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HomeMy WebLinkAbout07. Approve PSA for On-Call Construction Mgmt and Inspection SrvcsCITY OF DOWNEY PROFESSIONAL SERVICES AGREEMENT WITH EC&AM ASSOCIATES, DOING BUSINESS AS GK & ASSOCIATES FOR ON-CALL PUBLIC WORKS CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES 1.PARTIES AND DATE. This Agreement is made and entered into this 1st day of May, 2018 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and EC&AM Associates, doing business as GK & Associates, a California Corporation, with its principal place of business at 3333 Brea Canyon Road, Suite 120, Diamond Bar, CA 91765 ("Consultant"). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.” 2.RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional On-Call Public Works Construction Management and Inspection services required by City on the terms and conditions set forth in this Agreement. Consultant represents that it has demonstrated competence and experience in providing On-Call Public Works Construction Management and Inspection services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for On-Call Public Works Construction Management and Inspection projects (“Project”) as set forth in this Agreement. 3.TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional On-Call Public Works Construction Management and Inspection services necessary for the Projects ("Services"). The Services are more particularly described in Exhibit “A” attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Attachment "A" 2 3.1.2 Term. The term of this Agreement shall be from May 1, 2018 to April 30, 2021, with an option to extend the agreement for three additional one-year periods, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and de adlines. The term of this Agreement may be extended by written amendment to this Agreement signed by the City Manager and the Consultant. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as requi red by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CalPERS) to be eligible for enrollment in CalPERS as an employee of City, Consultant shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CalPERS 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. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “A” attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. The parties acknowledge that the Schedule of Services may be amended by mutual agreement due to changes in circumstances, including changes in the performance schedules of other third parties performing work for the City on the Project, which affect the timing of Consultant's performance of the Services. 3 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. 3.2.5 City’s Representative. The City hereby designates Edwin Norris, Deputy Director of Public Works, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City’s Represe ntative or his or her designee. 3.2.6 Consultant’s Representative. Consultant hereby designates Ghazala Khan, or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be respon sible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As 4 provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub -consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Consultant and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failu re to comply with such laws, rules or regulations. Consultant’s violation of such laws, rules and regulations shall also constitute a material breach of this Agreement. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subc ontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: 5 (A) Minimum Scope of Insurance. (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 and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Consultant owns no autos, Code 8 (hired) and 9 (non-owned); and (3) Workers’ Compensation : Workers’ Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation: Workers’ Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer’s Liability: Employer’s Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer’s Liability coverage may be waived by the City if City receives written verification that Consultant has no emplo yees. If the Consultant maintains broader coverage and/or higher limits tha n the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.3 Professional Liability (Errors & Omissions). Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the 6 Consultant, including materials, parts or equipment furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Consultant’s insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). (B) 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 said insurance policies set forth herein. Consultant agrees to obtain any endorsement that may be necessary to affect th is waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Primary Coverage. For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. 3.2.10.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors officials, officers, employees, agents and volunteers. 3.2.10.7 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City. 3.2.10.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, authorized to do business in California, and satisfactory to the City. 7 3.2.10.9 Verification of Coverage. Consultant shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Consultant’s obligation to provide them to th e City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. 3.2.10.10 Claims-Made Policies. If any of the policies provide coverage on a claims-made basis: (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement , whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (C) If coverage is canceled, non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at t he rates set forth in Exhibit “A” attached hereto and incorporated herein by reference. The total compensation shall not exceed an amount based on the rates set forth in Exhibit “A” without written approval of the City. Extra Work may be authorized, as described below, and if 8 authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expen ses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Consultant may only terminate this Agreement for cause upon giving the City not less than seven (7) calendar days' written notice. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. The City shall within fifteen (15) calendar days following termination pay the Consultant for all services adequately rendered and all reimbursable costs incurred by 9 Consultant up to the date of termination, in accordance with the payment provisions of this Agreement. The following reasons shall constitute "cause" for which either party may terminate this Agreement as provided herein: • Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; • Suspension of the Project or the Consultant's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: EC & AM Associates, doing business as GK & Associates 3333 Brea Canyon Road, Suite 120 Diamond Bar, CA 91765 Phone: (909) 595-1940 Email: gkhan@gkandassociates.com Attn: Ghazala Khan 10 City: City of Downey 11111 Brookshire Avenue Downey, California 90241 Phone: (562) 904-7102 Fax: (562) 904-7296 Attn: Edwin Norris, Deputy Director of Public Works With a courtesy copy to: City of Downey City Attorney’s Office 11111 Brookshire Avenue Downey, California 90241 Such notice shall be deemed made when personally delivered or when mailed, forty - eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Ser vices or the 11 Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation. 3.5.6 Indemnification. 3.5.6.1 General Indemnification. Except as provided in subdivision 3.5.6.2 below which is applicable to “design professionals” only, Consultant shall defend (with counsel 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, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Consultant shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct. 3.5.6.2 Design Professionals. The provisions of this subdivision 3.5.6.2 shall apply only in the event that Consultant is a "design professional" within the meaning of California Civil Code section 2782.8(c). If Consultant is a "design professional" 12 within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6.1 above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 2782 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to C ity), indemnify and hold harmless City and City’s officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, subcontractor or any other person directly or indirectly employed by them, or any person that any of them control, arising out of Consultant's performance of any task or service for or on behalf of City under this Agreement. Such obligations to defend, hold harmless and indemnify City or any City officers, officials, employees or volunteers shall not apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Consultant's cost to defend City and/or City’s officers, officials, employees or volunteers against any such Claim shall not exceed Consultant's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, C onsultant shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Consultant has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Consultant shall be responsible for all incidental and consequential damages resulting direct ly or indirectly, in whole or in part, from Consultant's negligence, recklessness or willful misconduct. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 13 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of any City 14 Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self - insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, delive r, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. 3.5.23 Effect of Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Consultant shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Consultant shall ensure that City is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF DOWNEY, EC & Am Associates, a California municipal corporation doing business as GK & Associates and charter city By: By: ______________________________ Sean Ashton, Mayor Ghazala Khan President 15 Attest: Maria Alicia Duarte, CMC, City Clerk Approved as to Form: __________________________ Yvette M. Abich Garcia, City Attorney 12385 Exhibit "A" CITY OF DOWNEY PROFESSIONAL SERVICES AGREEMENT WITH FARHADI AND ASSOCIATES, INC. FOR ON-CALL PUBLIC WORKS CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES 1.PARTIES AND DATE. This Agreement is made and entered into this 1st day of May, 2018 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and Farhadi and Associates, Inc., a California Corporation, with its principal place of business at P.O. Box 54421 Irvine, CA 92619 ("Consultant"). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.” 2.RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional On-Call Public Works Construction Management and Inspection services required by City on the terms and conditions set forth in this Agreement. Consultant represents that it has demonstrated competence and experience in providing On-Call Public Works Construction Management and Inspection services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for On-Call Public Works Construction Management and Inspection projects (“Project”) as set forth in this Agreement. 3.TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional On-Call Public Works Construction Management and Inspection services necessary for the Projects ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Attachment "B" 2 3.1.2 Term. The term of this Agreement shall be from May 1, 2018 to April 30, 2021, with an option to extend the agreement for three additional one-year periods, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The term of this Agreement may be extended by written amendment to this Agreement signed by the City Manager and the Consultant. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consu ltant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform simil ar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CalPERS) to be eligible for enrollment in CalPERS as an employee of City, Consultant shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CalPERS 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. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule o f Services set forth in Exhibit “A” attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. The parties acknowledge that the Schedule of Services may be amended by mutual agreement due to changes in circumstances, including changes in the performance schedules of other third parties performing work for the City on the Project, which affect the timing of Consultant's performance of the Services. 3 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event tha t City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. 3.2.5 City’s Representative. The City hereby designates Edwin Norris, Deputy Director of Public Works, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representat ive shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee. 3.2.6 Consultant’s Representative. Consultant hereby designates Yadollah (Yadi) Farhadi, P.E., or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As 4 provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Consultant and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs an y work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Consultant’s violation of such laws, rules and regulations shall also constitute a material breach of this Agreement. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with t he performance of the Agreement, the Services or the Project by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: 5 (A) Minimum Scope of Insurance. (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 and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Consultant owns no autos, Code 8 (hired) and 9 (non-owned); and (3) Workers’ Compensation : Workers’ Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation: Workers’ Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer’s Liability: Employer’s Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer’s Liability coverage may be waived by the City if City receives written verification that Consultant has no employees. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.3 Professional Liability (Errors & Omissions). Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or higher limits maint ained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the 6 Consultant, including materials, parts or equipment furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Consultant’s insurance (at lease as broad as IS O Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). (B) 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 said insurance policies set forth herein. 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. (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, void ed, reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Primary Coverage. For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. 3.2.10.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors officials, officers, employees, agents and volunteers. 3.2.10.7 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City. 3.2.10.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, authorized to do business in California, and satisfactory to the City. 7 3.2.10.9 Verification of Coverage. Consultant shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Consultant’s obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. 3.2.10.10 Claims-Made Policies. If any of the policies provide coverage on a claims-made basis: (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (C) If coverage is canceled, non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed an amount based on the rates set forth in Exhibit “A” without written approval of the City. Extra Work may be authorized, as described below, and if 8 authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of th e subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work with out written authorization from the City Manager. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allo w inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Consultant may only terminate this Agreement for cause upon giving the City not less than seven (7) calendar days' written notice. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. The City shall within fifteen (15) calendar days following termination pay the Consultant for all services adequately rendered and all reimbursable costs incurred by 9 Consultant up to the date of termination, in accordance with the payment provisions of this Agreement. The following reasons shall constitute "cause" for which either party m ay terminate this Agreement as provided herein: • Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; • Suspension of the Project or the Consultant's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: Farhadi and Associates, Inc. P.O. Box 54421 Irvine, CA 92619 Phone: (949) 910-2590 Email: yfarhadi@hotmail.com Attn: Yadi Farhadi, P.E. 10 City: City of Downey 11111 Brookshire Avenue Downey, California 90241 Phone: (562) 904-7102 Fax: (562) 904-7296 Attn: Edwin Norris, Deputy Director of Public Works With a courtesy copy to: City of Downey City Attorney’s Office 11111 Brookshire Avenue Downey, California 90241 Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the 11 Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation. 3.5.6 Indemnification. 3.5.6.1 General Indemnification. Except as provided in subdivision 3.5.6.2 below which is applicable to “design professionals” only, Consultant shall defend (with counsel 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, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Consultant shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct. 3.5.6.2 Design Professionals. The provisions of this subdivision 3.5.6.2 shall apply only in the event that Consultant is a "design professional" within the meaning of California Civil Code section 2782.8(c). If Consultant is a "design professional" 12 within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6.1 above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 27 82 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to C ity), indemnify and hold harmless City and City’s officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, subcontractor or any other person directly or indirectly employed by them, or any person that any of them control, a rising out of Consultant's performance of any task or service for or on behalf of City under this Agreement. Such obligations to defend, hold harmless and indemnify C ity or any City officers, officials, employees or volunteers shall not apply to the exte nt that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Consultant's cost to defend City and/or City’s officers, officials, employees or volunteers against any such Claim shall not exceed Consultant's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Consultant shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Consultant has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Consultant shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from Consultant's negligence, recklessness or willful misconduct. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall ac quire no right or interest by reason of such attempted assignment, hypothecation or transfer. 13 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of any City 14 Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. 3.5.23 Effect of Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Consultant shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Consultant shall ensure that City is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF DOWNEY, Farhadi and Associates, Inc. a California municipal corporation a California Corporation and charter city By: By: ______________________________ Sean Ashton, Mayor Yadi Farhadi, P.E. President 15 Attest: Maria Alicia Duarte, CMC, City Clerk Approved as to Form: __________________________ Yvette M. Abich Garcia, City Attorney 12385 Exhibit "A" FARHADI AND ASSOCIATES INC. Hourly Rate Schedule For City of Downey It e m Title Qualification and Experience Hourly Rates 1 Principal Program/Construction/Project Manager PE, 30+ Years $149 2 Senior Construction/Project Manager PE, 15+ Years $132 3 Construction/Project Manager PE, 5+ Years $114 4 Construction/Project Manager 15+ Years $114 5 Senior Inspector PE,15+ Years $132 6 Senior Inspector 15+ Years $99 7 Inspector 5+ Years $84 8 Clarical $60 The hourly rates are valid to June 30, 2021 4/12/2018 CITY OF DOWNEY PROFESSIONAL SERVICES AGREEMENT WITH FCG CONSULTANTS, INC. FOR ON-CALL PUBLIC WORKS CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES 1.PARTIES AND DATE. This Agreement is made and entered into this 1st day of May, 2018 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and FCG Consultants, Inc., a California Corporation, with its principal place of business at 22885 Savi Ranch Parkway, Suite G, Yorba Linda, CA 92887 ("Consultant"). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.” 2.RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional On-Call Public Works Construction Management and Inspection services required by City on the terms and conditions set forth in this Agreement. Consultant represents that it has demonstrated competence and experience in providing On-Call Public Works Construction Management and Inspection services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for On-Call Public Works Construction Management and Inspection projects (“Project”) as set forth in this Agreement. 3.TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional On-Call Public Works Construction Management and Inspection services necessary for the Projects ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Attachment "C" 2 3.1.2 Term. The term of this Agreement shall be from May 1, 2018 to April 30, 2021, with an option to extend the agreement for three additional one-year periods, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The term of this Agreement may be extended by written amendment to this Agreement signed by the City Manager and the Consultant. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to pe rform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CalPERS) to be eligible for enrollment in CalPERS as an employee of City, Consultant shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CalPERS 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. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “A” attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Service s. The parties acknowledge that the Schedule of Services may be amended by mutual agreement due to changes in circumstances, including changes in the performance schedules of other third parties performing work for the City on the Project, which affect the timing of Consultant's performance of the Services. 3 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. 3.2.5 City’s Representative. The City hereby designates Edwin Norris, Deputy Director of Public Works, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee. 3.2.6 Consultant’s Representative. Consultant hereby designates Maha Fakhouri, or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As 4 provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Consultant and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Consultant’s violation of such laws, rules and regulations shall also constitute a material breach of this Agreement. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: 5 (A) Minimum Scope of Insurance. (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 and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Consultant owns no autos, Code 8 (hired) and 9 (non-owned); and (3) Workers’ Compensation : Workers’ Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation: Workers’ Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer’s Liability: Employer’s Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer’s Liability coverage may be waived by the City if City receives written verification that Consultant has no employees. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.3 Professional Liability (Errors & Omissions). Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the 6 Consultant, including materials, parts or equipment furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Consultant’s insurance (at lease as broad as ISO For m CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). (B) 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 said insurance policies set forth herein. 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. (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Primary Coverage. For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. 3.2.10.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors officials, officers, employees, agents and volunteers. 3.2.10.7 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City. 3.2.10.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, authorized to do business in California, and satisfactory to the City. 7 3.2.10.9 Verification of Coverage. Consultant shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Consultant’s obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. 3.2.10.10 Claims-Made Policies. If any of the policies provide coverage on a claims-made basis: (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement , whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (C) If coverage is canceled, non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest , the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed an amount based on the rates set forth in Exhibit “A” without written approval of the City. Extra Work may be authorized, as described below, and if 8 authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Consultant may only terminate this Agreement for cause upon giving the City not less than seven (7) calendar days' written notice. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. The City shall within fifteen (15) calendar days following termination pay the Consultant for all services adequately rendered and all reimbursable costs incurred by 9 Consultant up to the date of termination, in accordance with the payment provisions of this Agreement. The following reasons shall constitute "cause" for which either party may te rminate this Agreement as provided herein: • Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; • Suspension of the Project or the Consultant's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: FCG Consultants, Inc. 22885 Savi Ranch Parkway, Suite G, Yorba Linda, CA 92887 Phone: (714) 312-0317 Email: maha.fakhouri@fcgconsultants.com Attn: Maha Fakhouri, President 10 City: City of Downey 11111 Brookshire Avenue Downey, California 90241 Phone: (562) 904-7102 Fax: (562) 904-7296 Attn: Edwin Norris, Deputy Director of Public Works With a courtesy copy to: City of Downey City Attorney’s Office 11111 Brookshire Avenue Downey, California 90241 Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service . 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such us e not within the purposes intended by this Agreement shall be at City’s sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Con sultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the 11 Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation. 3.5.6 Indemnification. 3.5.6.1 General Indemnification. Except as provided in subdivision 3.5.6.2 below which is applicable to “design professionals” only, Consultant shall defend (with counsel 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, in law or equity, to pr operty or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Consultant shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct. 3.5.6.2 Design Professionals. The provisions of this subdivision 3.5.6.2 shall apply only in the event that Consultant is a "design professional" within the meaning of California Civil Code section 2782.8(c). If Consultant is a "design professional" 12 within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6.1 above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 2782 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to C ity), indemnify and hold harmless City and City’s officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, subcontractor or any other person directly or indirectly employed by them, or any person that any of them control, arising out of Consultant's performance of any task or service for or on behalf of City under this Agreement. Such obligations to defend, hold harmless and indemnify C ity or any City officers, officials, employees or volunteers shall not apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Consultant's cost to defend City and/or City’s officers, officials, employees or volunteers against any such Claim shall not exceed Consultant's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its sha re of defense costs due to bankruptcy or dissolution of the business, C onsultant shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Consultant has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Consultant shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from Consultant's negligence, recklessness or willful misconduct. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 13 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement , the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdicti on, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, o fficer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of any City 14 Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. 3.5.23 Effect of Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Consultant shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Consultant shall ensure that City is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF DOWNEY, FCG Consultants, Inc. a California municipal corporation a California Corporation and charter city By: By: ______________________________ Sean Ashton, Mayor Maha Fakhouri President 15 Attest: Maria Alicia Duarte, CMC, City Clerk Approved as to Form: __________________________ Yvette M. Abich Garcia, City Attorney 12385 QUALIFICATIONS For On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Prepared by: Project Director: Maha Fakhouri, President and CEO 22885 Savi Ranch Parkway, Suite G Yorba Linda, California 92887 P: 714.312.0317 F: 714.312.0793 C: 714.883.8068 maha.fakhouri@fcgconsultants.com Project Manager: Abdallah Fakhouri, PE 22885 Savi Ranch Parkway, Suite G Yorba Linda, California 92887 P: 714.312.0317 F: 714.312.0793 C: 714.225.3007 ab.fakhouri@fcgconsultants.com TABLE OF CONTENTS Section 1: Table of Contents 1 Section 2: Cover Letter 2 Section 3: Executive Summary and Firm Information 3 Section 4: Team Organization 4 Section 5: Relevant Projects and References 13 Section 6: Project Management, Understanding and Approach 16 Section 7: Scope of Work Program 18 Section 8: Fee Schedule, Financial Condition and Exceptions 25 Section 9: Additional Information 26 Exhibit A: Staffing Plan 27 Page | 2 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 SECTION 2: COVER LETTER June 15, 2017 Mr. Edwin J. Norris, P.E. Deputy Director of Public Works City of Downey 11111 Brookshire Avenue Downey, CA 90241-3817 Subject: On-Call Public Works Construction Management and Inspection Services - RFP 17-02 FCG Consultants, Inc. (FCG) is pleased to submit our proposal to the City of Downey to provide On-Call Public Works and Construction Management and Inspection Services - RFP 17-02. FCG is a California Corporation certified as a Small, Woman Owned Business Enterprise (WBE/SBE) firm. Our firm is structured to serve public agencies. Our management has developed a high proficiency for balancing resources to successfully deliver capital improvement projects to our clients. FCG staff have worked on a large variety of projects with many agencies such as cities, counties, state departments, water agencies, irrigation districts, railroads, airports, school districts, and private developers, utilizing various standards; Green Book, State Water Resource Board, South Coast Air Quality Management District, Southern California Edison, Caltrans Standard Specifications, City Standards, Local Assistance, FHWA, AWWA, City and OSHA Construction Safety Orders. FCG staff will bring this experience to the City of Downey for this RFQ to perform the necessary construction management services and assist the project manager with all administrative and technical services from pre-construction to project closeout. Our Project Manager Mr. Abdallah Fakhouri, PE, has more than 22 years of construction management and resident engineering experience on roadways, freeways, structures, highways, and other transportation construction projects. Mr. Fakhouri has managed a wide range of Capital Improvement Projects that included Slurry Seal, HMA Paving, Utilities, Electrical, and Landscape. Mr. Fakhouri will be the single point of contact with the City of Downey, as well as with the staff in the field and office for all daily inspection and administrative activities. Available and Committed: FCG understands how important this contract is to the City of Downey. The City can be assured that FCG is dedicated to proposing professional team members that have the qualifications, experience and skills for this contract. Having completed numerous large construction projects in California, our public works experienced staff is available, ready for assignments on projects throughout the City, and able to handle several active projects concurrently should the need arise. Respectfully submitted, Maha Fakhouri President / CEO Contact Information 22885 Savi Ranch Parkway, Suite G Yorba Linda, California 92887 (714) 312-0317 Maha.fakhouri@fcgconsultants.com Page | 3 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 SECTION 3: EXECUTIVE SUMMARY AND FIRM INFORMATION FIRM PROFILE FCG is a California S-Corporation certified as a Small, Woman Owned Business Enterprise (WBE/SBE). Our firm is structured to serve public agencies and our management has developed a high proficiency for balancing resources to successfully deliver capital improvement projects to our clients. Founded in 2009, FCG has been providing expertise in project management, construction engineering and management, inspection, office engineering, materials testing, labor compliance and contract administration to its various clients since its inception. FCG serves its clients from two locations, Yorba Linda and San Marcos. With ten employees working from our Yorba Linda office and an additional two working from our San Marcos office, we are able to cover a larger geographic market to better serve our clients. FCG staff have worked on a large variety of projects with many agencies such as cities, counties, state departments, water agencies, irrigation districts, railroads, airports, school districts, and private developers, utilizing various standards, to include Federal, State, County of San Diego, City of Whittier, San Dieguito Water District, Water Agencies’ Standards (WAS), California Manual of Traffic Control Devices (CAMUTCD), Standard Specifications for Public Works Construction, APWA, Caltrans and other applicable standards and specifications. FCG staff will bring this experience to the City of Downey for this RFQ to perform the necessary construction management and inspection services and assist the project manager with all administrative and technical services from pre-construction to project closeout. FIRM’S KEY PERSONNEL CONTACT INFORMATION FCG Consultants, 22885 Savi Ranch Pkwy., Suite G, Yorba Linda, CA 92887 714.312.0317 Fax 714.312.0793 Abdallah Fakhouri, PE Project Mgr. / Resident Eng. (714) 312-0317 ab.fakhouri@fcgconsultants.com Bill Viets, PE Construction Manager (714) 312-0317 Bill.viets@fcgconsultants.com Mohamed Taleb, PE Structures Representative (714) 312-0317 mohamed.taleb@fcgconsultants.com Cary Brobeck Construction Inspector (714) 312-0317 cary.brobeck@fcgconsultants.com Hamid Shekaramiz, PE Structures Inspector (714) 312-0317 hamid.sh@fcgconsultants.com Frank Miller Facilities inspector (562) 498-0808 fmiller@pmcsgroup.net Eric Hess Facilities Inspector (562) 498-0808 ehess@pmcsgroup.net Ron Brahs Permit Inspector (714) 312-0317 ron.brahs@fcgconsultants.com Timmy To Electrical Inspector (714) 312-0317 timmy.to@fcgconsultants.com Jaime Engler, PE, QSD SWPPP Inspector (714) 312-0317 jaime.engler@fcgconsultants.com Tom Cartier Mechanical Inspector (714) 312-0317 tom.cartier@fcgconsultants.com Josefa Salinas Public Outreach Specialist (909) 855-1807 josefas@rtengineering.com Amber Christian Office Engineer (714) 312-0317 amber.christian@fcgconsultants.com Sam Elachkar Scheduler (714) 312-0317 sam.elachkar@fcgconsultants.com Our Team is available and knowledgeable in the areas of grading, street paving, electrical, dry utilities, Federal and State inspection and administration, budgeting, project coordination, traffic engineering, striping, storm drains, hydraulics, construction methods, observation, and practices, materials testing, utility and outside agency coordination, project close out, safe work zones, QSP/QSD, MS4 permit compliance, and general construction management, inspection, and administration of a construction project for the City of Downey. Page | 4 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 SECTION 4: TEAM ORGANIZATION PROPOSED TEAM The FCG Team is made up of professionals with extensive experience and knowledge to accomplish the City’s goals for infrastructure improvement. FCG is committed to providing expert resources at all levels required to complete the construction management and inspection portion of your project successfully. Key personnel identified in this proposal will be available to the extent required by the construction work to complete construction management and inspection services for the project duration. No person designated as “key” to the project shall be removed or replaced without the prior written consent from the City of Downey. Abdallah Fakhouri, PE Project Manager Edwin J. Norris, PE City of Downey Tom Cartier, PE Daniel Flores Timmy To Leon Fuentes Hamid Shekaramiz, PE John Caron Darren Hopper MECHANICAL INSPECTORSELECTRICAL INSPECTORS CONSTRUCTION INSPECTORS John Spath Anthony Moussa Christian Ott James Bonelli Tim Cianci Luis Ruz Tony Alfakhouri STRUCTURES INSPECTORS SWPPP INSPECTORS FACILITIES INSPECTORS Jaime Engler, PE Timmy To Frank Miller (PMCS) Eric Hess (PMCS) William Garcia PM’S / RE’S / CM’S Abdallah Fakhouri, PE Bill Viets, PE Nizar Saker, PE Walid Naouchi, PE Joel Shandrick, CCM Rick Hijazi, PE (PMCS) Regina Talamontez, PE (RTEA) SCHEDULERSOFFICE ENGINEERS Sam Elachkar Kevin Byers Amber Christian Wendy Garnone STUCTURES REPRESENTATIVE Mohamed Taleb, PE Mulugheta Belay, PE Bahman Abbassi, PE Hamid Shekaramiz, PE David Cooper, PE Alex Alatorre, PE Michael St. Jacques, PE PUBLIC OUTREACH Josefa Salinas (RTEA) Raquel Cortez (RTEA) Legends FCG Consultants, Inc. -FCG PMCS Group –PMCS RT Engineering & Associates –RTEA PERMIT INSPECTORS Ron Brahs Bill Fernandez Christian Ott Page | 5 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 SUBCONSULTANTS The FCG team would not be complete without the added value of our sub-consultants, PMCS Group (PMCS), and RT Engineering & Associates, Inc. (RTEA). Company Name Key Personnel Role PMCS Group, Inc. (PMCS) 2600 E. Pacific Coast Hwy., Ste. 180 Long Beach, CA 90804 Mr. Rick Hijazi Senior Project Manager rhijazi@pmcsgroup.net Construction Management Inspection Services PMCS Group (PMCS), a full-service project, construction management and inspection services firm. We serve such clients as the City of Los Angeles, Department of Public Works (LADPW), Bureau of Engineering and Bureau of Sanitation; Los Angeles World Airport (LAWA); County of Riverside, Transportation Department; Seal Beach Navy Base; County of Los Angeles, Department of Public Works; City of Long Beach Airport; Port of Long Beach; Los Angeles Unified School District (LAUSD); Los Angeles Community College District (LACCD); and Los Angeles Department of Water and Power. Company Name Key Personnel Role RT Engineering & Associates, Inc. (RTEA) 1911 S. Commercenter E. #205 San Bernardino, CA 92408 Ms. Regina Talamantez, PE Resident Engineer reginat@rtengineering.net Construction Management Inspection Services RT Engineering & Associates, Inc. (RTEA), a California S Corporation was founding in 2011 as a Hispanic, woman engineered-owned firm and is certified as an SBE, MBE, WBE, DBE firm. RTEA provides professional engineering services in program management, construction management, design, design review, environmental, public outreach and community relations. ABF has worked with RTEA since its inception as a company and prior to that with its staff for over 15 years. We have a strong and cohesive working relationship. Page | 6 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Abdallah Fakhouri, PE Project Manager / Resident Engineer Mr. Fakhouri is a registered professional engineer licensed in the State of California, and a former resident engineer of Caltrans District 7, Los Angeles, CA. He has over 22 years of experience in construction engineering and construction inspection, 15 years of which he spent as a consultant contract manager and resident engineer for FCG and other consultant firms, as well as 7 years of experience as a project engineer and consultant construction inspector. Mr. Fakhouri’s consultant contract manager work includes performing as a consultant contract manager, project manager, construction manager, resident engineer, project engineer, and construction inspector. Project Management Experience: As a Project Manager and Resident Engineer, duties included ensuring all deliverables satisfied the acceptance tests and criteria set forth in provisions and specifications, supervising, training, and directing the field and office personnel, conducting interviews and assigning qualified personnel to complete work as required, maintaining project files for project control, organizing, facilitating, and attending meetings, implementing and maintaining quality control and quality assurance procedures to manage conflicts and issues, ensuring safety compliance, producing monthly invoices and reports in a timely manner, ensuring accuracy and completion of invoices before billing clients, managing subconsultants, managing contract and construction budgets, monitoring and maintaining required DBE involvement and reporting, and ensuring compliance with provisions and specifications. Agency Project Role Start / End Dates City of Corona Storm Drain Line 52 Replacement Prime - PM/RE 4/2017 – Ongoing City of Whittier Beverly Blvd. Traffic Safety Project Prime - PM/RE 10/2016 – 4/2017 City of Norwalk Alondra Blvd. Street Improvements Prime - PM/RE 7/2015 – 5/2016 City of Norwalk Firestone Blvd. Bridge Replacement Prime - PM/RE 5/2014 – 11/2015 Caltrans District 7 - LA 3 On-Call Contracts – Various Jobs Sub - PM/RE 1/2013 – Ongoing Caltrans District 8 – SBD/Riverside 3 On-Call Contracts – Various Jobs Sub - PM/RE 1/2013 – Ongoing Caltrans District 11 – SD/Imperial 3 On-Call Contracts – Various Jobs Sub - PM 1/2013 – Ongoing Caltrans Structures – D 7, 8, 9, & 12 4 On-Call Contracts – Various Jobs Sub - PM 1/2013 – Ongoing Vista Irrigation District On-Call Contract – Various Jobs Sub - PM 1/2013 – Ongoing City of Irvine On-Call Contract – Various Jobs Prime - PM 1/2013 – Ongoing LAUSD / LACCD 2 On-Call Contracts – Various Jobs Sub - PM 1/2013 – Ongoing POLB / POLA 2 On-Call Contracts – Various Jobs Sub - PM 1/2013 – Ongoing City of San Diego 1 On-Call Contract – Various Jobs Prime - PM 1/2013 – Ongoing City of Santa Monica 1 On-Call Contract – Various Jobs Sub - PM 1/2013 – Ongoing City of Delano Woollomes Ave Interchange Sub - PM/RE 5/2012 – 12/2015 City of Newport Beach Jamboree Bridge Widening / SR-73 Sub - PM/RE 3/2011 – 5/2012 EDUCATION MS, Civil Engineering, California State University, Long Beach, CA BS, Civil Engineering, California State University, Long Beach, CA REGISTRATION CA, Civil Engineer, No. C60844 Page | 7 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 BILL VIETS, PE Resident Engineer Mr. Viets has over 30 years of experience in design, project management, and construction management of large complex project all around the world. He has managed various projects from preconception to construction phases. His responsibilities include supervising contract management team, and performing constructability reviews on the construction contracts, overseeing all aspects of daily construction management, scheduling meetings, contract administration and field quality control of the contractors’ operations. Work also included contract administration, staff supervision, coordination with utility companies, plan checking, review of cost estimates as well as consultant and contractor invoices and utilities, negotiation of change orders, review of RFI’s, submittals, and schedule. RELEVANT EXPERIENCE Long Beach Airport Expansion Project, Long Beach, CA Central Artery / Tunnel Project, City of Boston, MA Ted Williams Tunnel (TWT) beneath Boston Harbor, City of Boston, MA Mohamad Taleb, PE Structures Representative Mr. Taleb is a registered Civil Engineer with over 28 years of experience working with Caltrans Office of Structures and Consultant firms on a large variety of projects such as public works, highway, and bridge projects. He is familiar with the State of California Standard Plans and Specs, Construction Manual, CR&P Manual, Falsework Manual, AASHTO Standards and FHWA document control and regulations. Mr. Taleb has extensive experience with shop drawings; shoring plans; falsework plans; concrete mix designs; and structure detail plans, preparing and verifying structure design calculations, and constructability. His experience also includes field inspection of excavation, bridge and structures demo, rebar placement, structure forms, CIDH Piles, pile driving, falsework installation, shoring installation, concrete placement, bridge deck construction, and structural backfill. RELEVANT EXPERIENCE San Pablo Dam Road Pedestrian Over Crossing, Caltrans District 4, Contra Costa County, CA SR-58 Hinkley Expressway Project, Caltrans D8, San Bernardino, CA I-5 / Carmenita Road Interchange Reconstruction Project, Caltrans District 7, Los Angeles CA EDUCATION BS Civil Engineering, California State University San Francisco, CA REGISTRATION CA, Civil Engineering No. C73327 EDUCATION MS, Civil Engineering, California Polytechnic, San Luis Obispo, CA CERTIFICATION CA, Civil Engineer, No. C27356 Page | 8 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 John Spath Construction Manager / Inspector Mr. Spath has served as an experienced Construction Manager and Project Manager with over 40 years’ experience in the public works, military and private sectors. His experience has included, but not been limited to, both on-site and off-site grading, new road construction, grind and re-surface, in addition to sidewalks, ADA ramps, and curb and gutter. In his roles as, Mr. Spath has been responsible for ensuring all deliverables satisfied the acceptance tests and criteria set forth in provisions and specifications, supervising, training, and directing the field and office personnel, conducting interviews and assigning qualified personnel to complete work as required, maintaining project files for project control, organizing, facilitating, and attending meetings, and implementing and maintaining quality control and quality assurance procedures to manage conflicts and issues. RELEVANT EXPERIENCE Superblock Parking Garage and Street Improvements Project – City of Brea, Brea, CA Fox Entertainment Complex Restoration Project – City of Riverside, Riverside, CA Bayside Campus Improvement Project for Hilton and Fairfield, San Diego, CA Hamid Shekaramiz, PE Structures Inspector Mr. Shekaramiz is a registered Civil Engineer with over 7 years of experience on a variety of projects that included Structures and Civil construction. Mr. Shekaramiz’s construction inspection includes but not limited to inspection of traffic control, signage, traffic signal, striping, ADA compliance, MBGR, removals, roadway excavation, sub base, base, material sampling, earthwork, curb and gutter, driveways, HMA, concrete barriers, safety, SWPPP, and landscaping. His structure inspection included pile driving, falsework, shoring, retaining walls, sound walls, CIDH, barriers, columns, rebar, bridge deck, and railing. RELEVANT EXPERIENCE SR-91 CIP Design-Build Project, Caltrans D8, Riverside County, CA I-5/Carmenita Road Interchange Reconstruction Project, Caltrans District 7, Los Angeles CA San Gabriel Grade Separation Construction Project-LA, Alameda Corridor East, Los Angeles CA EDUCATION AA Construction Management, Citrus College, CA CERTIFICATION California Test Method: 125, 533, 539, 540, 541, and 557; ACI Grade I Certification No. 01188683 EDUCATION BS Structural Engineering, UC Irvine, CA MS, Civil Engineering, University of California, Berkeley, CA REGISTRATIONS CA, Civil Engineer No. 82784 Page | 9 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 FRANK MILLER Facility / Building Inspector Mr. Miller has over 30 years of experience with government entities, environmental awareness and contract management as an inspector for the City of Los Angeles Department of Public Works. He has developed Quality Control and Quality Assurance skills that consist of review of submittals, confirm material and equipment delivery and installation, review and approve payment application, review of as build drawings, monitor safety, prepare daily reports, monitor contractor quality control program and coordinating all specialty required inspection. His skills include supervision, team building, communication and problem solving. RELEVANT EXPERIENCE LADPW Marina Del Rey Parking Lot 9 Stormwater Best Management Practices Project, City of Marina Del Ray, CA Pacific Palisades Public Library, City of Pacific Palisades, CA San Pedro Fire Station, City of San Pedro, CA Ron Brahs Permits Inspector Mr. Brahs has more than 32 years of experience in construction on a number of projects for local cities and government agencies. He has worked on a large variety of public works project including but not limited to: street improvements including widening and reconstruction, HMA and concrete pavement, drainage, utilities, and water/wastewater improvements. His experience includes inspecting water and sewer installations, repair work on underground utilities, installation of water lines, sewer and storm drains. Duties include but not limited to construction inspection and Quality Control, daily reports, compliance enforcement of plans and specifications and certificates, review change orders, review submittals and RFI’s, safety compliance, preparing punch list, and project closeout. Mr. Brahs has extensive experience with MUTCD, Green Book, and APWA Standards. RELEVANT EXPERIENCE Sub-Development Infrastructure Build-Out Project, Azusa, CA Water and Sewer Line Installation, Riverside, CA Citywide Sewer Manhole and Water Lateral Replacement, San Diego, CA EDUCATION BA Business Administration EDUCATION Civil Engineering Classes, California Coast University, CA CERTIFICATION City of Los Angeles Registered Deputy Building Inspector, SS/W, SC, RM, 1987 – 2016 City of Los Angeles License PO11975 Page | 10 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Timmy To Electrical Inspector Mr. To has more than 27 years of construction inspection and design. He has worked on a large variety of projects that included but not limited to: highway/roadway widening and improvements, bridge widening and reconstruction, local street modifications, signal modifications, electrical system upgrades, etc. Duties included performing construction inspection and Quality Control, producing daily reports and quantities take-offs, reviewing and monitoring schedule of work, enforcing compliance with plans and specifications and certificates, reviewing shop drawings, reviewing change orders, reviewing submittals and RFI’s, enforcing safety compliance, preparing and reviewing as-built plans, and preparing final punch list. He has knowledge of the Caltrans Local Assistance Procedures Manual, Caltrans Standard Plans and Specifications, Caltrans Construction Manual, OSHA, MUTCD, and Green Book. RELEVANT EXPERIENCE Beverly Boulevard Traffic Safety and Lighting Improvements Project, Caltrans District 7, Whittier, CA Various Improvements Projects in Los Angeles County, Caltrans District 7, Los Angeles, CA West County HOV at I-405/605/SR-22 Interchange Widening and Improvements, Caltrans Districts 7 & 12 Jamie Engler, PE, QSD SWPPP / Permits Inspector Mr. Engler has more than 14 years experience in construction and SWPPP inspection. He worked on a large variety of public works projects including, but not limited to, highway widening and improvements, bridge rehabilittion, widening and reconstruction, HMA and JPCP paving, drainage, utility construction and relocation, and water/sewer projects. Mr. Engler also has experience in SWPPP inspection per NPDES requirements, office engineering and document control, daily diaries, pay estimates, change orders, submittals and RFI’s, claims, and constructability reviewing. Mr. Engler has extensive experience with Caltrans Standard Plans and Specifications, Caltrans Construction Manual, Caltrans Structures Manual, Caltrans Safety Manual, Caltrans Design Manual, OSHA Safety Manual, Traffic Control Manual, WATCH Manual, Green Book, and APWA Standards. RELEVANT EXPERIENCE SR-58 Hinkley 4-Lane Expressway Phase 2, Caltrans District 8, CA Firestone Blvd. Bridge Replacement Project, City of Norwalk/Downey/Caltrans District 7, CA SR-22 Design-Build Highway Widening Project, OCTA / Caltrans District 12, CA EDUCATION BS Electrical Engineering, Cal Poly, Pomona, CA REGISTRATION Engineer in Training EDUCATION MS/BS Civil Engineering, California State University Fullerton, CA REGISTRATION CA, Civil Engineering No. C69858 CERTIFICATION QSD Certificate No. C69858 YEARS OF EXPERIENCE: X Page | 11 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Tom Cartier, PE Mechanical Inspector Mr. Cartier has more than 25 years of design, construction inspection, electrical inspection, and transportation engineering experience. He has worked on a large variety of projects that include highway/roadway widening and improvements, bridge widening and reconstruction, and utility construction and relocation. His electrical experience includes approving/rejecting substation and switchgear designs, reviewing lighting and power calculations for luminaries and RTUs, SCADA and traffic signals, performing photometric calculations, reviewing installations and procedures, and reviewing of HV cables, low voltage cables, valves, manholes, conduits and raceways to ensure that all comply with specifications. He can interpret contract specifications and has extensive knowledge of the Caltrans Standard Plans and Specifications, Caltrans Construction Manual, OSHA Manual, Traffic Control Manual, Green Book, UBC, Title 24, and ADA. RELEVANT EXPERIENCE Scripps La Jolla Cardiovascular Hospital Commissioning, San Diego, CA City of San Diego Traffic Signal Interconnect, FAU, San Diego, CA Montgomery Field Airport Lighting Upgrades, San Diego, CA Josefa Salinas Public Relations Specialist Josefa Salinas has worked in the community and public relations industry for over 24 years and has held several highly visible, responsible positions in the community, government and media relations in Los Angeles County. As an expert in media relations and strategic planning, she leads client projects in strategic communications, marketing, government relations, media outreach and civic engagement. Josefa is skilled in “big-picture” outreach strategy as well as on-the-ground implementation. She is creative, innovative, and goal-oriented, and she makes client satisfaction her priority. She currently serves as the President of the LA Public Library Commission and has strong relationships with LA City Council districts and public officials from local to congressional members on both the national and state levels. RELEVANT EXPERIENCE ACE – Various project, Los Angeles, CA LACMTA - Universal City Pedestrian Overcrossing, Los Angeles, CA City of Indio Andrew Jackson Safety Improvements. (SRTS), Indio, CA EDUCATION BS Electrical Engineering, University of El Paso, TX CERTIFICATION California Professional Engineer, Electrical #E13357 California Professional Engineer, Mechanical #M35942 EDUCATION BA, Political Science & Psychology, University of Michigan AA, Television & Radio Broadcasting, College of San Mateo, San Mateo, CA Page | 12 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Amber Christian Office Engineer Ms. Christian has over nine years of experience in the construction engineering field as a construction inspector and office engineer. Ms. Christian has inspected Traffic Control, LCS, signage, striping, MBGR, safety, SWPPP and WPCP items and BMP’s. Her construction experience includes concrete removals, ADL removals, asphalt removals, roadway excavation, trenching, storm drains, sewer lines, water lines, water treatment facilities, CIPP storm drains, slide repairs, mechanically stabilized earth walls, minor concrete, minor structures, sidewalk curb and gutter, ADA compliance, LCB, JPCP, HMA, concrete barriers, and landscaping and irrigation. RELEVANT EXPERIENCE I-15 / Mountain Pass Bridge Gap Projects, Caltrans D8, Mountain Pass, CA I-40 Lane Rehabilitation Project, Caltrans D8, Needles, CA I-15 Truck Descending Lanes Project, Caltrans D8, Mt. Pass, CA Sam Elachkar Scheduler Mr. Elachkar has more than 7 years of experience in project management, business planning and management, and planning and scheduling. Mr. Elachkar has worked both as a Project Engineer and Scheduler. He has gained his experience working in the capacity of a Scheduler and Cost Engineer. Duties include but not limited to overseeing construction of various heavy civil projects, ensured completion of contract within budget and time allocations, monitor multiple construction schedules and budgeted costs, review multiple contractors schedule and confirm baseline progress, evaluate CPM schedules and provide client with time impact analysis, review change orders & extra work tickets, prepared monthly progress reports, conducted weekly update meeting with contractor, and resolved contractors’ claims during the life of projects. RELEVANT EXPERIENCE White Avenue Road Improvements Projects, City of Pomona Phases 1-4 Water Main & Roadway Replacement Pr ojects, City of Pomona/Caltrans D7&8 Water Supply Pipeline & Roadway Replacement Project, Mojave Water Agency EDUCATION BS Construction Management CERTIFICATION QSD/QSP # 21955 CPESC Envirocert., CA # 6668 CTM 125, 533, 539, 540 EDUCATION MS Civil Engineering, California State University, Fullerton, CA BS Civil Engineering, Cal Poly University, Pomona, CA Page | 13 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 SECTION 5: RELEVANT PROJECTS AND REFERENCES Project No. 1 | Superblock Parking Garage and Street Improvements Project | Brea, CA Construction Cost: $13.2 Million Project Dates: 06/2016 – 1/2018 Construction Schedule: 18 Months Staff Role: Construction Management and Inspection FCG Staff: John Spath – Construction Manager and Lead Construction Inspector Reference: Steve Kooyman, PE, City of Brea, CA Project consisted of construction of a 485-space parking garage and included street repairs. The project also included new sidewalks, curbs, gutters and ADA compliant ramps. A new service/fire access roadway was created between buildings. All utilities were relocated under the new roadway. The roadway then graded and prepared to receive new AC and fire lane stripping. Duties included, but were not limited to, construction management and inspection of various items of work, office engineering, performing constructability and bid-ability reviews, attending pre-bid and weekly meetings, producing daily diaries and quantities, taking photos daily, coordinating materials sampling and testing, coordinating lane closures with residents and businesses, reviewing submittals, RFI’s, change orders, and reports. Project No. 2 | Beverly Boulevard Traffic Safety and Lighting Improvements Project | Whittier, CA Construction Cost: $2.2 Million Project Dates: 11/2016 – 05/2017 Construction Schedule: 6 Months Staff Role: Construction Management and Inspection FCG Staff: Abdallah Fakhouri – PM/RE Anthony Moussa and Timmy To – Inspectors Reference: Carl Hassel, PE, City of Whittier, CA Project consisted of removal and placement of PCC pavement, slurry seal, raised median, pedestrian crossing, street lighting, electrical, sidewalk, ADA ramps, striping, and landscape. Duties included, but were not limited to, construction management and Inspection of various items of work, office engineering, performing constructability and bid-ability reviews, attending pre-bid and weekly meetings, producing daily diaries and quantities, taking photos daily, coordinating materials sampling and testing, coordinating lane closures with residents and businesses, reviewing submittals, RFI’s, change orders, and reports. Project No. 3 | Alondra Boulevard Lighting Improvements and Rehabilitation Project | Norwalk, CA Construction Cost: $1.5 Million Project Dates: 06/2015 – 12/2016 Construction Schedule: 6 Months Staff Role: Construction Management and Inspection FCG Staff: Abdallah Fakhouri – PM/RE Anthony Moussa – Inspector Reference: Bill Zimmerman, PE, City of Norwalk, CA Project consisted of widening four lanes between Shoemaker and Pioneer including grind and pave RHMA, slurry seal, sidewalk, driveways, ADA ramps, median, electrical, striping and landscape. Duties included construction management and inspection of various items of work, office engineering, performing constructability and bid-ability reviews, attending pre-bid and weekly meetings, producing daily diaries and quantities, taking photos daily, coordinating materials sampling and testing, coordinating lane closures with residents and businesses, reviewing submittals, RFI’s, change orders, and reports. Page | 14 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Project No. 4 | Firestone Boulevard Over San Gabriel River Bridge Replacement Project | Norwalk, CA Construction Cost: $12.0 Million Project Dates: 05/2014 – 02/2016 Construction Schedule: 21 Months Staff Role: Construction Management and Inspection FCG Staff: Abdallah Fakhouri – PM/RE Cary Brobeck, Jaime Engler, James Bonelli, and Anthony Moussa – Inspectors Reference: Mazen Dabboussi, Caltrans District 7, CA Project consisted of demolition and replacement of the bridge, HMA, slurry seal, sidewalk, curb and gutter, electrical, fiber optic, traffic control, water/sewer line, striping, SWPPP, and safety. Duties included, construction management and inspection of various items of work, office engineering, performing constructability and bid-ability reviews, attending pre-bid and weekly meetings, producing daily diaries and quantities, taking photos daily, coordinating materials sampling and testing, coordinating lane closures with residents and businesses, reviewing submittals, RFI’s, change orders, and reports. Project No. 5 | Corona Storm Drain Line 52 Project – Ongoing | Corona, CA Construction Cost: $3.5 Million Project Dates: 02/2016 – Ongoing Construction Schedule: Ongoing Staff Role: Construction Management and Inspection FCG Staff: Abdallah Fakhouri – PM/RE Jim Bonelli, Tony Alfakhouri – Inspectors Reference: Linda Bazmi, City of Corona, CA Project consisted of construction of a concrete 52 inch storm drain line; sewer lines; and waterlines, fiber optic lines, street lighting, traffic signals, video detection, channel reconstruction, HMA paving, parkway, sidewalks, curb and gutter, driveways, irrigation, landscape, and planting. Duties included, but were not limited to, construction management and inspection of various items of work, office engineering, performing constructability and bid-ability reviews, attending pre-bid and weekly meetings, producing daily diaries and quantities, taking photos daily, coordinating materials sampling and testing, coordinating lane closures with residents and businesses, reviewing submittals, RFI’s, change orders, and reports. Page | 15 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 REFERENCES Reference 1 Name and Title: Mazen Dabboussi – Local Assistance Area Engineer Company: Caltrans District 7 – Los Angeles, CA Address: 100 S Main Street, Los Angeles, CA 90012 Phone Number/Email: 323-497-1315, mazen.a.dabboussi@dot.ca.gov Project: Firestone Staff: Alondra Staff: Firestone Bridge Replacement Project and Alondra Boulevard Rehabilitation Project Abdallah Fakhouri, Cary Brobeck, Jaime Engler, Anthony Moussa, and Jim Bonelli Abdallah Fakhouri, Anthony Moussa, and Mamon Subeh Reference 2 Name and Title: Bill Zimmerman, PE – City Engineer Company: City of Norwalk, CA Address: 12700 Norwalk Boulevard, Norwalk, CA 90650 Phone Number/Email: 562-929-5727, bzimmerman@norwalkca.gov Project: Staff: Alondra Boulevard Lighting Improvements and Rehabilitation Project Abdallah Fakhouri, Anthony Moussa, and Mamon Subeh Reference 3 Name and Title: Linda Bazmi – Senior Engineer Company: City of Corona, CA Address: 400 S. Vicentia Avenue, Corona, CA 92882 Phone Number/Email: 951-739-4960, Linda.Bazmi@ci.corona.ca.us Project: Staff: Corona Storm Drain Line 52 Project Abdallah Fakhouri and Jim Bonelli Reference 4 Name and Title: Carl Hassel, PE – Capital Improvements Administrator Company: City of Whittier – Whittier, CA Address: 13230 Penn Street, Whittier, CA 90602 Phone Number/Email: 562-567-9302, chassel@cityofwhittier.org Project: Staff: Beverly Boulevard Traffic Safety and Lighting Improvements Project Abdallah Fakhouri, Anthony Moussa, and Timmy To Reference 5 Name and Title: Peter M Lee, PE – Resident Engineer Company: Caltrans District 7 – Los Angeles, CA Address: 100 S Main Street, Los Angeles, CA 90012 Telephone Number: 626-905-1710, peter.m.lee@dot.ca.gov Project: Staff: I-5 South / Carmenita Avenue Interchange Reconstruction Project Abdallah Fakhouri, Mohammed Taleb, and Tony Alfakhouri Reference 6 Name and Title: Omar Moheize, PE – Principal Civil Engineer Company: City of Burbank – Burbank, CA Address: 150 North Third Street, Burbank, CA 91502 Phone Number/Email: 818-238-3943, omoheize@burbankca.gov Project: Staff: Various Locations Street Paving and Flatwork Improvements Project Abdallah Fakhouri, Ron Brahs, Tony Alfakhouri, and Anthony Moussa Reference 7 Name and Title: Michael Sinacori, PE – Assistant City Engineer Company: City of Newport Beach – Newport Beach, CA Address: 100 Civic Center Drive, Newport Beach, CA Phone Number/Email: 949-644-3342, MSinacori@newportbeachca.gov Project: NB Jamboree Widening and Rehabilitation Project Page | 16 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Staff: Abdallah Fakhouri, Jaime Engler, and Darren Hopper SECTION 6: PROJECT MANAGEMENT UNDERSTANDING AND APPROACH PROJECT UNDERSTANDING The City of Downey is requesting Statements of Qualifications from qualified firms to provide on-call public works construction management and inspection services for small to large size projects and tasks, consistent with the City’s current and future needs. We have performed these tasks and understand the work required to accomplish the City’s goals successfully. Although our approach can vary from project to project depending on the specific needs of the client, the following is our generic approach to managing our contracts, construction management, inspection and support on projects. Coordination FCG staff has extensive experience with multiple agencies such as Caltrans District 7, Amtrak, Metrolink, adjacent cities and will make sure that all involved parties are informed at all times. We have extensive experience in managing multiplie projects at one time as evidenced by our concurrent on-call contracts. Whether it is a subconsultant or FCG staff, our Project Manager chooses the right person with the relevant experience and availability for the needs of our clients. Many of our staff are cross-trained and have the support of office staff and schedule support to ensure their jobsite success with the least impact on the clients budget. Tools Our team members have wide and varying experience with software and various internet tools such as sharepoint, dropbox, Primavera, Procore, Microsoft Project, etc., that help them with documentation, tracking and project controls. Residents and Property Owners The residents and property owners may be impacted during construction through the closure of their driveway entrances. As needed, FCG staff will communicate and coordinate with all affected property owners and residents and keep them well informed of the status of the project to allow them to anticipate activities, deliveries, and to project time of completion. Adjacent Projects FCG staff will work together to coordinate the completion of the Contractors or private development portion of work. FCG staff will coordinate and assist the City with coordination on any other service and will perform the work as part of their commitment to the City. Typical capital improvement projects may include, but will not be limited to: • Major Street Resurfacing /Overlay projects • Building Construction and Renovations • Large Slurry Seal projects • Concrete – Curb & Gutter, Sidewalks, ADA Ramps • Water line Replacements, Directional Drilling • Sewer/Storm Replacements/Improvements • Utility Undergrounding • Roadway Reconstruction • Streetscapes • Traffic Signal Installation • Landscape/Park Improvements Page | 17 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 • Stormwater (SWPPP) inspection and compliance APPROACH Partnering, Management and Quality Staff augmentation is very important to each client agency due to a lack of funding for procurement of agency staff, and/or the immediate need based on the number of projects that need funding. FCG understands that a well-defined communication plan can achieve better results with the agencies. As the need for additional staff increases, our responsiveness to meet the need is imperative for the success of the Client. Responsiveness to immediate and/or planned need for staffing is key since the need may not always be planned for. We understand the need, as well as the procurement process, for agencies to staff projects at all times and at many levels. FCG will not undermine quality at any price; in fact, our work is completed with high regard to safety, quality, time, budget, and with little to no impact on the environment. Quality Assurance Plan The FCG team is very familiar with Local Assistance Procedures Manual, as well as the City of Downey’s Quality Assurance Program in regard to Materials Testing. We are prepared to implement the City’s plan to ensure the materials and workmanship incorporated into each highway construction project undertaken by the City of Downey are in confirmance with the contract specifications. We have read and understand the QAP shall apply to Federal-aid projects off the National Highway System (NHS) and for transportation projects not utilizing Federal-aid funds. Scope of Work As a company we understand the scope of work required of on-call contracts as we are currently working on multiple similar contracts as both a prime and subconsultant. FCG staff have participated on these contracts at many levels and provided staff with little to no need for training as work began. Staffing From senior level to office engineers and everything between, all of our staff have provided top notch service to our clients at every level. The Project Team Diagram illustrates our team’s capability of providing highly capable staff at any level and at competitive rates. In an effort to ensure client satisfaction and job success, Mr. Fakhouri tracks all staff work and continuously meets with the client agency. Execution and Delivery FCG staff works diligently to perform the contractual work, as well as the individual task orders and deliver the product at or above the agencies expectation each time. FCG’s Project Manager Mr. Fakhouri will continuously ensure that all staff are performing at the highest level and providing best service. At the completion of each task order, Mr. Fakhouri will assess the service provided and meet with the City to ensure full satisfaction of the work provided and will continue to assemble the best team for staffing. Mr. Fakhouri will provide the City a comprehensive report monthly of the services (tracked hourly). Partnering Staff Augmentation Management Responsiveness Communication Quality Agency Process and Procedures Management Approach Safety Quality Time Budget Environment Page | 18 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 SECTION 7: SCOPE OF WORK PROGRAM CONSTRUCTION MANAGEMENT, MATERIALS TESTING AND INSPECTION TASKS Construction Contract Administration The backbone of the FCG’s plan is based upon a sound Construction Management Plan (CMP) which is based on industry standards; Green Book, APWA, Local and County, FHWA, and Caltrans Standards and Local Assistance Procedures. Preconstruction Condition Survey Documenting the site prior to construction is essential. Proper documentation can often mitigate disputes between the City, contractor, and other project stakeholders. Preconstruction Conference The purpose of this meeting is to introduce the project team members to each other, to establish communication protocols and identify lines of communication. FCG staff will work with City staff to know the project and the documents and are committed to its success. Daily Construction Observation Reports All personnel will be documenting the progress of the work done by the contractor and subcontractors will write daily reports. Daily reports will include labor force on the field, work activities, material used, equipment on the site, CCO works, tracking all work that may be in dispute, and any important conversation with the contractor and subcontractors based on the Local Assistance Procedures Manual. Progress Reports FCG staff will provide Monthly Progress Quantities to the City, which consists of the monthly project status report. This report will address the critical issues affecting the Project and provide recommendations for resolution to the City for its approval as well as a summary of construction progress and cost management. Submittal Processing FCG staff will review project submittals and recommend approval, and a log will be established at the beginning of the Project and will be continuously maintained and updated. Request for Information (RFI’S) FCG staff will process, track, and document Project Requests for Information (RFI) and responses and an RFI log will be established at the beginning of the Project and will be continuously maintained and updated. The RFI Log will identify the parties responsible for review and response.. Weekly Statement of Working Days The Statement of Working Days will show total contract time from first to last chargeable day, weather days, holiday days, additional CCO days, and controlling activities for each week to compare to the Contractor’s CPM Schedule to monitor progress and performance. Document Tracking System FCG staff will develop, implement, and manage a project filing system for all documents that is consistent with the FHWA and Caltrans filing system. Page | 19 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Schedule Review Baseline Schedule FCG staff will review Baseline Schedule for Logic, Durations, Float, Critical Dates, and Phasing. Monthly Schedule Updates FCG staff will review the contractor’s preliminary schedule, the baseline schedule, and all schedule updates, including time impact analyses submitted by the contractor under the terms of the construction contract to identify any potential or actual delays to the approved schedule. Photographs FCG staff will take and file photos Prior to, During, and Post Construction. Contract Conformance FCG staff will observe the construction process, but to make sure the processes and procedures employed by the Contractor will result in full compliance with the contract documents Construction Contract Administration FCG staff will implement the Construction Management Plan (CMP) and Quality Assurance Program (QAP). Payment Recommendations FCG will review and approve Contractor’s cost breakdown and schedule of values for all lump sum items. MAP-21 (Buy America) Requirements and Compliance FCG staff will ensure full compliance to Buy-America Requirements by performing source inspection of materials; request Certificates of Compliance from the Contracts, and inspection tags and keep on file as needed. Claims Review FCG staff will provide recommendations to the City regarding claims avoidance strategies as well as provide review of all Notice of Potential Claim and provide recommendation of actions to the City. Contract Labor Compliance FCG staff will ensure compliance to David-Bacon Act by conducting employee interviews with the Contractor’s laborers to verify labor compliance requirements as well as reviewing certified payroll and maintaining records. Risk Factor Monitoring FCG staff will prepare ahead and look for opportunities to minimize greater problems in the future of the project. Safe Conditions Public Safety is extremely important to FCG staff and there is nothing more important than the safety of the construction team and the public Coordination with Residents and Property Owners FCG staff understands the role of communication and Coordination. Utility Identification & Tracing FCG staff will utilize a utility tracking system, which will list each utility, the owner, the owner's contact person, and to-date disposition of any action required of the utility. Contract Special Provisions FCG staff will provide the necessary communication to assure effective coordination. Page | 20 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Utility Coordination FCG staff will meet with all the utility companies to identify and coordinate their required scope of work to relocate or protect in-place their facilities with the contractor’s schedule. Agency Coordination FCG staff will coordinate and communicate all work with agencies from the beginning of the project until the work is complete and the project is accepted. Storm Water Pollution Prevention Plan (SWPPP) FCG staff will review and coordinate contractor’s submitted SWPPP with the SMARTS system. Environmental Monitoring and Mitigation FCG staff will closely monitor the Contractor’s operations to assure the Contractor’s compliance with the permits and mitigation measures identified within the environmental approval document. Materials and Workmanship FCG staff will ensure full compliance of material delivered and placed during construction and will follow the FHWA and Caltrans guidelines for sampling, handling, transporting, curing, and testing. Documentation Interpretation & Technical Assistance FCG staff will have no-learning curve in this area and no-surprises due to the City. Public Outreach FCG Team will provide experienced public outreach personnel to promote and coordinate project status with all materials necessary to inform and respond to public inquiries, create and maintain a project webpage, work with the Resident Engineer and City Project Manager to develop an over-all communications strategy. Change Orders FCG will process, track and document Project requests for Contract Change Orders (CCO). Cost Control FCG staff will work diligently to maintain cost records on authorized work performed under unit costs and assist the City as requested in the preparation of budgets, estimates, cost plans, cost comparisons, cash flow forecasts and cost reports. FCG staff will manage costs during construction by identifying, tracking, and resolving requests for change and monitoring construction progress daily. Workload Management FCG understands it is imperative to match the right person with the right jot to ensure it’s success. We work diligently at this while constantly working with the contractor and the client to check the work that’s ahead. Our team is cross-trainied to deliver the most service for the alloted budget. Key to this process is communication with the contractor and client to work within their schedule and producing a staffing plan to help deliver the project on-time and on-budget. Traffic Control and Handling FCG staff will review traffic detour and lane closure plans prepared by the Contractor. Page | 21 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Testing and Observation FCG staff will coordinate with the Contractor to submit Materials Inspection Requests timely to allow time to schedule staff to sample and inspect materials. Daily Extra Work Reports FCG staff will develop a Daily Extra Work Report to be signed in the field by Inspectors and the Contractor. Progress Payment Processing FCG staff will provide accurate calculations for all items of work completed to allow for progress payment. Lien Waivers FCG staff will ensure compliance with Buy-America, Quality of Materials, and Inspection tags. Construction Meetings, Schedule, and Conduct Field Meetings FCG staff will coordinate the weekly meetings with the contractor and City representatives to discuss progress. Plans, Specs, and As-Builts FCG staff will keep a set of plans labeled “As-Builts” to document all changes to the Contract Plans daily. Staff will also review the Contractor’s As-Built plans monthly prior to approval of the Progress Pay Estimate. Audits FCG staff will attend and assist the City with audits as needed and will provide proper support. Pre-Final Inspection FCG staff will continuously inspect the work and at the end of the project and will generate a “Punch List”. Final Inspection and Acceptance Upon completion of the “Punch List”, FCG staff will perform a final inspection prior to project acceptance. Final Payments and Dispute Resolution FCG will follow Guidelines for project closeout documentation and project acceptance; all documentation will be signed and filed in the project records. Delivery of As-Builts and Closeout Documents FCG staff will maintain its own as-built plans to ensure Contractor compliance with tracking and documenting all changes for the final submittal. Resource Management FCG fully understands the nature of On-Call contracts especially in terms of staffing. In an effort to staff accordingly, Project Manager will meet regularly with City staff to get a full understanding of the upcoming projects and specific city needs for every project. Product Inspection: Prior to the commencement of construction, FCG staff will thoroughly inspect all materials and products to be installed such as pipes, fittings, valves, and more. FCG staff are cross-trained with inspection of various types of projects and worked for either contractors, consulting firms, or government agencies where they gained a great deal of experience to perform Product Inspections. Some FCG staff worked for agencies in the Maintenance Divisions and are able to perform such inspections and meet all City needs prior to materials installation. The Inspector will follow verbal and written instructions; communicate clearly and concisely, both orally and in writing. Under the direction of the City Project Manager / Construction Manager, each Inspector will assume the following functional responsibilities and shall possess experience in these areas: Page | 22 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Construction Inspection Services 1. Become familiar with and review plans, specifications, and other contract and construction- related documents. Become familiar with traffic control plans, construction schedules, construction sequences, and permit requirements from other agencies. 2. Photograph, log and pre-work video prior, during, and after construction. 3. Attend pre-construction meetings and present special concerns, if any. 4. Interpret plans, specifications and regulations and ensure that contractors are following their contracts. Provide inspections to ensure projects are constructed accordingly. 5. Direct and notify construction contractors about non-compliance and correct compliance problems as soon as they are discovered. 6. Maintain daily reports/diaries photographs and video (as necessary) showing site and weather conditions; traffic control measures taken by contractors; labor, equipment and materials used; quantity of work performed; and major incidents/safety violations. Daily/reports diaries shall be submitted to City upon project completion or as requested by the City during construction. 7. Review construction progress schedules on a regular basis; verify schedules are on track with project milestones; identify deviations; and ensure that corrective actions are taken to bring projects back on schedule. 8. Provide complete measurements and calculations to administer progress payments and make recommendations for payments. 9. Review soil compaction and materials testing certifications of compliance. 10. Ensure that contractors do not install materials without approved material testing certifications. Any failed tests shall be reported and direct contractor to take correction measure. 11. Monitor contractors’ utility coordination to minimize utility conflict delays and potential need for utility relocations. Report potential conflicts to utilities, and advise them to relocate or remove conflicting utilities and report outcome to City. 12. Attend progress meetings to communicate, coordinate and resolve any issues or problems that may arise at the job site. Prepare and submit to contractor a “Weekly Statement of Calendar/Working Days” report. 13. Conduct field construction employee interviews to comply with Federal, CDBG, and Equal Employment Opportunity Law and Davis Bacon Act. 14. Coordinate with contractor access to adjacent businesses/residents during construction. Coordinate mitigation of construction impacts with contractor, City and other agencies. 15. Provide inspection of traffic control, channelization, and all other traffic-related work. 16. Ensure conformance with plans, specifications, applicable laws and codes. 17. Observe construction safety, public safety and convenience, and report discovered problems to City and the contractor. 18. Monitor compliance with the City’s National Pollutant Discharge Elimination System (NPDES) Permits and requirements, all other local, state, and federal laws and regulations. 19. Inspect for compliance with Project SWPPP Program including monitoring QSP and/or QSD duties as outlined in California State Water Resources Control Board, Storm Water General Permit and contract documents. When needed, assist the City in filing all Notice of Intent (NOI) and Notice of Termination (NOT) for Capital Improvement Projects on the California State Water Resources Control Board S.M.A.R.T.S website. 20. Monitor compliance with City’s Construction Demolition and Recycling Ordinance. 21. Maintain data for change orders and record information regarding time of dispute, time of notification by contractor, and action taken by inspector. 22. Ensure that contractors submit certified payroll reports with monthly progress payment requests. Page | 23 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Review reports for compliance with federal and state prevailing wage regulations. Ensure that labor and hours reported by contractors match inspector’s daily diaries and inspection reports. Take employee interviews for verification of payroll compliance. 23. Prepare and transmit to contractor’s correspondence related to all projects. All correspondence sent to and received from contractors shall be copied and transmitted to City. 24. Coordinate preparation and submittal of as-built plans to City upon project completion. 25. Prepare preliminary and final punch list and follow through until completion. Construction Management Services 1. Become familiar with and review plans, specifications, and other contract and construction- related documents. Become familiar with traffic control plans, construction schedules, construction sequences, and permit requirements from other agencies. 2. Arrange and conduct Pre-Construction meeting, inviting general contractor and project stakeholders. Prepare minutes of Pre-Construction meeting for distribution to all attendees. 3. Provide and maintain sufficient field personnel to administer and manage construction contract. 4. Review construction schedule, including activity sequences and duration, schedule of submittals and delivery schedule of long lead materials and equipment. Review contractor’s update and revisions as may be required to reflect actual progress of work. 5. Schedule and conduct progress meetings to discuss contract issues, procedures, progress, problems, change orders, submittals, request for information (RFIs), deficiencies and schedules. Prepare minutes of progress meetings for distribution to all attendees. 6. Process and approve submittals and process project design consultant’s review and approval. 7. Process and track RFIs, submittals, shop drawings, proposed change orders and revisions. 8. Review and evaluate proposed change orders. Review estimates for reasonableness and cost effectiveness and render recommendations to City. 9. Maintain cost accounting records on authorized work performed under contract unit costs and additional work performed based on actual costs of time (labor) and materials (T&M) and maintain progress billing. 10. Develop a reasonable cost control system, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. Identify variances between actual and estimated costs and report such variances to City regularly. 11. Assist City in coordinating services of other consultants (geotechnical, NPDES, materials testing, deputy inspection, special laboratory testing, etc.) that may be hired or selected for the project. 12. Coordinate with project designer the contractor’s requests for interpretation or clarification of meaning and intent of project plans and specifications. 13. Monitor contractor’s compliance with established safety program, respond to deficiencies and hazards, and investigate and report on accidents. 14. Track quantities of work completed for progress payment. Develop and implement procedures for review and processing of progress payment applications. Assist the City with review and certification for payment. 15. Establish procedures and monitor contractor compliance with federal and state prevailing wage regulations and requirements. 16. Perform quality assurance reviews on a regular basis and recommend changes, as necessary and manage photographic record of the project. 17. Comply with local, federal (including CDBG project) and state grant funding requirements. Assist Page | 24 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 the City in preparing and processing reimbursements. 18. Ensure contractor submits monthly certified payroll in a timely fashion to both the City and Department of Industrial Relations (DIR). Review certified payroll verification. 19. Assist in claims analysis and dispute resolution. 20. Coordinate and consolidate final inspections and punch lists for completion. Conduct final inspection/walk through with City staff. Evaluate completion of work and recommend to City when work is ready for final inspection. 21. Issue preliminary and final punch list, including schedule for punch list completion. Monitor and follow through with contractor until completion of all punch list items. 22. Secure and transmit required guarantees, certifications, affidavits, leases, easement deeds, operating & maintenance manuals, warranties and other documents as stipulated in contract documents. 23. Review and process contractor’s request for final payment and release of retention. 24. For federally and state funded projects, maintain a complete project filing system. Filing system shall be in accordance with Section 16.8 (Chapter 16) of the Caltrans LAPM. 25. Manage Project SWPPP Program including QSP and/or QSD duties as outlined in California State Water Resources Control Board, Storm Water General Permit. When needed, assist the City in filing all Notice of Intent (NOI) and Notice of Termination (NOT) for Capital Improvement. 26. Projects on the California State Water Resources Control Board S.M.A.R.T.S website. 27. Review and comment on the Contractor’s development and implementation of a public outreach program to inform all the affected residents and property owners about the Project. 28. Ensure that construction of improvements strictly comply with current American with Disabilities Act (ADA) Standards and regulations. 29. Deliver project files to City. 30. Provide other construction management related professional services such as materials testing, public relations, and construction surveying, as required. Daily Reports to the City Project Manager and Construction Manager: All field personnel understand fully that the daily diary is one of the most important documents in any construction project. Daily diaries contain information pertaining to day-to-day operations illustrating all the work performed and any issues that may arise on that day. Daily Reports to the City Project Manager and Construction Manager: This daily report will provide the daily status, any issues and photos to efficiently keep the City Project Manager up to date on the project’s progress. FCG has its own 3-page daily report, which includes but not limited to the following items: v Date, Day, Working Day Report Number, and Weather Conditions. v All work activitie, Daily photos, Name, Title, and Signature. v List of all contractor and subcontractor personnel and labor classifications. v List of all equipment active and idol, and all materials used. v All directives, calculations, and quantities of work performed. Page | 25 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 SECTION 8: FEE SCHEDULE, FINANCIAL CONDITION AND EXCEPTIONS Staff Hourly Rate e +OVERHEAD %+=COMBINED% NORMAL ++=124.36% OVERTIME ++=124.36% FEE %7% BILLING INFORMATION Actual % or $Hourly rate - Straight OT(1.5x)OT(2x)From To hourly rate³increase for classifications only 168.05$ 252.07$ 336.09$ 7/1/17 6/30/18 70.00$ 169.73$ 254.59$ 339.45$ 7/1/18 6/30/19 70.70$ 1.00% 171.42$ 257.14$ 342.85$ 7/1/19 6/30/20 71.41$ 1.00% 156.04$ 234.06$ 312.08$ 7/1/17 6/30/18 65.00$ 157.60$ 236.40$ 315.21$ 7/1/18 6/30/19 65.65$ 1.00% 159.18$ 238.77$ 318.36$ 7/1/19 6/30/20 66.31$ 1.00% 156.04$ 234.06$ 312.08$ 7/1/17 6/30/18 65.00$ 157.60$ 236.40$ 315.21$ 7/1/18 6/30/19 65.65$ 1.00% 159.18$ 238.77$ 318.36$ 7/1/19 6/30/20 66.31$ 1.00% 144.04$ 216.06$ 288.08$ 7/1/17 6/30/18 60.00$ 145.48$ 218.22$ 290.96$ 7/1/18 6/30/19 60.60$ 1.00% 146.93$ 220.40$ 293.87$ 7/1/19 6/30/20 61.21$ 1.00% 120.03$ 180.05$ 240.07$ 7/1/17 6/30/18 50.00$ 121.23$ 181.85$ 242.47$ 7/1/18 6/30/19 50.50$ 1.00% 122.45$ 183.67$ 244.89$ 7/1/19 6/30/20 51.01$ 1.00% 108.03$ 162.04$ 216.06$ 7/1/17 6/30/18 45.00$ 109.11$ 163.66$ 218.22$ 7/1/18 6/30/19 45.45$ 1.00% 110.20$ 165.30$ 220.40$ 7/1/19 6/30/20 45.90$ 1.00% 108.03$ 162.04$ 216.06$ 7/1/17 6/30/18 45.00$ 109.11$ 163.66$ 218.22$ 7/1/18 6/30/19 45.45$ 1.00% 110.20$ 165.30$ 220.40$ 7/1/19 6/30/20 45.90$ 1.00% 108.03$ 162.04$ 216.06$ 7/1/17 6/30/18 45.00$ 109.11$ 163.66$ 218.22$ 7/1/18 6/30/19 45.45$ 1.00% 110.20$ 165.30$ 220.40$ 7/1/19 6/30/20 45.90$ 1.00% 108.03$ 162.04$ 216.06$ 7/1/17 6/30/18 45.00$ 109.11$ 163.66$ 218.22$ 7/1/18 6/30/19 45.45$ 1.00% 110.20$ 165.30$ 220.40$ 7/1/19 6/30/20 45.90$ 1.00% 108.03$ 162.04$ 216.06$ 7/1/17 6/30/18 45.00$ 109.11$ 163.66$ 218.22$ 7/1/18 6/30/19 45.45$ 1.00% 110.20$ 165.30$ 220.40$ 7/1/19 6/30/20 45.90$ 1.00% 84.02$ 126.03$ 168.05$ 7/1/17 6/30/18 35.00$ 84.86$ 127.29$ 169.73$ 7/1/18 6/30/19 35.35$ 1.00% 85.71$ 128.57$ 171.42$ 7/1/19 6/30/20 35.70$ 1.00% 76.82$ 115.23$ 153.64$ 7/1/17 6/30/18 32.00$ 77.59$ 116.38$ 155.18$ 7/1/18 6/30/19 32.32$ 1.00% 78.36$ 117.55$ 156.73$ 7/1/19 6/30/20 32.64$ 1.00% 132.04$ 198.05$ 264.07$ 7/1/17 6/30/18 55.00$ 133.36$ 200.03$ 266.71$ 7/1/18 6/30/19 55.55$ 1.00% 134.69$ 202.03$ 269.38$ 7/1/19 6/30/20 56.11$ 1.00% 1. Names and classifications of consultant (key staff) team members listed. 2. Billing rate = actual hourly rate * (1 + ICR) * (1 + Fee). 3. For named employees enter the actual hourly rate. For classifications only, enter the average hourly rate for that classification. 4. Agreed upon billing rates valid through June 30, 2020, but are adjustable per the terms of the RFP when requested in writing 60 days prior to June 30th each year and will be considered with adequate justification for pricing escalations. Note: Denote all employees subject to prevailing wage with an asterisks (*) Public Outreach Josefa Salinas Structures Inspector* Hamid Shekaramiz, PE Facilities Inspector* Frank Miller Permit Inspector* Ron Brahs Office Engineer Amber Christian Scheduler Sam Elachkar COST PROPOSAL Specific Rate of Compensation (use for on-call or as-needed contracts) City of Downey On-Call Public Works Construction Management and Inspection FRINGE BENEFIT %GENERAL ADMINISTRATION % Consultant or Subconsultant ___FCG_(Prime)__________________ Contract No. _________ Date 06/15/2017 CALCULATION INFORMATION Name/Job Title/Classification¹ Hourly Billing Rates²Effective date of hourly rate Project Manager Abdallah Fakhouri, PE Structures Representative Mohamed Taleb, PE CM/Inspector* John Spath Electrical Inspector* Timmy To SWPPP Inspector* Jamie Engler, PE Mechanical Inspector* Tom Cartier, PE Construction Manager* Bill Viets, PE Page | 26 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Financial Condition FCG is financially secure and has not filed for, nor does it have plans to file for bankruptcy. In addition, FCG has no pending litigation, planned office closures, impending mergers, etc. Risk management and mitigation, as well as strict adherence to safety and best practices so that FCG is able to remain strong. We firmly believe that with each passing year and the completion of each job for our various clients, the satisfaction of our clients will begin to further reflect the condition of our company as well as our ability to provide our clients with the professionalism and superior customer service they deserve. Exceptions, Additions, and/or Deletions FCG makes no exceptions, additions and/or deletions from the requirements of this RFP, to include the standard Agreement and insurance requirements. SECTION 9: ADDITIONAL INFORMATION TESTIMONIALS Page | 27 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 Page | 28 Qualifications for On-Call Public Works Construction Management and Inspection Services RFQ No. 17-02 EXHIBIT A: STAFFING PLAN 3r d Qu a r t e r 4t h Q u a r t e r 1s t Qu a r t e r 2n d Q u a r t e r 3r d Qu a r t e r 4 t h Q u a r t e r 1s t Qu a r t e r 2 n d Q u a r t e r 3r d Q u a r t e r 4 t h Q u a r t e r 1s t Q u a r t e r 2 n d Q u a r t e r Ab d a l l a h F a k h o u r i , P E Pr o j e c t M a n a g e r / C M / R E 2 5 % 25 % 2 5 % 25 % 2 5 % 25 % 2 5 % 25 % 2 5 % 25 % 2 5 % 25 % W i l l i a m V i e t s , P E Co n s t r u c t i o n M a n a g e r / R e s i d e n t E n g i n e e r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ni z a r S a k e r , P E Co n s t r u c t i o n M a n a g e r / R e s i d e n t E n g i n e e r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % W a l i d N a o u c h i , P E Co n s t r u c t i o n M a n a g e r / R e s i d e n t E n g i n e e r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Jo e l S h a n d r i c k , C C M Co n s t r u c t i o n M a n a g e r / R e s i d e n t E n g i n e e r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ri c k H i j a z i , P E Co n s t r u c t i o n M a n a g e r / R e s i d e n t E n g i n e e r 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % Re g i n a T a l a m o n t e z , P E Co n s t r u c t i o n M a n a g e r / R e s i d e n t E n g i n e e r 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % M o h a m e d T a l e b , P E St r u c t u r e s R e p r e s e n t a t i v e 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % M u l u g h e t a B e l a y , P E St r u c t u r e s R e p r e s e n t a t i v e 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ba h m a n A b b a s s i , P E St r u c t u r e s R e p r e s e n t a t i v e 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ha m i d S h e k a r a m i z , P E St r u c t u r e s R e p r e s e n t a t i v e 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Da v i d C o o p e r , P E St r u c t u r e s R e p r e s e n t a t i v e 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Al e x A l a t o r r e , P E St r u c t u r e s R e p r e s e n t a t i v e 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % M i c h a e l S t . J a c q u e s , P E St r u c t u r e s R e p r e s e n t a t i v e 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Jo h n S p a t h Co n s t r u c t i o n I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % An t h o n y M o u s s a Co n s t r u c t i o n I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ch r i s t i a n O t t Co n s t r u c t i o n I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ja m e s B o n e l l i Co n s t r u c t i o n I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ti m C i a n c i Co n s t r u c t i o n I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Lu i s R u z Co n s t r u c t i o n I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % To n y A l f a k h o u r i Co n s t r u c t i o n I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ha m i d S h e k a r a m i z , P E St r u c t u r e s I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Jo h n C a r o n St r u c t u r e s I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Da r r e n H o p p e r St r u c t u r e s I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Fr a n k M i l l e r Fa c i l i t i e s I n s p e c t o r 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % Er i c H e s s Fa c i l i t i e s I n s p e c t o r 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % W i l l i a m G a r c i a Fa c i l i t i e s I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ro n B r a h s Pe r m i t I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Bi l l F e r n a n d e z Pe r m i t I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ch r i s t i a n O t t Pe r m i t I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ti m m y T o El e c t i c a l I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Le o n F u e n t e s El e c t i c a l I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ja i m e E n g l e r , P E SW P P P I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ti m m y T o SW P P P / M e c h a n i c a l I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % To m C a r t i e r , P E M e c h a n i c a l I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Da n i e l F l o r e s M e c h a n i c a l I n s p e c t o r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Jo s e f a S a l i n a s Pu b l i c O u t r e a c h 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % Ra q u e l C o r t e z Pu b l i c O u t r e a c h 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % 5 0 % 50 % Am b e r C h r i s t i a n O f f i c e E n g i n e e r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % W e n d y G a r n o n e O f f i c e E n g i n e e r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Sa m E l a c h k a r Sc h e d u l e r 5 0 % 50 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % Ke v i n B y e r s Sc h e d u l e r 10 0 % 1 0 0 % 10 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 1 0 0 % 10 0 % 1 0 0 % 10 0 % 2 0 1 8 2 0 1 9 2 0 2 0 St a f f A v a i l a b i l i t y M a t i x 20 1 7 R O L E S T A F F N A M E CITY OF DOWNEY PROFESSIONAL SERVICES AGREEMENT WITH HR GREEN PACIFIC, INC. FOR ON-CALL PUBLIC WORKS CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES 1.PARTIES AND DATE. This Agreement is made and entered into this 8th day of May, 2018 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and HR Green Pacific, Inc., a California Corporation, with its principal place of business at 1260 Corona Pointe Court, Suite 305, Corona, CA 92879 ("Consultant"). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.” 2.RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional On-Call Public Works Construction Management and Inspection services required by City on the terms and conditions set forth in this Agreement. Consultant represents that it has demonstrated competence and experience in providing On-Call Public Works Construction Management and Inspection services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for On-Call Public Works Construction Management and Inspection projects (“Project”) as set forth in this Agreement. 3.TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional On-Call Public Works Construction Management and Inspection services necessary for the Projects ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Attachment "D" 2 3.1.2 Term. The term of this Agreement shall be from May 8, 2018 to April 30, 2021, with an option to extend the agreement for three additional one-year periods, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The term of this Agreement may be extended by writt en amendment to this Agreement signed by the City Manager and the Consultant. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perf orm similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CalPERS) to be eligible for enrollment in CalPERS as an employee of City, Consultant shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CalPERS 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. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the S chedule of Services set forth in Exhibit “A” attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. The parties acknowledge that the Schedule of Services may be amended by mutual agreement due to changes in circumstances, including changes in the performance schedules of other third parties performing work for the City on the Project, which affect the timing of Consultant's performance of the Services. 3 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. 3.2.5 City’s Representative. The City hereby designates Edwin Norris, Deputy Director of Public Works, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Re presentative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee. 3.2.6 Consultant’s Representative. Consultant hereby designates George Wentz, P.E., or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant warrants and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant represents that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the 4 indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Consultant and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Consultant’s violation of such laws, rules and regulations shall also constitute a material breach of this Agreement. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. (1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” 5 basis including products and completed operations, property damage, bodily injury and personal and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Consultant owns no autos, Code 8 (hired) and 9 (non-owned); and (3) Workers’ Compensation : Workers’ Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation: Workers’ Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer’s Liability: Employer’s Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer’s Liability coverage may be waived by the City if City receives written verification that Consultant has no employees. If the Consultant maintains broader coverage a nd/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.3 Professional Liability (Errors & Omissions). Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers and employees shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, 6 its directors, officials, officers and employees, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Consultant’s insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). (B) 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 said insurance policies set forth herein. 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. (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers and employees. 3.2.10.5 Primary Coverage. For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers and employees. Any insurance or self-insurance maintained by the City, its directors, officials, officers and employees shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. 3.2.10.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors officials, officers and employees. 3.2.10.7 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City. 3.2.10.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, authorized to do business in California, and satisfactory to the City. 3.2.10.9 Verification of Coverage. Consultant shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of 7 the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Consultant’s obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. 3.2.10.10 Claims-Made Policies. If any of the policies provide coverage on a claims-made basis: (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement , whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (C) If coverage is canceled, non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest , the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable loca l, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at t he rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed an amount based on the rates set forth in Exhibit “A” without written approval of the City. Extra Work may be authorized, as described below, and if authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by 8 Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) da ys of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to exam ine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Consultant may only terminate this Agreement for cause upon giving the City not less than seven (7) calendar days' written notice. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Cons ultant shall be entitled to no further compensation. The City shall within fifteen (15) calendar days following termination pay the Consultant for all services adequately rendered and all reimbursable costs incurred by Consultant up to the date of termination, in accordance with the payment provisions of this Agreement. The following reasons shall constitute "cause" for which either party may terminate this Agreement as provided herein: 9 • Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; • Suspension of the Project or the Consultant's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: HR Green Pacific, Inc. 1260 Corona Pointe Court, Suite 305 Corona, CA 92879 Phone: (855) 900-4742 Email: gwentz@hrgreen.com Attn: George Wentz, P.E. City: City of Downey 11111 Brookshire Avenue Downey, California 90241 10 Phone: (562) 904-7102 Fax: (562) 904-7296 Attn: Edwin Norris, Deputy Director of Public Works With a courtesy copy to: City of Downey City Attorney’s Office 11111 Brookshire Avenue Downey, California 90241 Such notice shall be deemed made when personally delivered or when mailed, forty - eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity 11 pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entit led to recover from the non-prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation. 3.5.6 Indemnification. 3.5.6.1 General Indemnification. Except as provided in subdivision 3.5.6.2 below which is applicable to “design professionals” only, Consultant shall defend (with counsel 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, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment o f all consequential damages and attorneys’ fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be broug ht or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Consultant shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct. 3.5.6.2 Design Professionals. The provisions of this subdivision 3.5.6.2 shall apply only in the event that Consultant is a "design professional" within the meaning of California Civil Code section 2782.8(c). If Consultant is a "design professional" within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6.1 above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 2782 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to C ity), 12 indemnify and hold harmless City and City’s officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, subcontractor or any other person directly or indirectly employed by them, or any person that any of them control, arising out of Consultant's performance of any task or service for or on behalf of City under this Agreement. Such obligations to defend, hold harmless and indemnify C ity or any City officers, officials, employees or volunteers shall not apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Consultant's cost to defend City and/or City’s officers, officials, employees or volunteers against any such Claim shall not exceed Consultant's proportionate percentage of fault with respect to tha t Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, C onsultant shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Consultant has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Consultant shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from Consultant's negligence, recklessness or willful misconduct. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any 13 Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this A greement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company o r person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of any City Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 14 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. 3.5.23 Effect of Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Consultant shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Consultant shall ensure that City is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF DOWNEY, HR Green Pacific, Inc. a California municipal corporation a California Corporation and charter city By: By: ______________________________ Sean Ashton, Mayor George Wentz, P.E. Vice President Attest: 15 Maria Alicia Duarte, CMC, City Clerk Approved as to Form: __________________________ Yvette M. Abich Garcia, City Attorney 12385 Exhibit "A" CITY OF DOWNEY PROFESSIONAL SERVICES AGREEMENT WITH KOA CORPORATION FOR ON-CALL PUBLIC WORKS CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES 1.PARTIES AND DATE. This Agreement is made and entered into this 1st day of May, 2018 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and KOA Corporation, a California S Corporation, with its principal place of business at 1100 Corporate Center Drive, Suite 201, Monterey Park, CA 91754 ("Consultant"). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.” 2.RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional On-Call Public Works Construction Management and Inspection services required by City on the terms and conditions set forth in this Agreement. Consultant represents that it has demonstrated competence and experience in providing On-Call Public Works Construction Management and Inspection services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for On-Call Public Works Construction Management and Inspection projects (“Project”) as set forth in this Agreement. 3.TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional On-Call Public Works Construction Management and Inspection services necessary for the Projects ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Attachment "E" 2 3.1.2 Term. The term of this Agreement shall be from May 1, 2018 to April 30, 2021, with an option to extend the agreement for three additional one-year periods, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The term of this Agreement may be extended by written amendment to this Agreement signed by the City Manager and the Consultant. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CalPERS) to be eligible for enrollment in CalPERS as an employee of City, Consultant shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CalPERS 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. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. The parties acknowledge that the Schedule of Services may be amended by mutual agreement due to changes in circumstances, including changes in the performance schedules of other third parties performing work for the City on the Project, which affect the timing of Consultant's performance of the Services. 3 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the e vent that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. 3.2.5 City’s Representative. The City hereby designates Edwin Norris, Deputy Director of Public Works, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Rep resentative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee. 3.2.6 Consultant’s Representative. Consultant hereby designates Chuck Stephan, P.E., or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As 4 provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Consultant and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Consultant’s violation of such laws, rules and regulations shall also constitute a material breach of this Agreement. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: 5 (A) Minimum Scope of Insurance. (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 and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Consultant owns no autos, Code 8 (hired) and 9 (non-owned); and (3) Workers’ Compensation : Workers’ Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation: Workers’ Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer’s Liability: Employer’s Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer’s Liability coverage may be waived by the City if City receives written verification that Consultant has no employees. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.3 Professional Liability (Errors & Omissions). Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the 6 Consultant, including materials, parts or equipment furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Consultant’s insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). (B) 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 said insurance policies set forth herein. 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. (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided , reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Primary Coverage. For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. 3.2.10.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provision s. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, itsdirectors officials, officers, employees, agents and volunteers. 3.2.10.7 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City. 3.2.10.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, authorized to do business in California, and satisfactory to the City. 7 3.2.10.9 Verification of Coverage. Consultant shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Consultant’s obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. 3.2.10.10 Claims-Made Policies. If any of the policies provide coverage on a claims-made basis: (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (C) If coverage is canceled, non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed an amount based on the rates set forth in Exhibit “A” without written approval of the City. Extra Work may be authorized, as described below, and if 8 authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the s ubsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Consultant may only terminate this Agreement for cause upon giving the City not less than seven (7) calendar days' written notice. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. The City shall within fifteen (15) calendar days following termination pay the Consultant for all services adequately rendered and all reimbursable costs incurred by 9 Consultant up to the date of termination, in accordance with the payment provisions of this Agreement. The following reasons shall constitute "cause" for which either party may terminate this Agreement as provided herein: •Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; •Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; •Suspension of the Project or the Consultant's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; •Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: KOA Corporation 1100 Corporate Center Drive, Suite 201 Monterey Park, CA 91754 Phone: (323) 260-4703 Email: cstephan@koacorp.com Attn: Chuck Stephan, P.E. 10 City: City of Downey 11111 Brookshire Avenue Downey, California 90241 Phone: (562) 904-7102 Fax: (562) 904-7296 Attn: Edwin Norris, Deputy Director of Public Works With a courtesy copy to: City of Downey City Attorney’s Office 11111 Brookshire Avenue Downey, California 90241 Such notice shall be deemed made when personally delivered or when mailed, forty - eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, an d other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the 11 Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation. 3.5.6 Indemnification. 3.5.6.1 General Indemnification. Except as provided in subdivision 3.5.6.2 below which is applicable to “design professionals” only, Consultant shall defend (with counsel 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, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Consultant shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct. 3.5.6.2 Design Professionals. The provisions of this subdivision 3.5.6.2 shall apply only in the event that Consultant is a "design professional" within the meaning of California Civil Code section 2782.8(c). If Consultant is a "design professional" 12 within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6.1 above, to the fullest extent permitted by law (including, without limitation, Civil Code sect ions 2782 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to C ity), indemnify and hold harmless City and City’s officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, subcontractor or any other person directly or indirectly employed by them, or any person that any of them con trol, arising out of Consultant's performance of any task or service for or on behalf of City under this Agreement. Such obligations to defend, hold harmless and indemnify C ity or any City officers, officials, employees or volunteers shall not apply to t he extent that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Consultant's cost to defend City and/or City’s officers, officials, employees or volunteers against any such Claim shall not exceed Consultant's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Consultant shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Consultant has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Consultant shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from Consultant's negligence, recklessness or willful misconduct. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 13 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of any City 14 Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of th e California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self - insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. 3.5.23 Effect of Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Consultant shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Consultant shall ensure that City is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF DOWNEY, KOA Corporation a California municipal corporation and charter city By: By: ______________________________ Sean Ashton, Mayor Chuck Stephan, P.E. Vice President 15 Attest: Maria Alicia Duarte, CMC, City Clerk Approved as to Form: __________________________ Yvette M. Abich Garcia, City Attorney 12385 Exhibit "A" CITY OF DOWNEY PROFESSIONAL SERVICES AGREEMENT WITH WILLDAN ENGINEERING FOR ON-CALL PUBLIC WORKS CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES 1.PARTIES AND DATE. This Agreement is made and entered into this 1st day of May, 2018 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and Willdan Engineering, a California corporation, with its principal place of business at 13191 Crossroads Parkway North, Suite 405, Industry, CA 91746 ("Consultant"). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.” 2.RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional On-Call Public Works Construction Management and Inspection services required by City on the terms and conditions set forth in this Agreement. Consultant represents that it has demonstrated competence and experience in providing On-Call Public Works Construction Management and Inspection services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such services for On-Call Public Works Construction Management and Inspection projects (“Project”) as set forth in this Agreement. 3.TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional On-Call Public Works Construction Management and Inspection services necessary for the Projects ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. Attachment "F" 3.1.2 Term. The term of this Agreement shall be from May 1 , 2018 to April 30, 2021, with an option to extend the agreement for three additional one-year periods, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The term of this Agreement may be extended by written amendment to this Agreement signed by the City Manager and the Consultant. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CalPERS) to be eligible for enrollment in CalPERS as an employee of City, Consultant shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CalPERS 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. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "A" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. The parties acknowledge that the Schedule of Services may be amended by mutual agreement due to changes in circumstances, including changes in the performance schedules of other third parties performing work for the City on the Project, which affect the timing of Consultant's performance of the Services. 2 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. 3.2.5 City’s Representative. The City hereby designates Edwin Norris, Deputy Director of Public Works, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City’s Representative or his or her designee. 3.2.6 Consultant’s Representative. Consultant hereby designates Daniel Chow , President and Chief Executive Officer or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As 3 provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Consultant and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Consultant’s violation of such laws, rules and regulations shall also constitute a material breach of this Agreement. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the Consultant, its agents, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: 4 (A) Minimum Scope of Insurance. (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 and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Consultant owns no autos, Code 8 (hired) and 9 (non-owned); and (3) Workers’ Compensation : Workers’ Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer’s Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation: Workers’ Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer’s Liability: Employer’s Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer’s Liability coverage may be waived by the City if City receives written verification that Consultant has no employees. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.3 Professional Liability (Errors & Omissions). Consultant shall procure and maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or 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. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the 5 Consultant, including materials, parts or equipment furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Consultant’s insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). (B) 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 said insurance policies set forth herein. 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. (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Primary Coverage. For any claims related to this Agreement, the Consultant’s insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. 3.2.10.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors officials, officers, employees, agents and volunteers. 3.2.10.7 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City. 3.2.10.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, authorized to do business in California, and satisfactory to the City. 6 3.2.10.9 Verification of Coverage. Consultant shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Consultant’s obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. 3.2.10.10 Claims-Made Policies. If any of the policies provide coverage on a claims-made basis: (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (C) If coverage is canceled, non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed an amount based on the rates set forth in Exhibit “A” without written approval of the City. Extra Work may be authorized, as described below, and if 7 authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Consultant may only terminate this Agreement for cause upon giving the City not less than seven (7) calendar days' written notice. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. The City shall within fifteen (15) calendar days following termination pay the Consultant for all services adequately rendered and all reimbursable costs incurred by 8 Consultant up to the date of termination, in accordance with the payment provisions of this Agreement. The following reasons shall constitute "cause" for which either party may terminate this Agreement as provided herein: • Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; • Suspension of the Project or the Consultant's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: Willdan Engineering 13191 Crossroads Parkway North, Suite 405 Industry, CA 91746 Phone: (562) 908-6200 Email: dchow@willdan.com Attn: Daniel Chow 9 City: City of Downey 11111 Brookshire Avenue Downey, California 90241 Phone: (562) 904-7102 Fax: (562) 904-7296 Attn: Edwin Norris, Deputy Director of Public Works With a courtesy copy to: City of Downey City Attorney’s Office 11111 Brookshire Avenue Downey, California 90241 Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the 10 Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation. 3.5.6 Indemnification. 3.5.6.1 General Indemnification. Except as provided in subdivision 3.5.6.2 below which is applicable to “design professionals” only, Consultant shall defend (with counsel 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, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Consultant shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct. 3.5.6.2 Design Professionals. The provisions of this subdivision 3.5.6.2 shall apply only in the event that Consultant is a "design professional" within the meaning of California Civil Code section 2782.8(c). If Consultant is a "design professional" 11 within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6.1 above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 2782 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to City), indemnify and hold harmless City and City’s officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, subcontractor or any other person directly or indirectly employed by them, or any person that any of them control, arising out of Consultant's performance of any task or service for or on behalf of City under this Agreement. Such obligations to defend, hold harmless and indemnify City or any City officers, officials, employees or volunteers shall not apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Consultant's cost to defend City and/or City’s officers, officials, employees or volunteers against any such Claim shall not exceed Consultant's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Consultant shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Consultant has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Consultant shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from Consultant's negligence, recklessness or willful misconduct. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 12 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of any City 13 Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. 3.5.23 Effect of Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Consultant shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Consultant shall ensure that City is an additional insured on all insurance required from subcontractors. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. [Signatures on next page] 14 CITY OF DOWNEY, Willdan Engineering a California municipal corporation and charter city By: By: ______________________________ Sean Ashton, Mayor Daniel Chow President Attest: Maria Alicia Duarte, CMC, City Clerk Approved as to Form: __________________________ Yvette M. Abich Garcia, City Attorney 12385 15 Exhibit "A"