HomeMy WebLinkAboutReso 178-2021 (21-725)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 178-2021
File Number: 21-725 Enactment Number: RES 178-2021
RESOLUTION APPROVING A CONSULTING
SERVICES AGREEMENT FOR CONSTRUCTION
MANAGEMENT SERVICES WITH SWINERTON
MANAGEMENT & CONSULTING OF SAN
FRANCISCO, CALIFORNIA FOR THE ORANGE
MEMORIAL PARK SPORTS FIELD RENOVATION
(PROJECT NO. PK1402) IN AN AMOUNT NOT TO
EXCEED $377,690.
WHEREAS, Orange Memorial Park is a multiuse park located in the heart of South San
Francisco with aging baseball and softball fields; and
WHEREAS, the Orange Memorial Park Storm Water Capture project will require demolition
of the existing sports fields to allow for installation of subsurface storm water capture and treatment
elements; and
WHEREAS, the Storm Water Capture project created an opportunity to construct a new
multi -sport synthetic field on top of the Storm Water Capture project, with the field scheduled to go out
to bid for construction in December, 2021; and
WHEREAS, on August 23, 2021, Staff advertised a Request for Proposals (RFP) for consultant
services for construction management; and
WHEREAS, the project is included in the City of South San Francisco's Fiscal Year 2021-22
Capital Improvement Program (Project No. pk1402).
WHEREAS, the City received three responses to the RFP and, upon evaluation by a selection
panel and negotiation with the top -score respondent, City staff recommends selecting Swinerton
Management and Consulting of San Francisco, California for the work and enter into a consulting
services agreement with that firm.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San
Francisco that the City Council hereby approves a consulting services agreement, attached herewith as
Exhibit A, with Swinerton Management and Consulting of San Francisco, California in an amount not to
exceed $377,690, conditioned on the consultant's timely execution of the consulting services agreement
and submission of all required documents, including but not limited to, certificates of insurance and
endorsements, in accordance with the Project documents.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the
agreement in
City of South San Francisco Page 1
File Number. 21-725
Enactment Number: RES 178-2021
substantially the same form as Exhibit A and to execute any other related documents on behalf of the
City upon timely submission by Swinerton Management and Consulting a signed contract and all other
necessary documents, subject to approval as to form by the City Attorney.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to take any other
required actions consistent with the intent of this resolution, that do not materially increase the City's
obligations.
At a meeting of the City Council on 10/13/2021, a motion was made by Vice Mayor Nagales,
seconded by Councilmember Nicolas, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Addiego, Vice Mayor Nagales, Councilmember Nicolas, Councilmember
Coleman, and Councilmember Flores
Attest by -1�9 �L
sa Govea Acosta, City Clerk
City of South San Francisco Page 2
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND
SWINERTON MANAGEMENT & CONSULTING
THIS AGREEMENT for consulting services is made by and between the City of South San Francisco
(“City”) and SWINERTON MANAGEMENT & CONSULTING (“Consultant”) (together sometimes
referred to as the “Parties”) as of October 13, 2021 (the “Effective Date”).
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall
provide to City the services described in the Scope of Work attached hereto and incorporated herein as
Exhibit A, at the time and place and in the manner specified therein. In the event of a conflict in or
inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall
end on June 30, 2023, the date of completion specified in Exhibit A, and Consultant shall
complete the work described in Exhibit A on or before that date, unless the term of the
Agreement is otherwise terminated or extended, as provided for in Section 8. The time
provided to Consultant to complete the services required by this Agreement shall not affect
the City’s right to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Consultant shall perform all work required by this Agreement in
a substantial, first-class manner and shall conform to the standards of quality normally
observed by a person practicing in Consultant's profession.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that City, in its sole discretion, at any time
during the term of this Agreement, desires the reassignment of any such persons, Consultant
shall, immediately upon receiving notice from City of such desire of City, reassign such
person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance provided
in Sections 1.1 and 1.2 above and to satisfy Consultant’s obligations hereunder.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed THREE
HUNDRED SEVENTY SEVEN THOUSAND NINE HUNDRED SIXTY DOLLARS ($377,960),
notwithstanding any contrary indications that may be contained in Consultant’s proposal, for services to be
performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this
Agreement and Consultant’s proposal, attached as Exhibit A, or Consultant’s compensation schedule,
attached as Exhibit B, regarding the amount of compensation, the Agreement shall prevail. City shall pay
Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein.
The payments specified below shall be the only payments from City to Consultant for services rendered
pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except
as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by
more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this
Agreement is based upon Consultant’s estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the Parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once per month during the
term of this Agreement, based on the cost for all services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain all the following information:
Serial identifications of progress bills (i.e., Progress Bill No. 1 for the first invoice,
etc.);
The beginning and ending dates of the billing period;
A task summary containing the original contract amount, the amount of prior billings,
the total due this period, the balance available under the Agreement, and the
percentage of completion;
At City’s option, for each work item in each task, a copy of the applicable time entries
or time sheets shall be submitted showing the name of the person doing the work,
the hours spent by each person, a brief description of the work, and each
reimbursable expense;
The total number of hours of work performed under the Agreement by each
employee, agent, and subcontractor of Consultant performing services hereunder;
Consultant shall give separate notice to the City when the total number of hours
worked by Consultant and any individual employee, agent, or subcontractor of
Consultant reaches or exceeds eight hundred (800) hours within a twelve (12)-
month period under this Agreement and any other agreement between Consultant
and City. Such notice shall include an estimate of the time necessary to complete
work described in Exhibit A and the estimate of time necessary to complete work
under any other agreement between Consultant and City, if applicable.
The amount and purpose of actual expenditures for which reimbursement is sought;
The Consultant’s signature.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for
services satisfactorily performed, and for authorized reimbursable costs incurred. City shall
have thirty (30) days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant. Each invoice shall include all expenses and actives performed
during the invoice period for which Consultant expects to receive payment.
2.3 Final Payment. City shall pay the five percent (5%) of the total sum due pursuant to this
Agreement within sixty (60) days after completion of the services and submittal to City of a
final invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this
Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Consultant in rendering services pursuant to this Agreement. City shall make no
payment for any extra, further, or additional service pursuant to this Agreement. In no event
shall Consultant submit any invoice for an amount in excess of the maximum amount of
compensation provided above either for a task or for the entire Agreement, unless the
Agreement is modified prior to the submission of such an invoice by a properly executed
change order or amendment.
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto and incorporated herein
as Exhibit B.
2.6 Reimbursable Expenses. The following constitute reimbursable expenses authorized by
this Agreement: travel and printing services. Reimbursable expenses shall not exceed
$1,500. Expenses not listed above are not chargeable to City. Reimbursable expenses are
included in the total amount of compensation provided under Section 2 of this Agreement
that shall not be exceeded.
2.7 Payment of Taxes; Tax Withholding. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state taxes. To
be exempt from tax withholding, Consultant must provide City with a valid California
Franchise Tax Board form 590 (“Form 590”), as may be amended and such Form 590 shall
be attached hereto and incorporated herein as Exhibit C. Unless Consultant provides City
with a valid Form 590 or other valid, written evidence of an exemption or waiver from
withholding, City may withhold California taxes from payments to Consultant as required by
law. Consultant shall obtain, and maintain on file for three (3) years after the termination of
this Agreement, Form 590s (or other written evidence of exemptions or waivers) from all
subcontractors. Consultant accepts sole responsibility for withholding taxes from any non-
California resident subcontractor and shall submit written documentation of compliance with
Consultant’s withholding duty to City upon request.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this
Agreement pursuant to Section 8, the City shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
2.10 False Claims Act. Presenting a false or fraudulent claim for payment, including a change
order, is a violation of the California False Claims Act and may result in treble damages and
a fine of five thousand ($5,000) to ten thousand dollars ($10,000) per violation.
2.11 Prevailing Wage. Where applicable, the wages to be paid for a day's work to all classes of
laborers, workmen, or mechanics on the work contemplated by this Agreement, shall be not
less than the prevailing rate for a day’s work in the same trade or occupation in the locality
within the state where the work hereby contemplates to be performed as determined by the
Director of Industrial Relations pursuant to the Director’s authority under Labor Code Section
1770, et seq. Each laborer, worker or mechanic employed by Consultant or by any
subcontractor shall receive the wages herein provided for. The Consultant shall pay two
hundred dollars ($200), or whatever amount may be set by Labor Code Section 1775, as
may be amended, per day penalty for each worker paid less than prevailing rate of per diem
wages. The difference between the prevailing rate of per diem wages and the wage paid to
each worker shall be paid by the Consultant to each worker.
An error on the part of an awarding body does not relieve the Consultant from responsibility
for payment of the prevailing rate of per diem wages and penalties pursuant to Labor Code
Sections 1770 1775. The City will not recognize any claim for additional compensation
because of the payment by the Consultant for any wage rate in excess of prevailing wage
rate set forth. The possibility of wage increases is one of the elements to be considered by
the Consultant.
a. Posting of Schedule of Prevailing Wage Rates and Deductions. If the schedule of
prevailing wage rates is not attached hereto pursuant to Labor Code Section 1773.2, the
Consultant shall post at appropriate conspicuous points at the site of the project a schedule
showing all determined prevailing wage rates for the various classes of laborers and
mechanics to be engaged in work on the project under this contract and all deductions, if
any, required by law to be made from unpaid wages actually earned by the laborers and
mechanics so engaged.
b. Payroll Records. Each Consultant and subcontractor shall keep an accurate payroll
record, showing the name, address, social security number, work week, and the actual per
diem wages paid to each journeyman, apprentice, worker, or other employee employed by
the Consultant in connection with the public work. Such records shall be certified and
submitted weekly as required by Labor Code Section 1776.”
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost
and expense, provide all facilities and equipment that may be necessary to perform the services required by
this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section,
and only under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be
reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and
the information in possession of the City. The location, quantity, and time of furnishing those facilities shall
be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve
incurring any direct expense, including but not limited to computer, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and
amounts of insurance listed below against claims for injuries to persons or damages to property that may
arise from or in connection with the performance of the work hereunder by the Consultant and its agents,
representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall
provide proof satisfactory to City of such insurance that meets the requirements of this section and under
forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to
the City. Consultant shall maintain the insurance policies required by this section throughout the term of this
Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow
any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required
herein for the subcontractor(s). Consultant shall maintain all required insurance listed herein for the duration
of this Agreement.
4.1 Workers’ Compensation. Consultant shall, at its sole cost and expense, maintain Statutory
Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all
persons employed directly or indirectly by Consultant. The Statutory Workers’ Compensation
Insurance and Employer’s Liability Insurance shall be provided with limits of not less than
$1,000,000 per accident. In the alternative, Consultant may rely on a self-insurance program
to meet those requirements, but only if the program of self-insurance complies fully with the
provisions of the California Labor Code. Determination of whether a self-insurance program
meets the standards of the Labor Code shall be solely in the discretion of the Contract
Administrator, as defined in Section 10.9. The insurer, if insurance is provided, or the
Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation
against the City and its officers, officials, employees, and volunteers for loss arising from
work performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this Agreement
in an amount not less than ONE MILLION DOLLARS ($1,000,000) per occurrence,
combined single limit coverage for risks associated with the work contemplated by
this Agreement. If a Commercial General Liability Insurance or an Automobile
Liability form or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required
occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting
therefrom, and damage to property resulting from activities contemplated under this
Agreement, including the use of owned and non-owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 or GL 0002 (most recent editions) covering comprehensive General
Liability Insurance and Services Office form number GL 0404 covering Broad Form
Comprehensive General Liability on an “occurrence” basis. Automobile coverage
shall be at least as broad as Insurance Services Office Automobile Liability form CA
0001 (most recent edition). No endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the insurance
coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an accident basis, and not
on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the policy
shall not affect coverage provided to City and its officers, employees,
agents, and volunteers.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain for
the period covered by this Agreement professional liability insurance for licensed
professionals performing work pursuant to this Agreement in an amount not less
than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals’
errors and omissions. Any deductible or self-insured retention shall not exceed ONE
HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000) per claim.
4.3.2 Claims-made limitations. The following provisions shall apply if the professional
liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided
for at least five (5) years after completion of the Agreement or the work, so
long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another
claims-made policy form with a retroactive date that precedes the date of
this Agreement, Consultant shall purchase an extended period coverage
for a minimum of five (5) years after completion of work under this
Agreement or the work. The City shall have the right to exercise, at the
Consultant’s sole cost and expense, any extended reporting provisions of
the policy, if the Consultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to the City
for review prior to the commencement of any work under this Agreement.
4.3.3 Additional Requirements. A certified endorsement to include contractual liability
shall be included in the policy
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with
insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish City with complete copies of all policies delivered to
Consultant by the insurer, including complete copies of all endorsements attached
to those policies. All copies of policies and certified endorsements shall show the
signature of a person authorized by that insurer to bind coverage on its behalf. If
the City does not receive the required insurance documents prior to the Consultant
beginning work, this shall not waive the Consultant’s obligation to provide them. The
City reserves the right to require complete copies of all required insurance policies
at any time.
4.4.3 Notice of Reduction in or Cancellation of Coverage. A certified endorsement
shall be attached to all insurance obtained pursuant to this Agreement stating that
coverage shall not be suspended, voided, canceled by either party, or reduced in
coverage or in limits, except after thirty (30) days' prior written notice by certified
mail, return receipt requested, has been given to the City. In the event that any
coverage required by this section is reduced, limited, cancelled, or materially
affected in any other manner, Consultant shall provide written notice to City at
Consultant’s earliest possible opportunity and in no case later than ten (10) working
days after Consultant is notified of the change in coverage.
4.4.4 Additional insured; primary insurance. City and its officers, employees, agents,
and volunteers shall be covered as additional insureds with respect to each of the
following: liability arising out of activities performed by or on behalf of Consultant,
including the City’s general supervision of Consultant; products and completed
operations of Consultant, as applicable; premises owned, occupied, or used by
Consultant; and automobiles owned, leased, or used by the Consultant in the course
of providing services pursuant to this Agreement. The coverage shall contain no
special limitations on the scope of protection afforded to City or its officers,
employees, agents, or volunteers.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to the City and its officers, officials, employees and
volunteers, and that no insurance or self-insurance maintained by the City shall be
called upon to contribute to a loss under the coverage.
4.4.5 Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain
the approval of City for the self-insured retentions and deductibles before beginning
any of the services or work called for by any term of this Agreement. Further, if the
Consultant’s insurance policy includes a self-insured retention that must be paid by
a named insured as a precondition of the insurer’s liability, or which has the effect
of providing that payments of the self-insured retention by others, including
additional insureds or insurers do not serve to satisfy the self-insured retention, such
provisions must be modified by special endorsement so as to not apply to the
additional insured coverage required by this agreement so as to not prevent any of
the parties to this agreement from satisfying or paying the self-insured retention
required to be paid as a precondition to the insurer’s liability. Additionally, the
certificates of insurance must note whether the policy does or does not include any
self-insured retention and also must disclose the deductible.
During the period covered by this Agreement, only upon the prior express written
authorization of Contract Administrator, Consultant may increase such deductibles
or self-insured retentions with respect to City, its officers, employees, agents, and
volunteers. The Contract Administrator may condition approval of an increase in
deductible or self-insured retention levels with a requirement that Consultant
procure a bond, guaranteeing payment of losses and related investigations, claim
administration, and defense expenses that is satisfactory in all respects to each of
them.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
4.4.7 Wasting Policy. No insurance policy required by Section 4 shall include a “wasting”
policy limit.
4.4.8 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverage, scope, limits, and forms of
such insurance are either not commercially available, or that the City’s interests are
otherwise fully protected.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or
maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for
Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
b. Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder, or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES. To the fullest extent
permitted by law, Consultant shall, to the fullest extent allowed by law, with respect to all Services performed
in connection with this Agreement, indemnify, defend with counsel selected by the City, and hold harmless
the City and its officials, officers, employees, agents, and volunteers from and against any and all losses,
liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury,
loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance
(“Claims”), to the extent caused, directly or indirectly, in whole or in part, by the willful misconduct or negligent
acts or omissions of Consultant or its employees, subcontractors, or agents. The foregoing obligation of
Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly
from the gross negligence or willful misconduct of the City or its officers, employees, agents, or volunteers
and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to
the injury, loss of life, damage to property, or violation of law.
5.1 Insurance Not in Place of Indemnity. Acceptance by City of insurance certificates and
endorsements required under this Agreement does not relieve Consultant from liability
under this indemnification and hold harmless clause. This indemnification and hold
harmless clause shall apply to any damages or claims for damages whether or not such
insurance policies shall have been determined to apply. By execution of this Agreement,
Consultant acknowledges and agrees to the provisions of this Section and that it is a
material element of consideration.
5.2 PERS Liability. In the event that Consultant or any employee, agent, or subcontractor of
Consultant providing services under this Agreement is determined by a court of competent
jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for
enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold
harmless City for the payment of any employee and/or employer contributions for PERS
benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for
the payment of any penalties and interest on such contributions, which would otherwise be
the responsibility of City.
5.3 Third Party Claims. With respect to third party claims against the Consultant, the
Consultant waives any and all rights of any type of express or implied indemnity against the
Indemnitees.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall
be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of Consultant's services rendered pursuant
to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however,
otherwise City shall not have the right to control the means by which Consultant
accomplishes services rendered pursuant to this Agreement. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant
and any of its employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all
claims to, any compensation, benefit, or any incident of employment by City, including but
not limited to eligibility to enroll in the California Public Employees Retirement System
(PERS) as an employee of City and entitlement to any contribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all federal, state and local laws and regulations applicable to the performance of the work
hereunder. Consultant’s failure to comply with such law(s) or regulation(s) shall constitute a
breach of contract.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant and any subcontractors shall
comply with all applicable rules and regulations to which City is bound by the terms of such
fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its
employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals, including from City, of whatsoever nature that are legally required to practice their
respective professions. Consultant represents and warrants to City that Consultant and its
employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals that are
legally required to practice their respective professions. In addition to the foregoing,
Consultant and any subcontractors shall obtain and maintain during the term of this
Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis
of a person’s race, religion, color, national origin, age, physical or mental handicap or
disability, medical condition, marital status, sex, or sexual orientation, against any employee,
applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient
of, or applicant for any services or programs provided by Consultant under this Agreement.
Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and
requirements related to equal opportunity and nondiscrimination in employment, contracting,
and the provision of any services that are the subject of this Agreement, including but not
limited to the satisfaction of any positive obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written
notification to Consultant.
Consultant may cancel this Agreement for cause upon thirty (30) days’ written notice to City
and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of notice of termination; City, however, may condition
payment of such compensation upon Consultant delivering to City all materials described in
Section 9.1.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require
Consultant to execute a written amendment to this Agreement, as provided for herein.
Consultant understands and agrees that, if City grants such an extension, City shall have no
obligation to provide Consultant with compensation beyond the maximum amount provided
for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall
have no obligation to reimburse Consultant for any otherwise reimbursable expenses
incurred during the extension period.
8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the
Parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant’s unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator. Consultant shall not assign or subcontract any
portion of the performance contemplated and provided for herein, other than to the
subcontractors noted in the proposal, without prior written approval of the Contract
Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions
of this Agreement allocating liability between City and Consultant shall survive the
termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement, City’s remedies shall include, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished
by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work described
in Exhibit A that is unfinished at the time of breach and the amount that City would
have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models,
charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other form, that Consultant
prepares or obtains pursuant to this Agreement and that relate to the matters covered
hereunder shall be the property of the City. Consultant hereby agrees to deliver those
documents to the City upon termination of the Agreement. It is understood and agreed that
the documents and other materials, including but not limited to those described above,
prepared pursuant to this Agreement are prepared specifically for the City and are not
necessarily suitable for any future or other use. City and Consultant agree that, until final
approval by City, all data, plans, specifications, reports and other documents are confidential
and will not be released to third parties without prior written consent of both Parties except
as required by law.
9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of
account, invoices, vouchers, canceled checks, and other records or documents evidencing
or relating to charges for services or expenditures and disbursements charged to the City
under this Agreement for a minimum of three (3) years, or for any longer period required by
law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of the
City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds ten thousand ($10,000.00), the Agreement shall
be subject to the examination and audit of the State Auditor, at the request of City or as part
of any audit of the City, for a period of three (3) years after final payment under the
Agreement.
9.4 Records Submitted in Response to an Invitation to Bid or Request for Proposals. All
responses to a Request for Proposals (RFP) or invitation to bid issued by the City become
the exclusive property of the City. At such time as the City selects a bid, all proposals
received become a matter of public record, and shall be regarded as public records, with the
exception of those elements in each proposal that are defined by Consultant and plainly
marked as “Confidential,” "Business Secret" or “Trade Secret."
The City shall not be liable or in any way responsible for the disclosure of any such proposal
or portions thereof, if Consultant has not plainly marked it as a "Trade Secret" or "Business
Secret," or if disclosure is required under the Public Records Act.
Although the California Public Records Act recognizes that certain confidential trade secret
information may be protected from disclosure, the City may not be in a position to establish
that the information that a prospective bidder submits is a trade secret. If a request is made
for information marked "Trade Secret" or "Business Secret," and the requester takes legal
action seeking release of the materials it believes does not constitute trade secret
information, by submitting a proposal, Consultant agrees to indemnify, defend and hold
harmless the City, its agents and employees, from any judgment, fines, penalties, and award
of attorneys’ fees awarded against the City in favor of the party requesting the information,
and any and all costs connected with that defense. This obligation to indemnify survives the
City's award of the contract. Consultant agrees that this indemnification survives as long as
the trade secret information is in the City's possession, which includes a minimum retention
period for such documents.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If a Party to this Agreement brings any action, including arbitration or an
action for declaratory relief, to enforce or interpret the provision of this Agreement, the
prevailing Party shall be entitled to reasonable attorneys’ fees in addition to any other relief
to which that Party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either Party brings any action against the other under this
Agreement, the Parties agree that trial of such action shall be vested exclusively in the state
courts of California in the County of San Mateo or in the United States District Court for the
Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision
of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the Parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies
and other printed material on recycled paper to the extent it is available at equal or less cost
than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place Consultant
in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at
California Government Code Section 81000, et seq.
Consultant shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this Agreement
that would violate California Government Code Sections 1090, et seq.
Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12)
months, an employee, agent, appointee, or official of the City. If Consultant was an
employee, agent, appointee, or official of the City in the previous twelve (12) months,
Consultant warrants that it did not participate in any manner in the forming of this Agreement.
Consultant understands that, if this Agreement is made in violation of Government Code
§1090, et seq., the entire Agreement is void and Consultant will not be entitled to any
compensation for services performed pursuant to this Agreement, including reimbursement
of expenses, and Consultant will be required to reimburse the City for any sums paid to the
Consultant. Consultant understands that, in addition to the foregoing, it may be subject to
criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be
disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Philip Vitale ("Contract
Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
10.10 Notices. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when
received if personally delivered; (ii) when received if transmitted by telecopy, if received
during normal business hours on a business day (or if not, the next business day after
delivery) provided that such facsimile is legible and that at the time such facsimile is sent the
sending Party receives written confirmation of receipt; (iii) if sent for next day delivery to a
domestic address by recognized overnight delivery service (e.g., Federal Express); and (iv)
upon receipt, if sent by certified or registered mail, return receipt requested. In each case
notice shall be sent to the respective Parties as follows:
Consultant
Swinerton Management & Consulting
260 Townsend Street
San Francisco, CA 9107
City
City Clerk
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
10.11 Professional Seal. Where applicable in the determination of the contract administrator, the
first page of a technical report, first page of design specifications, and each page of
construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with report/design responsibility," as in the
following example.
_________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated
herein as Exhibits A, B, [[and]C[, and D]] [ENSURE THAT THE CORRECT EXHIBITS ARE
LISTED] represents the entire and integrated agreement between City and Consultant and
supersedes all prior negotiations, representations, or agreements, either written or oral
pertaining to the matters herein.
Exhibit A Scope of Services
Exhibit B Compensation Schedule
Exhibit C California Franchise Tax Board form 590
10.13 Counterparts. This Agreement may be executed in counterparts and/or by facsimile or other
electronic means, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken together with
other signed counterpart, shall constitute one Agreement, which shall be binding upon and
effective as to all Parties.
10.14 Construction. The headings in this Agreement are for the purpose of reference only and
shall not limit or otherwise affect any of the terms of this Agreement. The parties have had
an equal opportunity to participate in the drafting of this Agreement; therefore any
construction as against the drafting party shall not apply to this Agreement.
10.15 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties
hereto with no intent to benefit any non-signatory third parties.
[SIGNATURES ON FOLLOWING PAGE]
The Parties have executed this Agreement as of the Effective Date.
CITY OF SOUTH SAN FRANCISCO CONSULTANT
____________________________ ______________________________
Mike Futrell, City Manager Jeffrey Gee, VP/General Manager
Attest:
____________________________
City Clerk
Approved as to Form:
____________________________
City Attorney
2729964.1
EXHIBIT A
SCOPE OF SERVICES
.
Attend/Consuct Weekly Construction Progress Meetings, incl. mtg agendas and minutes
Develop and maintain daily inspection reports
Review and Field Measure completed work with Contractor
Community Outreach
SMC Contract Administration, management and QA/QC
Based on 120 Working Days contract duration
Coordinate Contract Final Quantities for City acceptance
Participate in punch list/final construction review.
Provide input for contract acceptance staff report
Project Close-out (documentation, etc)
EXHIBIT B
COMPENSATION SCHEDULE