On-Call Geotechnical & Engineering Services

1 REQUEST FOR QUALIFICATIONS FOR ON-CALL GEOTECHNICAL AND ENGINEERING SERVICES Qualifications Due: Thursday, April 13, 2023 at 1:00 p.m. Public Works Department 1201 W. 4th Street Antioch, CA 94509 (925) 779-4129 ANTIQCH CALIFORNIA 2 INTRODUCTION & OVERVIEW The City of Antioch is requesting qualifications from qualified consulting firms desiring to provide on-call engineering services for the City of Antioch. The City intends to develop a Shortlist of Consultant Firms that will be called upon to provide in-house services, or the capacity to sublet, geotechnical engineering, QSP/QSD services, land surveying, and structural design. The consultant must be knowledgeable and experienced in the preparation of construction plans and specifications and have a history of producing plans that are successfully implemented. Consultants who plan to sublet any of the required services of a project contained in this RFQ shall include the name of the company(ies) and description of project service

that may be potentially sublet. Tasks to be performed as part of this contract have the potential to cover a wide range of services that include but are not limited to construction project design, geotechnical and environmental assessment, as well as general civil engineering for grant work and hazard mitigation projects; however, community outreach and project management assistance may also be requested. The Consultant contract administrator shall be a Registered Professional Engineer licensed in the State of California in good standing with the California State Board for Professional Engineer, Land Surveyors and Geologists at all times during the contract period and shall have a documented minimum ten (10) years of demonstrated experience acceptable to the City in management and delivery of projects for local agencies. The City intends to award up to three (3) Civil Engineering firms; however, the exact number will be determined depending on the quality, diversity and responsiveness of the qualifications received. This solicitation is not for specific projects, but for specific services. The services are to be rendered for the duration of the contract term. The City does not guarantee a specific number or dollar amount of projects that will be contracted. The contract(s) will be for a 3-year term and the City will issue a purchase order for a specified amount not to exceed the total anticipated fiscal year amount. Within each Purchase Order, the City will issue project tasks based upon the scope of services, work schedule, and fee proposal submitted to the City for its review and approval. The anticipated total Fiscal Year (FY) funding level for consulting services is as follows: FY 2023 - $250,000, FY 2024 - $250,000, and FY 2025 - $250,000 for a total of $750,000. OBJECTIVES The purpose of this Request for Qualifications is to develop a list containing more than one consultant firm that can provide the City with On-Call Geotechnical and Engineering Services on an as-needed basis. The goal of this proposal is to create a Shortlist of qualified consultants that will be available for use by City staff on projects related to water, sewer, storm water, streets, and general facility repairs due to storm events, hazardous mitigation or emergency repair. SCOPE OF SERVICES Selected qualified firms shall provide On-Call Geotechnical and Engineering services that may be requested by the City during the term of this agreement in a prompt, professional, and workmanlike manner in accordance with the standards of the Engineering profession. All work, unless otherwise specified, shall be performed on a time and materials basis, and completed to the satisfaction of the Project Manager within the time periods allocated, or as mutually agreed to at the beginning of the assignment. The following list provides examples of services that may be requested. Not all services may be needed on a specific project. Actual services will be project based according to need. 3 CONSULTANT SERVICES (AT A MINIMUM) Provide consulting and professional services including project planning, design, engineering, land surveying, and drafting services. Provide professional services during the bid process including preparation of cost estimates and specifications, project construction and project completion. Provide field surveys as requested. Update and correct City base maps for sewer and storm drainage and water systems. Provide maps and mapping services as requested. Preparation and review of legal descriptions for easements. Provide Geotechnical Engineering Services that may include bore sampling including but not limited to organic and non-organic compounds, determination of soil properties, ground water levels, trench stability, shoring requirements, pile bearing capacities, and soil and water corrosiveness. Provide personnel to inspect projects that involve soil excavations, backfilling, placement of imported soils, asphalt paving, and other operations relative to sewer, streets, underground utilities, retaining walls, and special engineering structures. Professional Civil Engineering Services for Public Works Projects including street pavement rehabilitation design, slope stability analysis, landslide evaluation and repair, retaining wall design and other special projects. Review the Citys requested project and/or task to be accomplished and provide preliminary consultation, research and evaluation of the same. Third party review consultation related to documents prepared by the Citys Engineering Division or other consultants retained by the City. Review and provide comments on environmental documents for proposed projects submitted to the City in accordance with the California Environmental Quality Act. Provide other engineering and design services as requested. Understanding of Federally Funded/approved Project. All plans and drawings must be drafted by the latest AutoCAD Civil 3D. All design data using said programs shall be made available to the City upon request and shall become the property of the City for active and future projects. The work shall comply with the following requirements: Current Federal laws, State laws and Local laws Current Caltrans Construction Contract Standards (Plans and Specifications) Current Highway Design Manual Current City of Antioch Construction Details. Pursuant to an authorized Work Order, the consultant shall provide engineering services and all necessary personnel, material, transportation, lodging, instrumentation, and the specialized facilities and equipment necessary to satisfy all appropriate agencies as listed above. 4 PERSONNEL REQUIREMENTS The consultants personnel shall be capable, competent, and experienced in performing the types of work in this Contract with minimal instruction. Personnel skill level should match the specific job classifications, as set forth herein or in the consultants Cost Proposal and project complexity. The consultants personnel shall be knowledgeable about, and comply with, all applicable Federal, State and Local laws and regulations. In addition to other specified responsibilities, the consultants Project Administrator shall be responsible for all matters related to the consultants personnel, subconsultants, and all related operations including, but not limited to, the following: Ensuring that all deliverables are clearly defined and those criteria are specific, measurable, attainable, realistic and time-bound. Supervising, reviewing, monitoring, training and directing the consultants and sub- consultants personnel. Assigning qualified personnel to complete the required project assigned work in coordination with the City Contract Administrator. Maintaining and submitting organized project files for record tracking and auditing. Developing, organizing, facilitating, and attending scheduled coordination meetings to include, but not limited to being available for field meets with Government Agencies when it pertains to federally granted projects. Providing invoices in a timely manner and providing monthly contract expenditures. Reviewing invoices for accuracy and completion before billing to City. Assuring that all safety measures are in place. Managing subconsultants. Knowledge, experience, and familiarity with prevailing wage issues and requirements in the State of California PERIOD OF AWARD The effective date of On-Call Services to be available for the City shall begin upon Contract Execution and shall continue until June 30, 2025 with the option to extend an additional two years. If the City desires to extend the contract, not later than thirty (30) days prior to expiration, the City shall send a notice in writing to the vendor requesting firm pricing for the next twelve-month period. After the City evaluates the firm pricing proposal from the consultant, it will determine whether to extend the contract. All awards and extensions are subject to annual appropriation of funds. The provisions of the foregoing paragraphs with respect to extensions of the terms of the contract shall be null and void if the contract has been terminated or revoked during the initial term of extension thereof. All decisions to extend the contract are at the option of the City. SUBMITTAL REQUIREMENTS Please prepare and organize your Qualifications based on the requirements provided below. Any other information you would like to include should be placed in a separated section at the back of your Submittal. Please note however that the RFQ submittal is limited to 20 pages maximum (excluding resumes) and should be submitted on 8 x 11 paper, in 12-point font. 1. Interested firms are requested to submit three (3) sealed copies of their Qualifications and/or one electronic copy in PDF format as follows: Enclose a cover letter not to exceed one page describing the firm's interest and commitment to perform On-Call Geotechnical 5 and Engineering Services. Cover letter must be signed by an individual authorized to negotiate on behalf of the firm with the budget and scope of services binding for a term of 90 days from the date of submittal to the City. 2. State the qualifications and experience of the firm/individual(s). Please emphasize the specific qualifications and experience with engagements of similar scope and complexity. Provide detail for key individuals that will be assigned to the project team, and their qualifications and respective roles including all applicable education, experience, licenses, and professional designations. 3. Provide at least three references (names and current phone numbers) from recent work (previous five years) similar to the service categories your firm is interested in providing. Include a brief description of the role associated with the reference, and the role of the respective team member. Place emphasis on municipal projects. 4. Include an organization chart, including those who may take a role in as a consultant to the City. 5. Provide a schedule of fees for services, including current dollar/hour billing rates. If applicable, provide the schedule of fees for sub-consultant firms at time of submission. 6. Project understanding and approach showing a clear description of the Consultants understanding of the project, and state the approach and methodologies in which the consultant proposes to understate in order to meet the stated objectives of the City. Provide specific timeframes if needed for contract execution, work requests, and turnaround times for project proposals. 7. Provide confirmation of your firms ability to meet the Citys Consulting Services Agreement and insurance requirements (Exhibit A). Exceptions to the Agreement and insurance requirements shall be specifically noted in the Proposal. 8. Provide a quality of work plan for the current project on file needing assistance: The City of Antioch has a current project on record that will be federally funded. This project will require the replacement of Sewer and Water connections, Geotechnical Engineering, Pile Driving, Soils Testing, road replacement, full design for replacement of flapper gates as well as structural components throughout the project. There is likely to be mitigation measures to ensure the failures do not occur in the future. This will be a complete design build working alongside FEMA and Cal-OES personnel and will require Environmental awareness throughout the project. SELECTION CRITERIA All qualifications will be evaluated based on the criteria below. Qualifications and experience of key project team members, particularly the Project Manager, qualified technical and support personnel - 25 points Experience with local municipalities and agencies - 25 points Staff Availability 15 points Quality and completeness of the proposal 10 points Ability to meet contract and insurance requirements 10 points Quality of Work Plan understanding the steps necessary to move forward with the current project on file 10 points Schedule of Rates/Fees including current dollar/hour billing rates 5 points 6 CONTRACT TERMS AND CONDITIONS It is anticipated that the selected consultant will work under a three-year Service Agreement with the City. Payment for services provided under the service agreement will be on a time and materials or project basis with a ceiling when dealing with federally granted projects with a not- to-exceed limit of $250,000 per year total contract price. At the end of the three-year term, the City may renew the consultants Service Agreement for two one-year period extensions with a not-to- exceed limit of $250,000 per year. Services will be requested on an as needed basis and there is no guarantee of work or that all funds will be used. CONTRACT TERMS AND CONDITIONS Enclosed is a copy of the City of Antiochs Consulting Services Agreement. By submitting a proposal for this work, a firm agrees to comply with all terms and conditions outlined in the agreement. It is anticipated that the selected consultant(s) will work under a three-year Agreement with the City. At the end of the three-year term, the City may renew the Agreement for up to two additional years. It is anticipated that from the proposals submitted, City staff will be able to select the firm best suited to meet the Citys needs. However, if that is not possible, the City will ask a short list of firms to meet with staff to discuss the project and the firms proposal. The City will negotiate a Consultant Service Agreement for the work after staff has determined the best qualified firms. No compensation will be due any firm for preparation of a written proposal or for meeting with staff after a short list has been determined. SUBMISSION INSTRUCTIONS Three (3) bound, one (1) unbound and one (1) electronic copy of the proposal must be submitted no later than 1:00 p.m. on Thursday, April 13, 2023 to: City Clerks Office City of Antioch 200 H Street Antioch, CA 94509 If mailed please address to: Attn: City Clerks Office Bid Provided PO Box 5007 Antioch, CA 94531 Any questions regarding the above should be directed to Christine Raposo, Public Works Department at (925) 779-6822 or craposo@antiochca.gov. Attachments A. City of Antioch Consulting Services Agreement mailto:craposo@antiochca.gov Page 1 of 12 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF ANTIOCH AND [NAME OF CONSULTANT] FOR ON-CALL GEOTECHNICAL AND ENGINEERING SERVICES THIS AGREEMENT (Agreement) is made and entered into this day of , 202 (Effective Date) by and between the City of Antioch, a municipal Corporation with its principle place of business at 200 H Street, Antioch, CA 94509 (City) and with its principle place of business at (Consultant). City and Consultant individually are sometimes referred to herein as Party and collectively as Parties. SECTION 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to 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 (Services). In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on , the date of completion specified in Exhibit A, and Consultant shall complete the Services described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the Services required by this Agreement shall not affect the Citys right to terminate the Agreement, under Section 8. 1.2 Standard of Performance. Consultant represents that it is experienced in providing these services to public clients and is familiar with the plans and needs of City. 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. 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 Section 1.1 above and to satisfy Consultants obligations hereunder. SECTION 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed , notwithstanding any contrary indications that may be contained in Consultants proposal, for Services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultants proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for Services rendered pursuant to this Agreement at the time and in the manner set forth below. The payments specified below shall be the only payments from City to Consultant for Services rendered pursuant to this Agreement. Page 2 of 12 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 Consultants estimated costs of providing the Services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the Parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for Services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; The beginning and ending dates of the billing period; A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; At Citys option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services; and, The Consultants signature. 2.2 Payment Schedule. 2.2.1 City shall make incremental payments, based on invoices received, [according to the payment schedule attached as Exhibit B and incorporated herein], for Services satisfactorily performed, in accordance with the requirements of this Agreement, and for authorized reimbursable costs incurred. City shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements of Section 2.1 to pay Consultant. 2.3 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, unless expressly provided for in Section 2.5. Page 3 of 12 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. 2.4 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the fee schedule in Exhibit B. 2.5 Reimbursable Expenses. Reimbursable expenses are specified below, and shall not exceed ($ ). Expenses not listed below are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. Reimbursable Expenses are: 2.6 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.7 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 Consultant receives authorization to proceed from the Contract Administrator. 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 Consultants 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, shall procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work by the Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects 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 proposal. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Insurers shall have an AM Best rating of no less than A:VII unless otherwise accepted by the City in writing: Page 4 of 12 4.1 Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an occurrence basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. If Consultants services include work within 50 feet of a railroad right of way, the Consultant shall have removed any exclusion on their liability policy limiting coverage for work near a railroad, or shall provide a Railroad Protective Liability policy in favor of the City. Limits for such coverage shall be no less than $5,000,000. 4.2 Automobile Liability Insurance. ISO Form Number CA 00 01 covering any auto (Code 1), or if Consultant has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage. 4.3 Workers' Compensation Insurance. as required by the State of California, with Statutory Limits, and Employers Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4.4 Professional Liability (Errors and Omissions): Insurance appropriate to the Consultants profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate. 4.5 Other Insurance Provisions. Unless otherwise specified below, all insurance policies are to contain, or be endorsed to contain, the following provisions: 4.5.1 Additional Insured Status. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. CGL coverage can be provided in the form of an endorsement to the Consultants insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 and CG 20 37 if a later edition is used). This requirement shall only apply to the CGL and Automobile Liability Insurance policies specified above. 4.5.2 Primary Coverage. For any claims related to this contract, the Consultants insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultants insurance and shall not contribute with it. This requirement shall only apply to the CGL and Automobile Liability Insurance policies specified above. 4.5.3 Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. 4.5.4 Waiver of Subrogation. Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. This requirement shall only apply to the CGL, Automobile Liability and Workers Compensation/Employers Liability Insurance policies specified above. Page 5 of 12 4.5.5 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the Consultant to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. 4.5.6 Claims made policies. If any of the required policies provide claims-made coverage: 4.5.6.1 The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work. 4.5.6.2 Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 4.5.6.3 If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of contract work. 4.6 Certificate of Insurance and Endorsements. Consultant shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultants obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. 4.7 Subcontractors. Consultant shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated in this Agreement, including but not limited to naming additional insureds. 4.8 Higher Limits. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 4.9 Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances. 4.10 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 Consultants breach: Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due to Consultant under the Agreement; Page 6 of 12 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, Terminate this Agreement. SECTION 5. INDEMNIFICATION AND CONSULTANTS RESPONSIBILITIES. 5.1 To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably acceptable to City), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultants services or this Agreement, including without limitation the payment of all damages, expert witness fees and attorneys fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. 5.1.1 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. 5.2 By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration, and that these provisions survive the termination of this Agreement. 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 Section 1.3; however, otherwise City shall not have the right to control the manner or means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including, but not limited to, eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. 6.2 Consultant Not 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. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Page 7 of 12 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 Services. 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 of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a persons race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, sexual orientation or any other legally protected status, 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 Section in any subcontract approved by the Contract Administrator or this Agreement. 7.6 California Labor Code Requirements. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain public works and maintenance projects (Prevailing Wage Laws). If the services are being performed as part of an applicable public works or maintenance project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not Page 8 of 12 apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. If the services are being performed as part of an applicable public works or maintenance project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the full term of this Agreement and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultants sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultants performance of services, including any delay, shall be Consultants sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor. SECTION 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement only for cause upon thirty (30) days written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for Services performed satisfactorily to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in their sole and exclusive discretion, extend the end date of the term of this Agreement beyond that provided for in Section 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 Page 9 of 12 Consultants 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 subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, Citys 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; and/or 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant in which case the City may charge Consultant the difference between the cost to have a different consultant 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 Consultants Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, drawings, 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. 9.2 Confidentiality. 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 kept confidential by Consultant. Such materials shall not, without the prior written permission of City, be used by Consultant for any purpose other than the performance of this Agreement nor shall such materials be disclosed publicly. Nothing furnished to Consultant which is generally known, shall be deemed confidential. Consultant shall not use the Citys name or logo or photographs pertaining to the Services under this Agreement in any publication without the prior written consent of the City. 9.3 Consultants 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 Page 10 of 12 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.. 9.4 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 City, for a period of three (3) years after final payment under the Agreement. 9.5 Intellectual Property. The City shall have and retain all right, title and interest, including copyright, patent, trade secret or other proprietary rights in all plans, specifications, studies, drawings, estimates, materials, data, computer programs or software and source code, enhancements, documents and any other works of authorship fixed in any tangible medium or expression, including but not limited to physical drawings or other data magnetically or otherwise recorded on computer media (Intellectual Property) prepared or developed by or on behalf of Consultant under this Agreement. Consultant further grants to City a non-exclusive and perpetual license to copy, use, modify or sub-license any and all Intellectual Property otherwise owned by Consultant which is the basis or foundation for any derivative, collective, insurrectional or supplemental work created under this Agreement. SECTION 10. MISCELLANEOUS PROVISIONS. 10.1 Venue. In the event either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Contra Costa or in the United States District Court for the Northern District of California. 10.2 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. 10.3 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. 10.4 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. 10.5 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. 10.6 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a conflict of interest, as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Page 11 of 12 Consultant shall not employ any official of City 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 Section 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 City in the previous twelve 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 Section 1090 and, if applicable, will be disqualified from holding public office in the State of California. 10.7 Inconsistent Terms. If the terms or provisions of this Agreement conflict with or are inconsistent with any term or provision of any Exhibit attached hereto, then the terms and provisions of this Agreement shall prevail. 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 Jeff Cook ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Any written notice to City shall be sent to: Public Works City of Antioch P. O. Box 5007 Antioch, CA 94531-5007 City of Antioch P. O. Box 5007 Antioch, CA 94531-5007 Attn: City Attorney 10.11 Integration. This Agreement, including all exhibits and other attachments, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. Page 12 of 12 CITY: CONSULTANT: CITY OF ANTIOCH [NAME OF CONSULTANT] By: Forrest Ebbs, Acting City Manager Attest: Name: Title: Elizabeth Householder, City Clerk Approved as to Form: By: Name: Title: Thomas Lloyd Smith, City Attorney [Two signatures are required for a corporation or one signature with the corporate bylaws indicating that one person can sign on behalf of the corporation]