HomeMy WebLinkAboutReso 31-2024 (24-05)
Consulting Services Agreement between [Rev:03.24.2022] DATE
City of South San Francisco and _______________ Page 1 of 29
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND
NAME OF Consultants (for use on Local projects)
THIS AGREEMENT for consulting services (“Agreement”) is made by and between the City of South
San Francisco (“City”) and _______________ (“Consultant”) (together sometimes referred to as the “Parties”)
as of _______________ (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 dated _______________ 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 _______________, the date of completion specified in Exhibit A, 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 ____________________.
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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 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. 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 number and
project title. Invoices shall be mailed to the City’s Contract Administrator at the following
address:
___________________________
___________________________
___________________________
___________________________
2.3 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
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.
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2.4 Final Payment. Final invoice must contain the final cost and all credits due to the City,
including any equipment purchased under Section 10.21. The final invoice should be
submitted within sixty (60) calendar days after completion of Consultant’s work.
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
amendment pursuant to Section 8.3.
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. Salary increases will be reimbursable if the new salary is within the salary
range identified in the approved Cost Proposal and is approved by the City’s Contract
Administrator. For personnel subject to prevailing wage rates as described in the California
Labor Code, all salary increases, which are the direct result of changes in the prevailing
wage rates are reimbursable.
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
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authorization from the Contract Administrator. No payment will be made prior to approval of
any work, nor for any work performed prior to approval of this Agreement.
2.10 Prevailing Wage. No Consultant or Subconsultant may be awarded an Agreement
containing public work elements unless registered with the Department of Industrial
Relations (DIR) pursuant to Labor Code Section 1725.5. Registration with DIR must be
maintained throughout the entire term of this Agreement, including any subsequent
amendments. The Consultant shall comply with all of the applicable provisions of the
California Labor Code requiring the payment of prevailing wages. The General Prevailing
Wage Rate Determinations applicable to work under this Agreement are available and on
file with the Department of Transportation's Regional/District Labor Compliance Officer.
These wage rates are made a specific part of this Agreement by reference pursuant to Labor
Code Section 1773.2 and will be applicable to work performed at a construction project site.
Prevailing wages will be applicable to all inspection work performed at City construction
sites, at City facilities and at off-site locations that are set up by the construction contractor
or one of its subcontractors solely and specifically to serve City projects. Prevailing wage
requirements do not apply to inspection work performed at the facilities of vendors and
commercial materials suppliers that provide goods and services to the general public.
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.
2.10.1 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.
Consulting Services Agreement between [Rev:03.24.2022] DATE
City of South San Francisco and _______________ Page 5 of 29
2.10.2 Payroll Records. Each Consultant and subcontractor shall keep an accurate
payroll records and supporting documents as mandated by Labor Code Section 1776 and
as defined in 8 CCR Section 16000, showing the name, address, social security number,
work classification, straight time and overtime hours worked each day and week, and the
actual per diem wages paid to each journeyman, apprentice, worker, or other employee
employed by the Consultant or Subconsultant in connection with the public work. Such
records shall be certified and submitted weekly as required by Labor Code Section 1776.
Each payroll record shall contain or be verified by a written declaration that it is made under
penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct.
b. The employer has complied with the requirements of Labor Code Sections
1771, 1811, and 1815 for any work performed by his or her employees on
the public works project.
The payroll records shall be certified as correct by the Consultant under penalty of perjury.
The payroll records and all supporting documents shall be made available for inspection and
copying by City representative’s at all reasonable hours at the principal office of the
Consultant . The Consultant shall provide copies of certified payrolls or permit inspection of
its records as follows:
1. A certified copy of an employee's payroll record shall be made available for
inspection or furnished to the employee or the employee's authorized
representative on request.
2. A certified copy of all payroll records enumerated in paragraph (1) above,
shall be made available for inspection or furnished upon request to a
representative of City, the Division of Labor Standards Enforcement and
the Division of Apprenticeship Standards of the Department of Industrial
Relations. Certified payrolls submitted to City, the Division of Labor
Standards Enforcement and the Division of Apprenticeship Standards shall
not be altered or obliterated by the Consultant .
3. The public shall not be given access to certified payroll records by the
Consultant. The Consultant is required to forward any requests for certified
payrolls to the City Contract Administrator by both email and regular mail
on the business day following receipt of the request.
. Each Consultant shall submit a certified copy of the records enumerated in paragraph (1)
above, to the entity that requested the records within ten (10) calendar days after receipt of
a written request.
Consulting Services Agreement between [Rev:03.24.2022] DATE
City of South San Francisco and _______________ Page 6 of 29
Any copy of records made available for inspection as copies and furnished upon request to
the public or any public agency by City shall be marked or obliterated in such a manner as
to prevent disclosure of each individual's name, address, and social security number. The
name and address of the Consultant or Subconsultant performing the work shall not be
marked or obliterated.
The Consultant shall inform City of the location of the records enumerated under paragraph
(1) above, including the street address, city and county, and shall, within five (5) working
days, provide a notice of a change of location and address.
The Consultant or Subconsultant shall have ten (10) calendar days in which to comply
subsequent to receipt of written notice requesting the records enumerated in paragraph (1)
above. In the event the Consultant or Subconsultant fails to comply within the ten (10) day
period, he or she shall, as a penalty to City, forfeit one hundred dollars ($100) for each
calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such
penalties shall be withheld by City from payments then due. Consultant is not subject to a
penalty assessment pursuant to this section due to the failure of a Subconsultant to comply
with this section.
When prevailing wage rates apply, the Consultant is responsible for verifying compliance
with certified payroll requirements. Invoice payment will not be made until the invoice is
approved by the City Contract Administrator.
2.11.3 Penalty. The Consultant and any of its Subconsultants shall comply with Labor
Code Sections 1774 and 1775. Pursuant to Labor Code Section 1775, the Consultant and
any Subconsultant shall forfeit to the City a penalty of not more than two hundred dollars
($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing
rates as determined by the Director of DIR for the work or craft in which the worker is
employed for any public work done under the Agreement by the Consultant or by its
Subconsultant in violation of the requirements of the Labor Code and in particular, Labor
Code Sections 1770 to 1780, inclusive.
The amount of this forfeiture shall be determined by the Labor Commissioner and shall be
based on consideration of mistake, inadvertence, or neglect of the Consultant or
Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of
the Consultant or Subconsultant in meeting their respective prevailing wage obligations, or
the willful failure by the Consultant or Subconsultant to pay the correct rates of prevailing
wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing
wages is not excusable if the Consultant or Subconsultant had knowledge of the obligations
under the Labor Code. The Consultant is responsible for paying the appropriate rate,
including any escalations that take place during the term of the Agreement.
In addition to the penalty and pursuant to Labor Code Section 1775, the difference between
the prevailing wage rates and the amount paid to each worker for each calendar day or
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City of South San Francisco and _______________ Page 7 of 29
portion thereof for which each worker was paid less than the prevailing wage rate shall be
paid to each worker by the Consultant or Subconsultant.
If a worker employed by a Subconsultant on a public works project is not paid the general
prevailing per diem wages by the Subconsultant, the prime Consultant of the project is not
liable for the penalties described above unless the prime Consultant had knowledge of that
failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or
unless the prime Consultant fails to comply with all of the following requirements:
a. The Agreement executed between the Consultant and the Subconsultant
for the performance of work on public works projects shall include a copy of
the requirements in Labor Code Sections 1771, 1775, 1776, 1777.5, 1813,
and 1815.
b. The Consultant shall monitor the payment of the specified general
prevailing rate of per diem wages by the Subconsultant to the employees
by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified
prevailing rate of wages to the Subconsultant’s workers, the Consultant
shall diligently take corrective action to halt or rectify the failure, including
but not limited to, retaining sufficient funds due the Subconsultant for work
performed on the public works project.
d. Prior to making final payment to the Subconsultant for work performed on
the public works project, the Consultant shall obtain an affidavit signed
under penalty of perjury from the Subconsultant that the Subconsultant had
paid the specified general prevailing rate of per diem wages to the
Subconsultant’s employees on the public works project and any amounts
due pursuant to Labor Code §1813.
Pursuant to Labor Code Section 1775, City shall notify the Consultant on a public works
project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has
failed to pay workers the general prevailing rate of per diem wages.
If City determines that employees of a Subconsultant were not paid the general prevailing
rate of per diem wages and if City did not retain sufficient money under the Agreement to
pay those employees the balance of wages owed under the general prevailing rate of per
diem wages, the Consultant shall withhold an amount of moneys due the Subconsultant
sufficient to pay those employees the general prevailing rate of per diem wages if requested
by City.
2.11.4 Hours of Labor. Eight (8) hours labor constitutes a legal day's work. The
Consultant shall forfeit, as a penalty to the City, twenty-five dollars ($25) for each worker
employed in the execution of the Agreement by the Consultant or any of its Subconsultants
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City of South San Francisco and _______________ Page 8 of 29
for each calendar day during which such worker is required or permitted to work more than
eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in
violation of the provisions of the Labor Code, and in particular sections 1810 to 1815 thereof,
inclusive, except that work performed by employees in excess of eight (8) hours per day,
and forty (40) hours during any one week, shall be permitted upon compensation for all hours
worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less
than one and one half (1.5) times the basic rate of pay, as provided in section 1815.
2.11.5 Employment of Apprentices. Where either the prime Agreement or the
subagreement exceeds thirty thousand dollars ($30,000), the Consultant and any
subconsultants under him or her shall comply with all applicable requirements of Labor Code
Sections 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
Consultants and subconsultants are required to comply with all Labor Code requirements
regarding the employment of apprentices, including mandatory ratios of journey level to
apprentice workers. The Consultant is responsible for all subconsultants’ compliance with
these requirements. Penalties are specified in Labor Code Section 1777.7.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost
and expense, provide all facilities and equipment that may be necessary to perform the services required by
this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section,
and only under the terms and conditions set forth herein.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be
reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and
the information in possession of the City. The location, quantity, and time of furnishing those facilities shall
be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve
incurring any direct expense, including but not limited to computer, long-distance telephone or other
communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and
amounts of insurance listed below against claims for injuries to persons or damages to property that may
arise from or in connection with the performance of the work hereunder by the Consultant and its agents,
representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall
provide 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’
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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 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.
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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.
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
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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
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.
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4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
4.4.7 Wasting Policy. No insurance policy required by Section 4 shall include a “wasting”
policy limit.
4.4.8 Variation. The City may approve a variation in the foregoing insurance
requirements, upon a determination that the coverage, scope, limits, and forms of
such insurance are either not commercially available, or that the City’s interests are
otherwise fully protected.
4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or
maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for
Consultant’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
b. Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder, or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof; and/or
c. Terminate this Agreement.
Section 5. INDEMNIFICATION AND Consultant’s RESPONSIBILITIES. To the fullest extent
permitted by law, Consultant shall 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.
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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.
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
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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 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.
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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 Agreement or otherwise, shall create any
contractual relationship 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 Scope of Work.
c. Consultant shall pay its subconsultants within fifteen (15) calendar days
from receipt of each payment made to Consultant by City.
d. Any subcontract entered into as a result of this contract shall contain all the
provisions in this contract to be applicable to subconsultants unless otherwise
noted.
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e. Any substitution of subconsultant(s) must be approved in writing by City’s
Contract Administrator in advance of assigning work to the substitute
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;
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
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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, Independent CPA Audited Indirect Cost
Rate workpapers and other evidence pertaining to the performance of the
Agreement, including but not limited to, the costs of administering the Agreement.
All parties, including the Consultant’s Independent CPA, shall make such 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, Caltrans 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
if requested 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 Agreement 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.
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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.
d. Consultant and subconsultant Agreements, including cost proposals and Indirect
Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to,
an Agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit
work paper review. If selected for audit or review, the Agreement , cost proposal
and ICR and related work papers, if applicable, will be reviewed to verify
compliance with 48 CFR Part 31 and other related laws and regulations. In the
instances of a CPA ICR audit work paper review it is Consultant’s responsibility
to ensure federal, City, or local government officials are allowed full access to the
CPA’s work papers including making copies as necessary. The Agreement , cost
proposal, and ICR shall be adjusted by Consultant and approved by City Contract
Administrator to conform to the audit or review recommendations. Consultant
agrees that individual terms of costs identified in the audit report shall be
incorporated into the Agreement by this reference if directed by City at its sole
discretion. Refusal by Consultant to incorporate audit or review
recommendations, or to ensure that the federal, City or local governments have
access to CPA work papers, will be considered a breach of Agreement terms and
cause for termination of the Agreement and disallowance of prior reimbursed
costs.
e. Consultant’s cost proposal may be subject to a CPA ICR Audit Work Paper
Review and/or audit by Caltrans Audits and Investigation (A&I). Caltrans A&I, at
its sole discretion, may review and/or audit and approve the CPA ICR
documentation. The compensation schedule shall be adjusted by the Consultant
and approved by the City Contract Administrator to conform to the Work Paper
Review recommendations included in the management letter or audit
recommendations included in the audit report. Refusal by the Consultant to
incorporate the Work Paper Review recommendations included in the
management letter or audit recommendations included in the audit report will be
considered a breach of the Agreement terms and cause for termination of the
Agreement and disallowance of prior reimbursed costs.
1. During Caltrans A&I’s review of the ICR audit work papers created by the
Consultant’s independent CPA, Caltrans A&I will work with the CPA and/or
Consultant toward a resolution of issues that arise during the review. Each party
agrees to use its best efforts to resolve any audit disputes in a timely manner. If
Caltrans A&I identifies significant issues during the review and is unable to issue
a cognizant approval letter, City will reimburse the Consultant at an accepted ICR
until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31;
GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting
Standards), if applicable; in accordance with procedures and guidelines of the
American Association of State Highways and Transportation Officials (AASHTO)
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Audit Guide; and other applicable procedures and guidelines}is received and
approved by A&I.
Accepted rates will be as follows:
i. If the proposed rate is less than one hundred fifty percent
(150%) - the accepted rate reimbursed will be ninety percent
(90%) of the proposed rate.
ii. If the proposed rate is between one hundred fifty percent
(150%) and two hundred percent (200%) - the accepted rate
will be eighty-five percent (85%) of the proposed rate.
iii. If the proposed rate is greater than two hundred percent
(200%) - the accepted rate will be seventy-five percent (75%)
of the proposed rate.
2. If Caltrans A&I is unable to issue a cognizant letter per paragraph E.1.
above, Caltrans A&I may require Consultant to submit a revised independent
CPA-audited ICR and audit report within three (3) months of the effective date of
the management letter. Caltrans A&I will then have up to six (6) months to review
the Consultant’s and/or the independent CPA’s revisions.
3. If the Consultant fails to comply with the provisions of this paragraph E, or
if Caltrans A&I is still unable to issue a cognizant approval letter after the revised
independent CPA audited ICR is submitted, overhead cost reimbursement will be
limited to the accepted ICR that was established upon initial rejection of the ICR
and set forth in paragraph E.1. above for all rendered services. In this event, this
accepted ICR will become the actual and final ICR for reimbursement purposes
under this Agreement.
4. Consultant may submit to City final invoice only when all of the following
items have occurred: (1) Caltrans A&I accepts or adjusts the original or revised
independent CPA audited ICR; (2) all work under this Agreement has been
completed to the satisfaction of City; and, (3) Caltrans A&I has issued its final ICR
review letter. The Consultant must submit its final invoice to City no later than sixty
(60) calendar days after occurrence of the last of these items. The accepted ICR
will apply to this Agreement and all other agreements executed between City and
the Consultant, either as a prime or subconsultant, with the same fiscal period
ICR.
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
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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.
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.
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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 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.
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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 _________________
("Contract Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
10.10 Notices. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when
received if personally delivered; (ii) when received if transmitted by telecopy, if received
during normal business hours on a business day (or if not, the next business day after
delivery) provided that such facsimile is legible and that at the time such facsimile is sent
the sending Party receives written confirmation of receipt; (iii) if sent for next day delivery
to a domestic address by recognized overnight delivery service (e.g., Federal Express);
and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In
each case notice shall be sent to the respective Parties as follows:
Consultant
___________________________
___________________________
___________________________
___________________________
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
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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.
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 not otherwise identified in the Scope of Work.
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 Institution of
Higher Education, the Cost Principles for Title 2 CFR Part 200, Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
10.17 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.
10.18 Non-Discrimination Clause 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,
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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 disability, mental
disability, medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or military and veteran status.
Consultant and subconsultants shall insure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination and
harassment.
c. Consultants and subconsultants shall comply with the provisions of the Fair
Employment and Housing Act (Gov. Code §12990 et seq.) and the applicable regulations
promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-
11139.5, and the regulations or standards adopted by 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 §§8100-8504, are
incorporated into this Agreement by reference and made a part hereof as if set forth in
full.
d. Consultant shall permit access by representatives of the Department of Fair
Employment and Housing and the City upon reasonable notice at any time during the
normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of
its books, records, accounts, and all other sources of information and its facilities as said
Department or 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,
Consulting Services Agreement between [Rev:03.24.2022] DATE
City of South San Francisco and _______________ Page 25 of 29
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 employment
practices when the Agreement covers a program whose goal is employment.
10.19 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.
10.20 Disadvantaged Business Enterprises (DBE) Participation.
a. This Agreement is subject to 49 CFR, Part 26 entitled “Participation by
Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs”. Consultants who obtain DBE participation on this Agreement will
assist Caltrans in meeting its federally mandated statewide overall DBE goal.
b. The goal for DBE participation for this Agreement is 11%. Participation by DBE
consultant or subconsultants shall be in accordance with information contained in the
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City of South San Francisco and _______________ Page 26 of 29
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 Agreements 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 Agreement. 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 Agreement, which may result in the termination of this Agreement or such
other remedy as City deems appropriate.
d. Any subcontract entered into as a result of this Agreement 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 Agreement and is carrying out its responsibilities by actually
performing, managing, and supervising the work involved. To perform a CUF, the DBE
must also be responsible with respect to materials and supplies used on the Agreement,
for negotiating price, determining quality and quantity, ordering the material, and installing
(where applicable) and paying for the material itself. To determine whether a DBE is
performing a CUF, evaluate the amount of work subcontracted, industry practices,
whether the amount the firm is to be paid under the Agreement is commensurate with the
work it is actually performing, and other relevant factors.
g. A DBE does not perform a CUF if its role is limited to that of an extra participant in
a transaction, Agreement or project through which funds are passed in order to obtain
the appearance of DBE participation. In determining whether a DBE is such an extra
participant, examine similar transactions, particularly those in which DBEs do not
participate.
h. If a DBE does not perform or exercise responsibility for at least thirty percent (30%)
of the total cost of its Agreement with its own work force or the DBE subcontracts a
greater portion of the work of the Agreement than would be expected on the basis of
normal industry practice for the type of work involved, it will be presumed that it is not
performing a CUF.
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City of South San Francisco and _______________ Page 27 of 29
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 Agreement, 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 Agreement, the decertified
subconsultant shall notify Consultant in writing with the date of decertification. If a
subconsultant becomes a certified DBE during the life of the 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.
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:
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
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City of South San Francisco and _______________ Page 28 of 29
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.
10.22 Prohibitions of Expending Local Agency, State, or Federal Funds for Lobbying.
10.22.1 The Consultant certifies, to the best of his or her knowledge and belief, that:
a. No State, Federal, or City appropriated funds have been paid or will be
paid, by or on behalf of the Consultant, to any person for influencing or
attempting to influence an officer or employee of any local, State, or
Federal agency, a Member of the State Legislature or United States
Congress, an officer or employee of the Legislature or Congress, or any
employee of a Member of the Legislature or Congress in connection with
the awarding or making of this Agreement, or with the extension,
continuation, renewal, amendment, or modification of this Agreement.
b. If any funds other than Federal appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer
or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a member of Congress in
connection with this Agreement, the Consultant shall complete and submit
Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance
with its instructions.
10.22.2 This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by 31 U.S.C. §1352. Any
person who fails to file the required certification shall be subject to a civil penalty of not
less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars
($100,000) for each such failure.
10.22.3 The Consultant also agrees by signing this document that he or she shall require
that the language of this certification be included in all lower tier subagreements, which
exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall
certify and disclose accordingly.
Consulting Services Agreement between [Rev:03.24.2022] DATE
City of South San Francisco and _______________ Page 29 of 29
The Parties have executed this Agreement as of the Effective Date.
CITY OF SOUTH SAN FRANCISCO Consultants
____________________________ _____________________________________
City Manager NAME:
TITLE:
Attest:
_____________________________
City Clerk
Approved as to Form:
____________________________
City Attorney
3453369.3
EXHIBIT A
SCOPE OF WORK
EXHIBIT B
COST PROPOSAL
EXHIBIT C
INSURANCE CERTIFICATES
[OPTIONAL] EXHIBIT D
FORM 590