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HomeMy WebLinkAboutReso 120-2017 (17-770)City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA City Council ' Resolution: RES 120 -2017 File Number: 17 -770 Enactment Number: RES 120 -2017 RESOLUTION APPROVING A CONSULTANT SERVICES AGREEMENT FOR CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES FOR THE WATER QUALITY CONTROL PLANT WET WEATHER AND DIGESTER IMPROVEMENTS PROJECT WITH KENNEDY /JENKS CONSULTANTS OF SAN FRANCISCO, CALIFORNIA IN THE AMOUNT NOT TO EXCEED $3,776,250, AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT, AND AUTHORIZING A TOTAL CONSTRUCTION MANAGEMENT BUDGET OF $4,153,875. WHEREAS, on June 8, 2017, City of South San Francisco ( "City ") staff issued a Request for Proposals (RFP) for the selection of a firm to (a) perform a constructability review of the Carollo plans and specifications for the Water Quality Control Plant Wet Weather and Digester Improvements Project, and (b) to provide construction management and inspection services once the project is under construction; and WHEREAS, on July 12, 2016, staff received proposals from three (3) firms; and WHEREAS, after reviewing the proposals and interviewing all three (3) firms, Kennedy /Jenks Consultants was ranked highest based on their project understanding, qualifications and expertise, interview, and experience; and WHEREAS, staff recommends approving the consulting services agreement for construction management and inspection services for the Water Quality Control Plant ( "WQCP ") Wet Weather and Digester Improvements Project with Kennedy /Jenks Consultants of San Francisco, California in the amount not to exceed $3,776,250 and authorizing a total construction management budget of $4,153,875; and WHEREAS, the Project is included in the City of South San Francisco's 2017 -2018 Capital Improvement Program (CIP) project number ss1301. 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, for construction management and inspection services for the WQCP Wet Weather and Digester Improvements Project with Kennedy /Jenks Consultants of San Francisco, California in an amount not to exceed City of South San Francisco Page 1 File Number: 17 -770 Enactment Number. RES 120 -2017 $3,776,250 and authorizing a total construction management budget of $4,153,875 conditioned on Kennedy /Jenks Consultants' timely execution of the consultant 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 Council of the City of South San Francisco authorizes the Finance Department to establish the Project Budget consistent with the information contained in the staff report. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the agreement and any other related documents on behalf of the City upon timely submission by Kennedy /Jenks Consultants' signed contract and all other documents, subject to approval by the City Attorney. At a meeting of the Special City Council on 10/11/2017, a motion was made by Richard Garbarino, seconded by Mark Addiego, that this Resolution be adopted. The motion passed. Yes: 5 Matsumoto, Normandy, Addiego, Gupta, and Garbarino c. , Attes by Kris Ma nelli City of South San Francisco Page 2 Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 1 of 21 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF SOUTH SAN FRANCISCO AND KENNEDY/JENKS Consultants THIS AGREEMENT for consulting services is made by and between the City of South San Francisco (“City”) and Kennedy/Jenks Consultants (“Consultant”) (together sometimes referred to as the “Parties”) as of September 6, 2017 (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 as Exhibit A, and incorporated herein, 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 December 31, 2021, and Consultant shall complete the work described in Exhibit A prior to 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 services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement in a professional 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 Million Seven Hundred Seventy Six Thousand Two Hundred Fifty Dollars ($3,776,250.00) 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 or Consultant’s compensation schedule attached as Exhibit B, regarding the amount of compensation, the body of this 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 EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 2 of 21 pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City, 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 services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain 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 Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds eight hundred (800) hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A;  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. City shall have no obligation to pay invoices submitted ninety (90) days past the performance of work or incurrence of cost. 2.3 Final Payment. City shall pay the last ten percent (10%) 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. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 3 of 21 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. Reimbursable expenses authorized by the City shall not exceed $25,000. Expenses not authorized by the City 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 D. 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 in order 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 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 EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 4 of 21 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 EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 5 of 21 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 Certificates of Insurance, attached hereto and incorporated herein as Exhibit C, indicating that Consultant has obtained or currently maintains insurance that meets the requirements of this section and under forms of insurance satisfactory, in all respects, 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). 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 ONE MILLION DOLLARS ($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 ($1,000,000.00) 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 there from, 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 and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 6 of 21 broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 8 and 9. 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 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 must provide extended reporting coverage for a minimum of five (5) years after completion of the 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 prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 7 of 21 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, it 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 cancelled by the insurer, 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 insured’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 the general liability policy 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- EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 8 of 21 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, except for the professional liability insurance policy. 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, except for the professional liability insurance policy. 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. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 9 of 21 Section 5. INDEMNIFICATION AND Consultant’S RESPONSIBILITIES. To the fullest extent permitted by law, Consultant shall 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, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. 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. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. 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. 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. 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. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 10 of 21 6.2 Consultant No 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 or 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 laws applicable to the performance of the work hereunder. 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 what-so-ever 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. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 11 of 21 Consultant may cancel this Agreement for cause upon 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 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 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. 8.4.1 Subcontracting A. Nothing contained in this contract or otherwise, shall create any contractual relation between City and any subconsultant(s), and no subcontract shall relieve Consultant of its responsibilities and obligations hereunder. Consultant agrees to be as fully responsible to City for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Consultant. Consultant’s obligation to pay its subconsultant(s) is an obligation independent from the City”s obligation to make payments to the Consultant. B. Consultant shall perform the work contemplated with resources available within its organization and no portion of the work pertinent to this contract shall be subcontracted without written authorization by City’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 12 of 21 C. Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to Consultant by City. D. Any subcontract in excess of $25,000 entered into as a result of this contract shall contain all the provisions in this contract to be applicable to subconsultants. E. Any substitution of subconsultant(s) must be approved in writing by City’s Contract Administrator prior to the start of work by the subconsultant(s). 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 unless required by law. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 13 of 21 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 DOLLARS ($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. 9.3.1 Retention of Records/Audit For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the contract pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of the contract, including but not limited to, the costs of administering the contract. All parties shall make such materials available at their respective offices at all reasonable times during the contract period and for three years from the date of final payment under the contract. The state, State Auditor, City, FHWA, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of Consultant and its certified public accountants (CPA) work papers that are pertinent to the contract and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain the provision. 9.3.2 Audit Review Procedures. A. Any dispute concerning a question of fact arising under an interim or post audit of this contract that is not disposed of by agreement, shall be reviewed by City’s Chief Financial Officer. B. Not later than 30 days after issuance of the final audit report, Consultant may request a review by City’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing. C. Neither the pendency of a dispute nor its consideration by City will excuse Consultant from full and timely performance, in accordance with the terms of this contract. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 14 of 21 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 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. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 15 of 21 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 Sam Bautista, Principal Engineer, ("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 EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 16 of 21 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: Kennedy/Jenks Consultants 303 Second Street, Suite 300 South San Francisco, CA 94107 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 all Exhibits attached hereto, and incorporated herein, 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. 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. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 17 of 21 10.16 Cost Principles and Administrative Requirements. A. Consultant agreed that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. B. Consultant also agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. C. Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 49CFR, Part 18 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by Consultant to City. D. All subcontracts in excess of $25,000 shall contain the above provisions. 10.17 State Prevailing Wage Rates. The State of California’s General Prevailing Wage Rates are not applicable to this contract. 10.18 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this contract was not obtained or secured through rebates, kickbacks or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right in its discretion; to terminate the contract without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration. 10.19 Statement of Compliance. A. 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 Government Code Section 12990 and Title 2, California Administrative Code, Section 8103. B. During the performance of this Contract, Consultant and its subconsultants shall not unlawfully discriminate, harass or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultants and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 18 of 21 Commission implementing Government Code §12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. 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. C. The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally-assisted programs of the Department of Transportation – Title 49 Code of Federal Regulations, Part 21 – Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the State of California 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 of their assignees and successors in interest. D. The Consultant, with regard to the work, performed by it during the Agreement shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT’s Regulations, including employment practices when the Agreement covers a program whose goal is employment. 10.20 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 Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any manner involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to City. B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Consultant responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 19 of 21 C. Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal Highway Administration. 10.21 Disadvantaged Business Enterprises (DBE) Participation. A. This contract is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Consultants who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal. B. The goal for DBE participation for this contract is 11%. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract DBE Information (Exhibit 10-O2) attached hereto and incorporated as part of the Contract. 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. DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with deferral funds. Consultant or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT-assisted agreements. Failure by Consultant to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as City deems appropriate. D. Any subcontract entered into as a result of this contract shall contain all of the provisions of this section. E. A DBE firm may be terminated only with prior written approval from LOCAL AGNECY and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting City consent for the termination, Consultant must meet the procedural requirements specified in 49 CFR 26.53(f). F. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the contract 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 contract, 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 contract is commensurate with the work it is actually performing, and other relevant factors. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 20 of 21 G. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract 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. H. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its contract with its own work force or the DBE subcontracts a greater portion of the work of the contract 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. I. Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work. J. Upon completion of the Contract, a summary of these records shall be prepared and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprise (DBE), First-Tier Subconsultants” CEM-2402F [Exhibit 17-F of the LAPM], 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. K. If a DBE subconsultant is decertified during the life of the contract, 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 Contract, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to City’s Contract Administrator within 30 days. The Parties have executed this Agreement as of the Effective Date. EXHIBIT A Consulting Services Agreement between [Rev:11.14.2016] September 6, 2017 City of South San Francisco and Kennedy/Jenks Consultants Page 21 of 21 CITY OF SOUTH SAN FRANCISCO KENNEDY/JENKS CONSULTANTS ____________________________ _____________________________________ City Manager NAME: Harold Glaser TITLE: Chief Operating Officer/President Attest: _____________________________ City Clerk Approved as to Form: ____________________________ City Attorney EXHIBIT A EXHIBIT A SCOPE OF SERVICES WQCP Wet Weather and Digesters Improvements Project CMS- Scope of Work Kennedy/Jenks Consultants (K/J) will perform the following preconstruction, construction and closeout phase tasks. TASK 1 – CONSTRUCTABILITY REVIEW SERVICES Within three weeks after receiving the 90% design documents, K/J will complete a constructability review (CR) of the 90% plans and specifications. The key focuses will be to help ensure that maintenance of plant operation (MOPO) can be achieved during the construction of all new and rehabilitated facilities and to minimize the potential for change orders and claims. The preliminary construction schedule and the preliminary construction cost estimate will also be reviewed. K/J will prepare brief written review comments in a tabular format referencing the affected specification or drawing number including concerns with any portion of the specifications including the Section 1140 construction sequencing and schedule constraints. The CR effort will include review of the bidding requirements including bid schedule and identifying grey areas, conflicts or missing information between the plans and specifications and/or between the drawings and details. Comments regarding MOPO, system outages, operability and maintainability will also be provided. The specifications review will include the digester and gas piping evacuation, scrubbing and permitting agency coordination requirements. Attention will also be paid to adequacy of specified lead based paint and asbestos mitigation requirements. Assumptions, City and Designer Assistance Needed and Deliverables: Each CR team member will focus on specific drawings and specification sections. City and designer staff are requested to attend the CR review comments meeting to determine which will be addressed in the contract documents. Deliverables will consist of tabulated review comments in spreadsheet format and review meeting notes. TASK 2 – CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES K/J will provide construction management and construction inspection services for the Wet Weather and Digester Improvements Project, as described below. Assumptions: The construction project is anticipated to begin in early 2018 and be completed in early to mid-2021. As requested we have assumed a 42-month construction duration for level of effort and budgeting purposes. Subtask 2.1 - Conduct a Pre-Construction Meeting K/J will plan, coordinate, conduct, and document the pre-construction meeting. This subtask will include: planning and coordinating the meeting date and time; developing the meeting agenda; defining project participant roles and responsibilities; identifying key issues; defining all project administration and reporting procedures including submittal and RFI processing, scheduling, EXHIBIT A change orders, progress payments, contractor responsibility for safety, traffic control, minimizing community impacts, establishing lines of communication and a dispute resolution ladder, discussing MOPO/system outage request procedure and reviewing SRF program compliance requirements. Assumptions, City and Designer Assistance Needed and Deliverables: Key City and designer staff will provide input to the agenda and attend the preconstruction meeting and review the meeting minutes. Deliverables will consist of the preconstruction meeting agenda and meeting minutes. Subtask 2.2 – Project Management and Construction Contract Administration Using partnering principles, K/J will provide leadership and serve as the focal point/primary point of contact between the Cities of South San Francisco and San Bruno, the contractor, the operations staff, the designer, the SWRCB and other regulatory/permitting agencies, the public and other project participants.  Prepare Construction Management Plan. At the start of the project K/J will prepare a Construction Management Plan. Based upon K/J’s CM Guidelines and augmented by applicable City construction policies, procedures and forms, the Plan will summarize project organization, lines of communication and authority, roles and responsibilities and procedures for contract administration, reporting, documentation and quality assurance to be used during construction. Assumptions, City and Designer Assistance Needed and Deliverables: City PM draft CM plan review comments. Deliverables will be draft and final CM Plans.  Conduct Risk Management Workshop. At the start of the project K/J will lead a risk management workshop. The primary product of the risk management workshop will be a risk register which will be used to track and mitigate or manage each risk. Assumptions, City and Designer Assistance Needed and Deliverables: A single eight-hour workshop will be conducted at the WQCP or K/J’s San Francisco office. Key City and designer staff are requested to attend. Deliverables will include risk workshop agenda and meeting minutes and risk register.  Safety. K/J will review the contractor’s Injury and Illness Prevention Plan (IIPP), monitor the contractor’s compliance with its safety program and will provide notification to the City of non-compliance. Kennedy/Jenks will also implement its own IIPP for its field staff. Both plans should include the WWTP’s safety manual as an appendix. Safety is a standing agenda item in weekly progress meetings. Assumptions, City and Designer Assistance Needed and Deliverables: Deliverables will consist of contractor IIPP review comments and K/J IIPP.  Prepare Daily Construction Progress and Monthly Status Reports. Daily Construction Progress Reports are discussed under Task 2.4 below. Each month to be submitted with the CM invoice, K/J’s Construction Manager will prepare a brief monthly construction progress report describing work performed that period including representative construction photos, upcoming work, problem areas and proposed EXHIBIT A resolutions, construction schedule and budget status, CM budget status, number of submittals and RFI’s processed that period, testing performed and SRF compliance. All reports will be provided to the City’s PM on a weekly and monthly basis. Assumptions, City and Designer Assistance Needed and Deliverables: Deliverables will consist of Daily Construction Progress Reports and digital photos and monthly progress Reports.  Conduct Weekly Progress Meetings. K/J’s CM will conduct weekly progress meetings and prepare corresponding agenda and meeting minutes. A standing agenda will be used addressing safety, three week look ahead schedule, environmental/permit/SWPPP compliance, traffic control/community relations, submittal and RFI status, extra work, quality control, plant O&M staff coordination/system outage requests/startup, materials testing/special inspection coordination and field problem resolution. Items will remain in the minutes until resolved. Assumptions, City and Designer Assistance Needed and Deliverables: City PM and plant operations staff representative will attend weekly meetings, if needed designer will attend to address submittal and other design related issues. Deliverables will consist of meeting agendas and minutes.  Schedule Review. K/J’s CM will perform a detailed review of the Contractor’s baseline schedule to review logic between activities, key activity durations, and verification of the critical path. This will include confirming that all specific construction sequencing and schedule constraints including in Section 1140, required milestones, as well as submittal, procurement, construction, shutdowns and tie-ins, testing and startup, and closeout activities are included for contract work. K/J’s CM will perform detailed reviews of each Contractor’s monthly schedule update to help ensure that actual work progress based on K/J inspector daily reports and the City’s records is properly incorporated. The impacts of change order work will be assessed through the use of fragnet schedule analyses. Assumptions, City and Designer Assistance Needed and Deliverables: Deliverables will consist of baseline and updated schedule review comments and fragnet analyses.  Progress Payment Applications and SRF Compliance. K/J’s CM and inspectors will review pay applications, negotiate acceptable quantities and percentage complete with the contractor’s Project Manager or superintendent and will then make recommendations to the City regarding payment. If applicable, any withholdings for stop payment notices and for deficient work will be deducted from the progress payment. K/J’s CM will confirm that the pay applications comply with SRF funding requirements. K/J’s CM will assist the City’s PM in preparing SRF payment reimbursement requests as well as submittal of quarterly status reports to the SWRCB. Receipt of acceptable updated schedules and updated record drawings will be prerequisites for progress payment approval. EXHIBIT A Assumptions, City and Designer Assistance Needed and Deliverables: Deliverables will consist of progress payment documents, certified payrolls and SRF payment reimbursement requests and quarterly status reports.  Requests for Information and Clarification and Design Clarifications. Using EADOC, K/J’s CM will work with the Design Engineer in addressing Requests for Information (RFIs) and Requests for Clarification (RFCs) received from the contractor as well as Design Clarifications issued by the designer. Assumptions, City and Designer Assistance Needed and Deliverables: Designer will provide dedicated engineering services during construction project engineer. Deliverables will consist of RFI/C and DC responses and logs.  Shop Drawing and Submittal Processing. Using EADOC, K/J’s CM will manage the shop drawing review process, and will work in conjunction with the Design Engineer and others to coordinate review and approval of shop drawings and submittals submitted by the Contractor in a timely manner. K/J’s CM will recommend use of pre- submittal meetings with the designer and contractor for selected key submittals. Assumptions, City and Designer Assistance Needed and Deliverables: Designer will provide dedicated engineering services during construction project engineer and will be available for pre-submittal meetings. Deliverables will consist of submittal and shop drawings review comments and logs.  Permit Compliance and Documentation. Our CM and inspectors will monitor the contractors work for compliance with the Mitigation Monitoring and Response Plan (MMRP), applicable permits and regulatory agency requirements and assist with permit-related documentation of the construction project. Permit and environmental compliance is a weekly meeting standing agenda item. Upon project completion agency signoffs will be obtained to help verify that all permit conditions have been complied with.  Document Management System. EADOC will be used to track and maintain files for all project correspondence, submittals, RFIs, RFCs, design clarifications, change orders, claims, progress payment requests, shop drawings, and other project documents. At the completion of the project, master hard and electronic copies (on flashdrive or CD- ROM) of all project files will be indexed and provided to the City. Assumptions, City and Designer Assistance Needed and Deliverables: City will pay for EADOC user/licensing fees as required for use by K/J CM staff. Designer will provide dedicated engineering services during construction project engineer. Deliverables will consist of submittal, RFI/C and correspondence logs and hard and electronic document files upon completion. EXHIBIT A Subtask 2.3 – Change Order Management and Claims Mitigation K/J’s CM will manage the specified extra work and change order process using K/J’s potential change order and change order system. Contractor extra work requests will be reviewed for entitlement. This subtask includes receiving and logging change order requests from the Contractor, as well as requesting and logging change order quotations as directed by the City and the designer. K/J’s CM will monitor extra work performed on time and materials (Force Account) as well as lump sum change orders and will coordinate with the Design Engineer for the preparation of any revised specifications and/or sketches needed to define the scope of the extra work. Change order work activities will undergo fragnet analysis to verify requested time extensions. Our CM will coordinate with the Design Engineer to prepare a detailed change order cost estimate with which to compare and negotiate the Contractor's cost quotation. K/J’s CM will meet regularly with the contractor’s PM to conduct negotiations. This process will result in a recommended acceptance or rejection of the change order to the City and, if accepted, preparation of the document for signature. K/J’s CM will confirm that change order documentation complies with the requirements of the SRF funding, as appropriate. Subtask 2.4 – Field Inspection Under the supervision of K/J’s CM K/J’s inspectors will provide field inspection services, including: • Daily observation and monitoring of construction operations, assumed to be 5 days a week, 8 hours a day, to assess compliance with Contract Documents, City standards, approved project submittals, and good construction practices. • Documenting construction progress daily and preparing daily field reports, complete with digital photos, and posting on EADOC Included in documentation will be information such as site conditions, quantities and types of materials installed, finish dimensions of installed facilities where appropriate, description of testing procedures and results, and other pertinent data related to the progress of the construction crews. • K/J’s CM and inspectors will coordinate materials testing and special inspection by K/J’s subconsultant for soil compaction, concrete strength, welding, painting/coating, adhesive anchor bolt and other materials testing and special inspection to monitor the work's contract compliance. • Monitoring piping installation and installation of bedding and backfill materials. • Completing logs of all compaction testing results will be maintained to ensure that all failing tests are covered by a passing retest, as well as documentation for future reference. • Monitoring structural concrete, mechanical equipment, and electrical equipment installation. Certificates of Proper Installation (COPI) will be required to be completed by the contractor, subcontractors and pertinent vendors/suppliers. • K/J’s CM will also coordinate with the Geotechnical Engineer of Record for periodic site visits including to help verify excavation shoring, dewatering and structure subgrade stability adequacy and to assess changed conditions if encountered. • All materials testing and special inspection and site visit reports will be provided to the City weekly. • Using EADOC, each K/J inspector will prepare daily construction progress reports to monitor compliance with the contract requirements and to document the work. Each report will include the following information: report number, date, weather, visitors to the EXHIBIT A site, work accomplished, contractor labor and equipment, testing performed, materials deliveries, system outages, extra work performed, permit/MMRP compliance and deficiencies noted. Dated digital photos will be taken of all work and representative annotated photos will be attached to each report. • The Contractor will maintain its own redline markups of the contract drawings showing all change order items and RFIs/RFCs, as well as other information regarding underground utilities and information useful to the City for future maintenance and construction. Each month before progress payment approval, K/J’s CM will review the Contractor's set of marked-up drawings to help ensure that they are complete, and will reconcile markups with the Contractor at the end of the project and provide them to the designer for drafting and delivery to the City. Assumptions, City and Designer Assistance Needed and Deliverables: Designer and Geotechnical Engineer of Record will make periodic site visits as necessary to assist with field problem resolution and assessment of field conditions. Deliverables will consist of daily construction reports, special inspection reports, site visit reports, COPI’s and materials and testing reports • Non-Compliance Correction. K/J’s CM team will use a non-complying work correction system to identify, track and correct deficient work. This begins with verbal notification to the contractor’s superintendent, then issuance of an advisory notice then issuance of a non-compliance notice. Non-complying work is also addressed in each progress meeting. Deliverables: Advisory notices, non-compliance notices and logs. • Testing, Startup and Training. K/J’s CM will lead the management of testing, startup and training of the new and rehabilitated facilities for compliance with the Contract Documents, NPDES discharge and BAAQMD permits and other applicable standards. Shortly after NTP our CM will work with the contractor, O&M staff, and designer to help develop the contractor’s startup and testing plan and training materials. K/J’s CM will maintain a warranty initiation log to help ensure that the warranty date coincides with beneficial and will coordinate input of new equipment data with plant PM and asset management systems. Assumptions, City and Designer Assistance Needed and Deliverables: Designer will provide startup and testing plan review comments and assist with startup and training activities. PLC/SCADA programming will be performed by others. Deliverables will consist of draft and final startup and testing plans, equipment vendor O&M manuals and warranties, system testing reports and training syllabus and materials. Subtask 2.5 – Substantial and Final Completion and Closeout Services K/J’s CM and inspectors will perform project substantial and final completion and closeout activities in accordance with the contract requirements. A final walk-through will be conducted with the City, the Design Engineer and the Contractor to develop a final punch list. Items EXHIBIT A remaining from preliminary punch lists and non-conforming work logs will be added. When the work is completed and all outstanding paperwork has been submitted (warranties, lien releases, record drawings, O&M manuals, permitting agency sign-offs, etc.) our CM will process the final payment request, final project status report and recommend project acceptance by the City. He will assist the City’s PM in filing the Notice of Completion with the County Recorder’s Office. All files including submittals, correspondence, photographs and other items will be provided to the City in hard and electronic format. K/J’s CM will also help confirm that all documentation has been submitted to meet the SRF funding program requirements. K/J’s CM will also help ensure that the warranty initiation date log and a need for warranty work system are in place for the City's use during the equipment specific warranty period. K/J’s CM and inspectors will reconcile record drawing markups with the Contractor and provide them to the designer for drafting and delivery to the City. Assumptions, City and Designer Assistance Needed and Deliverables: City and designer representatives will participate in the final walk-through. The designer will draft the final record drawings. Deliverables will consist of project files in hard and electronic formats, final punch list, warranties, lien releases, record drawing markups, O&M manuals and equipment warranties, permitting agency sign-offs, final progress payment, letter recommending filing notice of completion, SRF closeout documentation, warranty initiation date log and need for warranty work system. EXHIBIT A EXHIBIT B COMPENSATION SCHEDULE EXHIBIT A EXHIBIT A EXHIBIT C INSURANCE CERTIFICATES EXHIBIT A EXHIBIT D FORM 590 EXHIBIT A Form 590 C2 (REV. 2003)59003103 File this form with your withholding agent. (Please type or print) Withholding Exemption Certificate (This form can only be used to certify exemption from nonresident withholding under California R&TC Section 18662. This form cannot be used for exemption from wage withholding.) YEAR 20 CALIFORNIA FORM 590 Note: Failure to furnish your identification number will make this certificate void. I certify that for the reasons checked below, the entity or individual named on this form is exempt from the California income tax withholding requirement on payment(s) made to the entity or individual. Read the following carefully and check the box that applies to the vendor/payee: Individuals — Certification of Residency: I am a resident of California and I reside at the address shown above. If I become a nonresident at any time, I will promptly inform the withholding agent. See instructions for Form 590, General Information D, for the definition of a resident. Corporations: The above-named corporation has a permanent place of business in California at the address shown above or is qualified through the California Secretary of State to do business in California. The corporation will withhold on payments of California source income to nonresidents when required. If this corporation ceases to have a permanent place of business in California or ceases to be qualified to do business in California, I will promptly inform the withholding agent. See instructions for Form 590, General Information E, for the definition of permanent place of business. Partnerships: The above-named partnership has a permanent place of business in California at the address shown above or is registered with the California Secretary of State, and is subject to the laws of California. The partnership will file a California tax return and will withhold on foreign and domestic nonresident partners when required. If the partnership ceases to do any of the above, I will promptly inform the withholding agent. Note: For withholding purposes, a Limited Liability Partnership is treated like any other partnership. Limited Liability Companies (LLC): The above-named LLC has a permanent place of business in California at the address shown above or is registered with the California Secretary of State, and is subject to the laws of California. The LLC will file a California tax return and will withhold on foreign and domestic nonresident members when required. If the LLC ceases to do any of the above, I will promptly inform the withholding agent. Tax-Exempt Entities: The above-named entity is exempt from tax under California or federal law. The tax-exempt entity will withhold on payments of California source income to nonresidents when required. If this entity ceases to be exempt from tax, I will promptly inform the withholding agent. Insurance Companies, IRAs, or Qualified Pension/Profit Sharing Plans: The above-named entity is an insurance company, IRA, or a federally qualified pension or profit-sharing plan. California Irrevocable Trusts: At least one trustee of the above-named irrevocable trust is a California resident. The trust will file a California fiduciary tax return and will withhold on foreign and domestic nonresident beneficiaries when required. If the trustee becomes a nonresident at any time, I will promptly inform the withholding agent. Estates — Certification of Residency of Deceased Person: I am the executor of the above-named person’s estate. The decedent was a California resident at the time of death. The estate will file a California fiduciary tax return and will withhold on foreign and domestic nonresident beneficiaries when required. CERTIFICATE: Please complete and sign below. Under penalties of perjury, I hereby certify that the information provided herein is, to the best of my knowledge, true and correct. If conditions change, I will promptly inform the withholding agent. Vendor/Payee’s name and title (type or print) _____________________________________________________________________ Vendor/Payee’s signature ________________________________________________________Date _____________________ For Privacy Act Notice, get form FTB 1131 (individuals only). Withholding agent’s name Vendor/Payee’s nameVendor/Payee’s Social security number SOS no. California corp. no.FEIN Vendor/Payee’s address (number and street)APT no.Private Mailbox no.Vendor/Payee’s daytime telephone no. () City State ZIP Code 17 Kennedy/JenksConsultants 303SecondStreet,Suite300S SanFrancisco CA 94107 ✔ EXHIBIT A