this first Amendment,
on a Time and Materials basis in accordance with Exhibit A, in a not -to -exceed
amount of $40,000, and to change the total not -to -exceed amount under the
Agreement to $320,000.
3. Except as specifically amended herein, all of the other provisions, terms and
obligations of the Agreement between the parties shall remain valid and shall be
in full force.
I
DocuSign Envelope ID: 4CF94618-A06E-43D7-AA96-EEF1DDC1A391
IN WITNESS WHEREOF, the parties have executed this First Amendment on the day,
month, and year first above written.
CITY OF SAN RAFAEL
J[ S HUTZ, ity Manager
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ATTEST:
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LINDSAY LAR -A,, City Clerk
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APPROVED AS TO FORM:
bv�—OBERT F. EPSTEIN, Attorney
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CONSULTANT
docuSigaed by:
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y �8I38EC4E287cd1�_ —
Kwasi Akwabi-Ameyaw
Name:
Title: vice President
[If Contractor is a corporation, add signature
of second corporate officer]
dncu5ignod by:
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By:
Name: Kevin Aguigui
Title:
vice President
Kimley >>Horn
April 8, 2022
(by email)
Mr. Shawn Graf
City of San Rafael Public Works
111 Morphew St, San Rafael, CA 94901
(415) 458-5347
shawn.graf@cityofsanrafael.org
RE: 3'd Street Safety Improvements — Construction Support Services
Dear Shawn:
As requested, attached is our scope and fee to provide construction support services during the
construction of the 3`d Street Safety Improvements project. We understand that the 3rd Street Safety
Improvements will be constructed in conjunction with the 3'd Street Rehabilitation project, and thus we
have assumed that our services would include coordination with that project.
If you have any questions, please do not hesitate to call me at (510) 350-0217, or Tanya Welch at
(510) 350-0235. We look forward to continuing to work with you and the City on this important
project.
Sincerely,
KIMLEY-HORN AND ASSOCIATES, INC.
Kevin G. Aguigui, P.E.
Senior Project Manager/Vice President
Exhibit A
Kimley>>)Horn
Project Understanding
The V Street Safety Improvement project is now moving into the construction phase. As construction of
the project moves forward, the City may have the need for support services by Kimley-Horn. The Scope of
Work outlines some of the anticipated services that may be needed.
Scope of Work
Task 1: Construction Support Services
Kimley-Horn will provide support during the construction phase of this project on an as -needed basis.
This support shall include, but not be limited to, attendance at meetings, responding to RFIs to provide
clarification of design intent, review of contractor submittals, and other coordination services.
Kimley-Horn will review relevant submittals from the Contactor including equipment and infrastructure
cut sheets, fiber optic test plans and results for adherence to the contract specifications, construction
staging/traffic control plans, and other applicable submittals as requested by the City. The equipment
and infrastructure submittals includes, but is not limited to, traffic signal and streetlight poles and mast
arms, sign head assemblies, luminaires, signal cabinet equipment, pull boxes, conduits, cables/conductors,
field communications equipment, fiber equipment, fiber optic cable, fiber optic test results and other
related testing that is identified in the contract plans and specifications.
Kimley-Horn will attend office and field meetings with the City and/or the City's CM consultant to discuss
any construction issues. As needed, Kimley-Horn will review up to two Contract Change Orders (CCO) for
design changes as part of this scope. Kimley-Horn will also provide support services as needed to
coordinate with the Yd Street Rehabilitation project.
Kimley-Horn shall have no responsibility for any contractor's means, methods, techniques, equipment
choice and usage, sequence, schedule, safety programs, or safety practices, nor shall Kimley-Horn have
any authority or responsibility to stop or direct the work of any contractor.
Any field visits by Kimley-Horn staff will be for the purpose of endeavoring to provide the City a greater
degree of confidence that the completed work of its contractors will generally conform to the
construction documents prepared by Kimley-Horn. Kimley-Horn neither guarantees the performance of
contractors, nor assumes responsibility for any contractor's failure to perform its work in accordance with
the contract documents.
Deliverables:
• Responses to Requests for Information from Contractor
• Review of equipment cut sheets
• Review of fiber optic test results
• Contract Change Order (up to two)
1I?age
Kimley)))Horn
Task 2: Record Drawings
Kimley-Horn will prepare "Record Drawings" based on redlined plans to be provided by the City and/or
Contractor. Kimley-Horn will submit the "Record Drawings" to the City on reproducible mylar or vellum
and provide the project drawings in AutoCAD format acceptable to the City.
Deliverables:
Record Drawings
Updated traffic signal plans and schedules (AutoCAD)
Schedule
Kimley-Horn will provide services as requested by the City upon receipt of the notice to proceed (NTP).
Fee
Kimley-Horn will provide construction support services on a time and materials basis subject to a not -to -
exceed fee of $40,000, which includes all administrative fees and direct expenses. If necessary, we will seek
City approval to allocate additional budget should the services requested result in exceeding the not -to -
exceed fee. Direct expenses include outside reproduction, overnight delivery services, and plotter printouts.
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