HomeMy WebLinkAboutReso 84-2023 (23-162)
Consulting Services Agreement between [Rev:03.24.2022] May 2, 2023
City of South San Francisco and Lotus Water Page 1 of 22
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND
LOTUS WATER
THIS AGREEMENT for consulting services (“Agreement”) is made by and between the City of
South San Francisco (“City”) and Lotus Water (“Consultant”) (together sometimes referred to as the
“Parties”) as of May 2, 2023 (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 as Exhibit A, attached hereto
and incorporated herein, at the time and place and in the manner specified therein. The approved
Consultant’s Cost Proposal is attached as Exhibit B and incorporated herein. In the event of a conflict in
or inconsistency between the terms of this Agreement and Exhibit A, or Exhibit B, the Agreement shall
prevail.
1.1 Performance Period. The term of this Agreement shall begin on the Effective Date and
shall end on June 30, 2024 the date of completion, 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. Any recommendation for an
agreement award is not binding on the City until the agreement is fully executed and
approved by the City. 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 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. The method of payment for this Agreement will be based on actual
costs. The total amount payable by the City shall not exceed $2,302,363.
EXHIBIT A - CONSULTING SERVICES AGREEMENT DRAFT
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The payments specified herein 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, 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 Actual Costs. The City will reimburse Consultant for actual costs (including labor costs,
employee benefits, travel, equipment rental costs, overhead and other direct costs)
incurred by Consultant in performance of the work. Consultant will not be reimbursed for
actual costs that exceed the estimated wage rates, employee benefits, travel, equipment
rental, overhead, and other estimated costs set forth in the approved Consultant’s Cost
Proposal (Exhibit B), unless additional reimbursement is provided for by Agreement
amendment pursuant to Section 8.3. In no event, will Consultant be reimbursed for
overhead costs at a rate that exceeds the City’s approved overhead rate set forth in the
Cost Proposal (Exhibit B). Reimbursement for transportation and subsistence costs shall
not exceed the rates specified in the approved Cost Proposal (Exhibit B). In the event, that
the City determines that a change to the work from that specified in the Cost Proposal
(Exhibit B) and Agreement is required, the Agreement time or actual costs reimbursable by
the City shall be adjusted by Agreement amendment, pursuant to Section 8.3 to
accommodate the changed work. When milestone cost estimates are included in the
approved Cost Proposal (Exhibit B), Consultant shall obtain prior written approval for a
revised milestone cost estimate from the Contract Administrator before exceeding such
cost estimate.
2.2 Invoices. Invoices shall be submitted, in duplicate, no later than thirty (30) calendar days
after the performance of work for which Consultant is billing. Consultant shall submit
invoices, not more often than once per month during the term of this Agreement, based on
the costs for services performed and incurred prior to the invoice date. Invoices shall
detail the work performed on each milestone and each project as applicable. Invoices shall
follow the format stipulated for the Cost Proposal (Exhibit B) and shall reference this
Agreement, SSF CIP project number and project title. Invoices shall be mailed to the
City’s Contract Administrator at the following address:
Department of Public Works – Engineering Division
City of South San Francisco
315 Maple Ave
South San Francisco, CA 94080
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2.3 Monthly Payment. Consultant will be reimbursed promptly according to California
Regulations upon receipt by the City’s Contract Administrator of itemized invoices in
duplicate. City shall make monthly payments, based on invoices received, for services
satisfactorily performed, and for authorized reimbursable costs incurred. Progress
payments will be made monthly in arrears based on services provided and allowable
incurred costs. A pro rata portion of Consultant’s fixed fee will be included in the monthly
progress payments. If Consultant fails to submit the required deliverable items according
to the schedule set forth in Scope of Work (Exhibit A), the City shall have the right to delay
payment or terminate this Agreement.
2.4 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.
2.5 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.
2.6 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.
2.7 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 ____. 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
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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
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.
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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 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
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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
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
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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.
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 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 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 all policies stating that coverage is
primary insurance with respect to the City and its officers, officials, employees and
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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:
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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 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
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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 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.
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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 not
less than thirty (30) calendar days written notification to Consultant (delivered by certified
mail, return receipt requested). Upon termination, City shall be entitled to all work,
including but not limited to, reports, investigations, appraisals, inventories, studies,
analyses, drawings and data estimates performed to that date, whether completed or not,
and in accordance with Section 9.1.
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 as provided for in this Agreement; City,
however, may condition payment of such compensation upon Consultant delivering to City
all materials described in Section 9.1.
City may temporarily suspend this Agreement, at no additional cost to City, provided that
Consultant is given written notice (delivered by certified mail, return receipt requested) of
temporary suspension. If City gives such notice of temporary suspension, Consultant shall
immediately suspend its activities under this Agreement. A temporary suspension may be
issued concurrent with the notice of termination provided for in this section.
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.
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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
independent obligation from 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.
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. Notwithstanding any provisions of this Agreement,
Consultant shall not be relieved of liability to City for damages sustained by City by virtue
of any breach of this Agreement by Consultant, and City may withhold any payments due
to Consultant until such time as the exact amount of damages, if any, due City from
Consultant is determined. 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;
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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.
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
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pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall
maintain and make available for inspection all books, documents, papers,
accounting records, Independent CPA Audited Indirect Cost Rate workpapers and
other evidence pertaining to the performance of the contract, including but not
limited to, the costs of administering the contract. All parties, including the
Consultant’s Independent CPA, shall make such materials available at their
respective offices at all reasonable times during the term of the Agreement and for
three years from the date of final payment under the Agreement. The state, State
Auditor, City, FHWA, or any duly authorized representative of the Federal
Government having jurisdiction under Federal laws or regulations (including the
basis of Federal funding in whole or in part) shall have access to any books,
records, and documents of Consultant, Subconsultants, and the Consultant;s
Independent certified public accountants (CPA) work papers that are pertinent to
the Agreement and indirect cost rates (ICR) for audit, examinations, workpaper
review, excerpts, and transactions, and copies thereof shall be furnished without
limitation. 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
Finance Director.
b. Not later than 30 days after issuance of the final audit report, Consultant may
request a review by City’s Finance Director of unresolved audit issues. The
request for review will be submitted in writing.
c. Neither the pendency of a dispute nor its consideration by City will excuse
Consultant from full and timely performance, in accordance with the terms of this
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
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City of South San Francisco and Lotus Water Page 15 of 22
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.
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. During the term of this Agreement, the Consultant shall disclose any
financial, business, or other relationship with City that may have an impact upon the
outcome of this Agreement or any ensuing City construction project. The Consultant shall
also list current clients who may have a financial interest in the outcome of this Agreement
or any ensuing City construction project which will follow. Consultant certifies that it has
disclosed to City any actual, apparent, or potential conflicts of interest that may exist
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relative to the services to be provided pursuant to this Agreement. Consultant agrees to
advise City of any actual, apparent or potential conflicts of interest that may develop
subsequent to the date of execution of this Agreement. Consultant further agrees to
complete any statements of economic interest if required by either City ordinance or State
law. The Consultant hereby certifies that it does not now have nor shall it acquire any
financial or business interest that would conflict with the performance of services under this
Agreement. The Consultant hereby certifies that the Consultant or subconsultant and any
firm affiliated with the Consultant or subconsultant that bids on any construction contract or
on any Agreement to provide construction inspection for any construction project resulting
from this Agreement, has established necessary controls to ensure a conflict of interest
does not exist. An affiliated firm is one, which is subject to the control of the same persons,
through joint ownership or otherwise.
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 Jason Hallare, Senior
Civil 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
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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: Robert Dusenbury, PE, Principal-in-Charge
Lotus Water
660 Mission Street, Suite 200
San Francisco, CA 94105
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.
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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.
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 2 CFR,
Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards.
c. Any costs for which payment has been made to Consultant that are determined by
subsequent audit to be unallowable under 49 CFR, Part 31 or 2 CFR Part 200 are subject
to repayment by Consultant to City.
d. When a Consultant or Subconsultant is a Non-Profit Organization or an Institute of
Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply..
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
Agreement was not obtained or secured through rebates, kickbacks or other unlawful
consideration, either promised or paid to any City employee. For breach or violation of this
warranty, City shall have the right in its discretion; to terminate the Agreement without
liability; to pay only for the value of the work actually performed; or to deduct from the total
compensation stated in this Agreement; or otherwise recover the full amount of such
rebate, kickback or other unlawful consideration.
10.19 Non-Discrimination and 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 Agreement, Consultant and its subconsultants shall not
deny the Agreement’s benefits to any person on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental disability, medical condition,
genetic information, marital status, sex, gender, gender identity, gender expression,
age, sexual orientation, or military and veteran status, nor shall they unlawfully
discriminate, harass, or allow harassment against any employee or applicant for
employment because of race, religious creed, color, national origin, ancestry, physical
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disability, mental disability, medical condition, genetic information, marital status, sex,
gender, gender identity, gender expression, age, sexual orientation, or military and
veteran statusshall Consultant and subconsultants shall insure that the evaluation and
treatment of their employees and applicants for employment are free from such
discrimination and harassment.
c. 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 (2 CCR §11000 et seqCalifornia Code of
Regulations, Title 2, Section 7285 et seq.), the provisions of Gov. Code §§11135-
11139.5, and the regulations or standards adopted by the City to implement such
article. The applicable regulations of the Fair Employment and Housing Commission
implementing Government Code §12990 (a-f), set forth 2 CCR §§8100-8504set forth in
Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated
into this Contract Agreement by reference and made a part hereof as if set forth in full.
d. Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the City upon reasonable notice at any time during the
normal business hours, but in no case less than twenty-four (24) hours’ notice, to such
of its books, records, accounts, and all other sources of information and its facilities as
said Department or the City shall require to ascertain compliance with this clause.
e. Consultant and its subconsultants shall give written notice of their obligations under
this clause to labor organizations with which they have a collective bargaining or other
Agreement.
f. Consultant shall include the nondiscrimination and compliance provisions of this clause
in all subcontracts to perform work under this Agreement.
g. The Consultant 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.
h. 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
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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 or any person
associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or
determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible
by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
4. Has not been indicted, convicted, or had a civil judgment rendered against it by a
court of competent jurisdiction in any matter involving fraud or official misconduct
within the past three (3) years.
b. Any exceptions to this certification must be disclosed to City. Exceptions will not
necessarily result in denial of recommendation for award, but will be considered in
determining Consultant responsibility. Disclosures must indicate to whom exceptions
apply, initiating agency, and dates of action.
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 Equipment Purchase and Other Capital Expenditures.
a. Prior authorization in writing by City’s Contract Administrator shall be required before
Consultant enters into any unbudgeted purchase order, or subcontract exceeding five
thousand dollars ($5,000) for supplies, equipment, or Consultant services. Consultant
shall provide an evaluation of the necessity or desirability of incurring such costs.
b. For purchase of any item, service, or consulting work not covered in Consultant’s
approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior
authorization by City’s Contract Administrator, three competitive quotations must be
submitted with the request, or the absence of bidding must be adequately justified.
c. Any equipment purchased with funds provided under the terms of this Agreement is
subject to the following:
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1. Consultant shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years
and an acquisition cost of five thousand dollars ($5,000) or more. If the
purchased equipment needs replacement and is sold or traded in, City shall
receive a proper refund or credit at the conclusion of the Agreement, or if the
Agreement is terminated, Consultant may either keep the equipment and credit
City in an amount equal to its fair market value, or sell such equipment at the best
price obtainable at a public or private sale, in accordance with established City
procedures; and credit City in an amount equal to the sales price. If Consultant
elects to keep the equipment, fair market value shall be determined at
Consultant’s expense, on the basis of a competent independent appraisal of such
equipment. Appraisals shall be obtained from an appraiser mutually agreeable to
by City and Consultant, if it is determined to sell the equipment, the terms and
conditions of such sale must be approved in advance by City.
2. Regulation 2 CFR Part 200 requires a credit to Federal funds when participating
equipment with a fair market value greater than five thousand dollars ($5,000) is
credited to the project.
The Parties have executed this Agreement as of the Effective Date.
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CITY OF SOUTH SAN FRANCISCO LOTUS WATER
____________________________ _____________________________________
City Manager NAME:
TITLE:
Attest:
_____________________________
City Clerk
Approved as to Form:
____________________________
City Attorney
2729962.1
EXHIBIT A
SCOPE OF WORK
EXHIBIT B
COST PROPOSAL
EXHIBIT C
INSURANCE CERTIFICATES
EXHIBIT D
FORM 590