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Home My WebLink About2018 CON Kimley-Horn and Associates - Project Support Services CIP Program - El Toyon - Las Palmas Bicycle CorridorLocal Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND KIMLEY-HORN ANDASSOCIATES, INC. FOR THE EL TOYON - LAS PALMAS BICYCLE CORRIDOR THIS AGREEMENT is entered into on this 23th day of April, 2018, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and KIMLEY-HORN AND ASSOCIATES, INC., a corporation (the "CONSULTANT"). RECITALS WHEREAS, the CITY desires to employ a CONSULTANT to provide on -call project support services for National City's Capital Improvement Program (CIP). WHEREAS, on February 2, 2017, the Engineering & Public Works Department advertised a Request for Qualifications (RFQ) for on -call project support services for National City's CIP; WHEREAS, on March 6, 2017, the CONSULTANT submitted a Statement of Qualifications (SOQ) in response to the RFQ, consistent with the requirements of the RFQ; WHEREAS, the CITY has determined that the CONSULTANT is an engineering firm; and WHEREAS, based on evaluation of the CONSULTANT'S SOQ and interview, the CITY has determined that the CONSULTANT is qualified by experience and ability to perform the services desired by the CITY, and the CONSULTANT is willing to perform such services. WHEREAS, the CITY and the CONSULTANT entered into an agreement on June 6, 2017, ("the Agreement") through the adoption of City of National City Council Resolution No. 2017-92, wherein the CONSULTANT agreed to provide on -call project support services for the CITY'S CIP, including, but not limited to, project management, engineering and contract management, architecture, land surveying, environmental compliance, assessment and remediation, geotechnical, soils and materials testing, plan reviews, constructability reviews, and community outreach. WHEREAS, the City Council authorized the City Manager to execute any project specific - supplemental agreements as may be required for grant funded projects. WHEREAS, the CITY has determined that the following Caltrans Exhibit 10-R A&E Contract must be executed to satisfy Federal Highway Administration grant requirements. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: Page 1 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. EXHIBIT 10-R A &E CONTRACT TABLE OF CONTENTS Article Subject Page Article I Introduction 3 Article II Statement of Work 3 Article III Consultant's Reports or Meetings 5 Article IV Performance Period; Term 5 Article V Allowable Costs and Payments 5 Article VI Termination 7 Article VII Cost Principles and Administrative Requirements 7 Article VIII Retention of Records/Audit 7 Article IX Audit Review Procedures 8 Article X Subcontracting 8 Article XI Equipment Purchase 9 Article XII State Prevailing Wage Rates 9 Article XIII Conflict of Interest 9 Article XIV Rebates, Kickbacks or other Unlawful Consideration 10 Article XV Prohibition of Expending CITY State or Federal Funds for Lobbying 10 Article XVI Statement of Compliance 10 Article XVII Debarment and Suspension Certification 11 Miscellaneous provisions: Article XVIII Funding Requirements 11 Article XIX Change in Terms 12 Article XX Disadvantaged Business Enterprises (DBE) Participation 12 Article XXI Contingent Fee 13 Article XXII Disputes 13 Article XXIII Inspection of Work 14 Article XXIV Workers' Compensation; Safety 14 Article XXV Insurance 14 Article XXVI Ownership of Data 15 Article XXVII Claims Filed by CITY'S Construction Contractor 16 Article XXVIII Confidentiality of Data 17 Article XXIX National Labor Relations Board Certification 17 Article XXX Evaluation of Consultant 17 Article XXXI Retention of Funds 18 Article XXXII Notification 18 Article XXXIII Administrative Provisions 19 Article XXXIV Contract 20 Article XXXV Signatures 21 Page 2 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. ARTICLE I INTRODUCTION A. This Architecture and Engineering contract ("A&E Contract" or "Contract") is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, CITY: The name of the "CONSULTANT' is as follows: Kimley Horn & Associates, Inc. Incorporated in the State of California The Project Manager for the "CONSULTANT" will be Jennifer Koopman, P.E. The name of the "CITY" is as follows: The CITY of National CITY, a municipal corporation. The Contract Administrator for CITY will be Stephen Manganiello, Director of Public Works/City Engineer. B. The work to be performed under this Contract is described in Article II entitled Statement of Work and the approved CONSULTANT's Cost Proposal dated September 14, 2017. The approved CONSULTANT's Cost Proposal is attached hereto (Exhibit A) and incorporated by reference. If there is any conflict between the approved Cost Proposal and this Contract, this Contract shall take precedence. C. CONSULTANT agrees to indemnify and hold harmless CITY, its officers, agents, employees, and volunteers from any and all claims, demands, suits, actions, proceedings, costs, or liability, including workers' compensation claims, of or by anyone whomsoever, arising from or connected with the services provided hereunder due to negligent acts, errors, or omissions of CONSULTANT. CONSULTANT will reimburse CITY for any expenditure, including reasonable attorney fees, incurred by CITY in defending against claims ultimately determined to be due to negligent acts, errors, or omissions of CONSULTANT. The indemnity, defense and hold harmless obligations contained herein shall survive the termination of this Contract for any alleged or actual omission, act, or negligence under this Contract that occurred during the term of this Contract. D. CONSULTANT and the agents and employees of CONSULTANT, in the performance of this Contract, shall act in an independent capacity and not as officers or employees or agents of CITY. E. Without the written consent of CITY, this Contract is not assignable by CONSULTANT either in whole or in part. F. No alteration or variation of the terms of this Contract shall be valid, unless made in writing and signed by the parties hereto; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto. G. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT's expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided. ARTICLE H STATEMENT OF WORK A. Consultant Services The CONSULTANT will be expected to submit proposals for individual task orders in a timely manner, consistent with the general scope of services in Exhibit "A". Task order proposals shall include a detailed scope of work, schedule of deliverables and "not -to -exceed" cost estimate. The Project Coordinator will issue a Notice to Proceed upon approval of each individual task order. After issuance of a Notice to Proceed for each individual task order, the CONSULTANT will only receive compensation for actual work performed, on a time and materials basis, consistent with the detailed scope of work and within the limits of the "not -to -exceed" cost estimate. Page 3 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. The CONSULTANT shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONSULTANT shall appear at meetings specified in Exhibit "A" to keep staff and City Council advised of the progress on the Project. The CITY may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Contract. Upon doing so, the CITY and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services, not to exceed a factor of 15% from the base amount. B. Right of Way Right -of -Way Engineering services include but are not limited to: determination of ownership, parcel, and subparcel information, boundary determination, right-of-way requirements, preparing appraisal maps, preparing final right-of-way maps, preparing acquisition and relinquishment documents, and performing right-of-way certification. C. Surveys These services include but are not limited to: control, engineering, and construction surveys, conducting field investigation, developing topographical mapping, establishing property boundaries, construction staking, and records searches. D. Subsurface Investigations Geotechnical and geology services include but are not limited to: performing field drilling and borings, preparing foundation reports, pavement recommendations, soils reports, log of test borings, evaluating and making recommendations for design parameters based on the conditions encountered. E. CITY Obligations All data applicable to the project and in possession of CITY or another agency, or government that are to be made available to CONSULTANT are referred to in the Contract. F. Conferences, Visits to Site, Inspection of Work The Contract provides for conferences as needed, visits to the site, and inspection of the work by representatives of the state, or FHWA. Costs incurred by CONSULTANT for meetings, subsequent to the initial meeting shall be included in invoices to be paid by the CITY. G. Checking Shop Drawings Payment for checking shop drawings by CONSULTANT may be included in the invoices to be paid by the City, or provision may be made for separate payment. H. Consultant Services During Construction Design support during construction services include but are not limited to: developing design changes to plans, specification, and cost estimated during construction, reviewing shop drawings and submittals, field reviews, site condition verification, and developing as -built plans. I. Documentation and Schedules The CITY shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Contract, and the amount of compensation due. In the event the CONSULTANT and the CITY cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Contract, the CITY or the CONSULTANT shall give to the other written notice. Within ten (10) business Page 4 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. days, the CONSULTANT and the CITY shall each prepare a report which supports their position and file the same with the other party. The CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. J. Deliverables and Number of Copies The number of copies of papers or documents to be furnished, such as reports, brochures, sets of plans, specifications, or Right of Way plots shall be specified in each task order. ARTICLE III CONSULTANT'S REPORTS OR MEETINGS A. CONSULTANT shall submit progress reports on each specific project in accordance with the Task Order. These reports shall be submitted at least once a month. The report should be sufficiently detailed for CITY's Contract Administrator to determine if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed. B. CONSULTANT's Project Manager shall meet with CITY's Contract Administrator, as needed, to discuss progress on the project(s). ARTICLE IV PERFORMANCE PERIOD; TERM A. This Contract shall go into effect on September 27, 2017, contingent upon approval by CITY, and CONSULTANT shall commence work after issuance of a notice to proceed by CITY'S Contract Administrator. The Contract shall end on June 29, 2018, unless extended by Contract amendment. This Contract may be extended by mutual agreement upon the same terms and conditions for an additional one (1) year term. B. CONSULTANT is advised that any recommendation for an award of this Contract is not binding on CITY until the Contract is fully executed and approved by CITY. C. CONSULTANT shall commence work after a notice to proceed is issued by CITY' S Contract Administrator. The period of performance for each specific project shall be in accordance with the Task Order for that project. If work on a Task Order is in progress on the expiration date of this Contract, the terms of the Contract shall be extended by Contract amendment until that Task Order is completed to the satisfaction of the CITY. ARTICLE V ALLOWABLE COSTS AND PAYMENTS A. CONSULTANT will be reimbursed for hours worked at the hourly rates specified in CONSULTANTs Cost Proposal (Exhibit A). The specified hourly rates shall include direct salary costs, employee benefits, overhead, and fee. These rates are not adjustable for the performance period set forth in this Contract. B. In addition, CONSULTANT will be reimbursed for incurred (actual) direct costs other than salary costs that are in the cost proposal and identified in the cost proposal' and in the executed Task Order. C. Specific projects will be assigned to CONSULTANT through issuance of Task Orders. E. Task Orders may be negotiated for a lump sum (Firm Fixed Price) or for specific rates of compensation, both of which must be based on the labor and other rates set forth in CONSULTANT's Cost Proposal. F. Reimbursement for transportation and subsistence costs shall not exceed the rates as specified in the approved Cost Proposal. Page 5 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. G. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such estimate. H. Progress payments for each Task Order will be made monthly in arrears based on services provided and actual costs incurred. I. CONSULTANT shall not commence performance of work or services until this Contract has been approved by CITY, and notification to proceed has been issued by CITY'S Contract Administrator. No payment will be made prior to approval or for any work performed prior to approval of this Contract. J. A Task Order is of no force or effect until returned to CITY and signed by an authorized representative of CITY. No expenditures are authorized on a project and work shall not commence until a Task Order for that project has been executed by CITY. K. CONSULTANT will be reimbursed, as promptly as fiscal procedures will permit upon receipt by CITY'S Contract Administrator of itemized invoices in triplicate. Separate invoices itemizing all costs are required for all work performed under each Task Order. Invoices shall be submitted no later than 45 calendar days after the performance of work for which CONSULTANT is billing, or upon completion of the Task Order. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Contract number, project title and Task Order number. Credits due CITY that include any equipment purchased under the provisions of Article XI Equipment Purchase of this Contract, must be reimbursed by CONSULTANT prior to the expiration or termination of this Contract. Invoices shall be mailed to CITY's Contract Administrator at the following address: Stephen Manganiello Director of Public Works/City Engineer Engineering & Public Works Department City of National City 1243 National City Boulevard National City, California 91950-4301 L. The period of performance for Task Orders shall be in accordance with dates specified in the Task Order. No Task Order will be written which extends beyond the expiration date of this Contract. M. The total amount payable by CITY for an individual Task Order shall not exceed the amount agreed to in the Task Order, unless authorized by Contract amendment. N. If the Consultant fails to satisfactorily complete a deliverable according to the schedule set forth in a Task Order, no payment will be made until the deliverable has been satisfactorily completed. O. Task Orders may not be used to amend this Contract and may not exceed the statement of work under this Contract. P. The total amount payable by CITY for all Task Orders resulting from this Contract shall not exceed $13,275. It is understood and agreed that there is no guarantee, either expressed or implied that this dollar amount will be authorized under this Contract through Task Orders. ARTICLE VI TERMINATION A. This Contract may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONSULTANT. During said 60-day period the CONSULTANT shall perform all services in accordance with this Contract. Page 6 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. B. This Contract may also be terminated immediately by the CITY for cause in the event of a material breach of this Contract, misrepresentation by the CONSULTANT in connection with the formation of this Contract or the performance of services, or the failure to perform services as directed by the CITY. In the event of such termination, CITY may proceed with the work in any manner deemed proper by CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT with the reasons for termination stated in the notice as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT'S breach, if any. In which case the damages (or overage) shall be deducted from any sum due CONSULTANT under this Contract and the balance, if any, shall be paid to CONSULTANT upon demand. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in ARTICLE XXVI. E. The CITY further reserves the right to immediately terminate this Contract upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. CONSULTANT agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items. B. CONSULTANT also agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments. C. Any costs for which payment has been made to CONSULTANT that are determined by subsequent audit to be unallowable under 49 CFR, Part 18 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by CONSULTANT to CITY. ARTICLE VIII RETENTION OF RECORDS/AUDIT For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the Contract pursuant to Government Code 8546.7; CONSULTANT, subconsultants, and CITY shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of the Contract, including but not limited to, the costs of administering the Contract. All parties shall make such materials available at their respective offices at all reasonable times during the Contract period and for three years from the date of final payment under the Contract. The state, State Auditor, CITY, FHWA, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of CONSULTANT and it's certified public accountants (CPA) work papers that are pertinent to the Contract and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. Page 7 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. ARTICLE IX AUDIT REVIEW PROCEDURES A. Any dispute concerning a question of fact arising under an interim or post audit of this Contract that is not disposed of by agreement, shall be reviewed by CITY'S Director of Finance. B. Not later than 30 days after issuance of the final audit report, CONSULTANT may request a review by CITY'S Director of Finance of unresolved audit issues. The request for review will be submitted in writing. C. Neither the pendency of a dispute nor its consideration by CITY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this Contract. D. CONSULTANT and subconsultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a Contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Contract, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT's responsibility to ensure federal, state, or local government officials are allowed full access to the CPA's work papers including making copies as necessary. The Contract, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by CITY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the Contract by this reference if directed by CITY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of Contract terms and cause for termination of the Contract and disallowance of prior reimbursed costs. ARTICLE X SUBCONTRACTING A. Nothing contained in this Contract or otherwise, shall create any contractual relation between CITY and any subconsultant(s), and no subcontract shall relieve CONSULTANT of its responsibilities and obligations hereunder. CONSULTANT agrees to be as fully responsible to CITY for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by CONSULTANT. CONSULTANT' s obligation to pay its subconsultant(s) is an independent obligation from CITY'S obligation to make payments to the CONSULTANT. B. CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Contract shall be subcontracted without written authorization by CITY' s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal. C. CONSULTANT shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to CONSULTANT by CITY. D. All subcontracts entered into as a result of this Contract shall contain all the provisions stipulated in this contract to be applicable to subconsultants. E. Any substitution of subconsultant(s) must be approved in writing by CITY' s Contract Administrator prior to the start of work by the subconsultant(s). ARTICLE XI EQUIPMENT PURCHASE A. Prior authorization in writing, by CITY's Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or Page 8 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs. B. For purchase of any item, service or consulting work not covered in CONSULTANT' s Cost Proposal and exceeding $5,000 prior authorization by CITY's Contract Administrator; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified. C. Any equipment purchased as a result of this Contract is subject to the following: "CONSULTANT shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, CITY shall receive a proper refund or credit at the conclusion of the contract, or if the Contract is terminated, CONSULTANT may either keep the equipment and credit CITY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established CITY procedures; and credit CITY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT's expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by CITY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by CITY." 49 CFR, Part 18 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the project. ARTICLE XII STATE PREVAILING WAGE RATES A. CONSULTANT shall comply with the State of California's General Prevailing Wage Rate requirements in accordance with California Labor Code, Sections 1720,1720.2, 1720.3, 1720.4, and 1770, 1771, and all Federal, State, and local laws and ordinances applicable to the work. B. Any subcontract entered into as a result of this Contract, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Article, unless the awarding agency has an approved labor compliance program by the Director of Industrial Relations. C. When prevailing wages apply to the services described in the statement of work, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov. ARTICLE XIII CONFLICT OF INTEREST A. CONSULTANT shall disclose any financial, business, or other relationship with CITY that may have an impact upon the outcome of this Contract, or any ensuing CITY construction project. CONSULTANT shall also list current clients who may have a financial interest in the outcome of this Contract, or any ensuing CITY construction project, which will follow. B. CONSULTANT hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Contract. C. CONSULTANT hereby certifies that neither CONSULTANT, nor any firm affiliated with CONSULTANT will bid on any construction Contract, or on any Contract to provide construction inspection for any construction project resulting from this Contract. An affiliated firm is one, which is subject to the control of the same persons through joint -ownership, or otherwise. D. Except for subconsultants whose services are limited to providing surveying or materials testing information, no subconsultant who has provided design services in connection with this Contract shall be eligible to bid on Page 9 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. any construction Contract, or on any Contract to provide construction inspection for any construction project resulting from this Contract. ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION CONSULTANT warrants that this Contract was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any CITY employee. For breach or violation of this warranty, CITY shall have the right in its discretion; to terminate the Contract without liability; to pay only for the value of the work actually performed; or to deduct from the Contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration. ARTICLE XV PROHIBITION OF EXPENDING CITY STATE OR FEDERAL FUNDS FOR LOBBYING A. CONSULTANT certifies to the best of his or her knowledge and belief that: 1. No state, federal or CITY appropriated funds have been paid, or will be paid by -or -on behalf of CONSULTANT to any person for influencing or attempting to influence an officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal Contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal Contract, grant, loan, or cooperative agreement. 2. If any funds other than federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this federal Contract, grant, loan, or cooperative agreement; CONSULTANT shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. C. CONSULTANT also agrees by signing this Contract that he or she shall require that the language of this certification be included in all lower -tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly. ARTICLE XVI STATEMENT OF COMPLIANCE A. During the performance of this Contract, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultant and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and subconsultants shall comply Page 10 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. with the provisions of the Fair Employment and Housing Act (Gov. Code § 12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 10000 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4.1 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Contract. B. The Consultant shall comply with regulations relative to Title VI (nondiscrimination in federally -assisted programs of the Department of Transportation — Title 49 Code of Federal Regulations, Part 21 - Effectuation of Title VI of the 1964 Civil Rights Act). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the state of California shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest. C. The Consultant, with regard to the work performed by it during the Contract shall act in accordance with Title VI. Specifically, the Consultant shall not discriminate on the basis of race, color, national origin, religion, sex, age, or disability in the selection and retention of Subconsultants, including procurement of materials and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the U.S. DOT's Regulations, including employment practices when the Contract covers a program whose goal is employment. ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION A. CONSULTANT's signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that CONSULTANT has complied with Title 2 CFR, Part 180, "OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)", which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to CITY. B. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining CONSULTANT responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action. C. Exceptions to the Federal Government Excluded Parties List System maintained by the General Services Administration are to be determined by the Federal Highway Administration. ARTICLE XVIII FUNDING REQUIREMENTS A. It is mutually understood between the parties that this Contract may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the Contract were executed after that determination was made. B. This Contract is valid and enforceable only, if sufficient funds are made available to CITY for the purpose of this Contract. In addition, this Contract is subject to any additional restrictions, limitations, conditions, or any Page 11 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. statute enacted by the Congress, State Legislature, or the CITY Council that may affect the provisions, terms, or funding of this Contract in any manner. C. It is mutually agreed that if sufficient funds are not appropriated, this Contract may be amended to reflect any reduction in funds. D. CITY has the option to void the Contract under the 30-day termination clause.pursuant to Article VI, or by mutual agreement to amend the Contract to reflect any reduction of funds. ARTICLE XIX CHANGE IN TERMS A. This Contract may be amended or modified only by mutual written agreement of the parties. B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by CITY's Contract Administrator. C. There shall be no change in CONSULTANT's Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this Contract without prior written approval by CITY's Contract Administrator. ARTICLE XX DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION A. This Contract is subject to 49 CFR, Part 26 entitled "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs". Consultants who obtain DBE participation on this Contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal. B. The goal for DBE participation for this Contract is 0%. 2% DBE goal for PA&ED phase has been met. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-01), or in the Consultant Contract DBE Information (Exhibit 10-02) attached hereto and incorporated as part of the Contract. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met. C. DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of Contracts financed in whole or in part with federal funds. CONSULTANT or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. CONSULTANT shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT -assisted agreements. Failure by CONSULTANT to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy as CITY deems appropriate. D. Any subcontract entered into as a result of this Contract shall contain all of the provisions of this Article . E. A DBE firm may be terminated only with prior written approval from CITY and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting CITY consent for the termination, CONSULTANT must meet the procedural requirements specified in 49 CFR 26.53(f). F. A DBE performs a Commercially Useful Function (CUF) when it is responsible for execution of the work of the Contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible with respect to materials and supplies Page 12 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. used on the Contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a CUF, the CITY will evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the Contract is commensurate with the work it is actually performing, and other relevant factors. G. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, the CITY will examine similar transactions, particularly those in which DBEs do not participate. H. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its Contract with its own work force, or the DBE subcontracts a greater portion of the work of the Contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF. I. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work. J. Upon completion of the Contract, a summary of these records shall be prepared and submitted on the form entitled, "Final Report -Utilization of Disadvantaged Business Enterprise (DBE), First -Tier Subconsultants" CEM-2402F [Exhibit 17-F, of the LAPM], certified correct by CONSULTANT or CONSULTANT's authorized representative and shall be furnished to the Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in twenty-five percent (25%) of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to CONSULTANT when a satisfactory "Final Report -Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subconsultants" is submitted to the Contract Administrator. K. If a DBE subconsultant is decertified during the life of the Contract, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the Contract, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to CITY' s Contract Administrator within 30 days. ARTICLE XXI CONTINGENT FEE CONSULTANT warrants, by execution of this Contract that no person or selling agency has been employed, or retained, to solicit or secure this Contract upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, CITY has the right to annul this Contract without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the Contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee. ARTICLE XXII DISPUTES A. Any dispute, other than an audit, concerning a question of fact arising under this Contract that is not disposed of by agreement shall be decided by a committee consisting of CITY' s Contract Administrator and (Insert Page 13 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. Department Head or Official), who may consider written or verbal information submitted by CONSULTANT. B. Not later than 30 days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by the CITY Council of unresolved claims or disputes, other than an audit. The request for review will be submitted in writing. C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this Contract. ARTICLE XXIII INSPECTION OF WORK CONSULTANT and any subconsultant shall permit CITY, the state, and the FHWA to review and inspect the project activities and files at all reasonable times during the performance period of this Contract including review and inspection on a daily basis. ARTICLE XXIV WORKERS' COMPENSATION; SAFETY A. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Labor Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, employees, and volunteers from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. B. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by CITY Safety Officer and other CITY representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site. C. Pursuant to the authority contained in Section 591 of the Vehicle Code, CITY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles. D. Any subcontract entered into as a result of this Contract, shall contain all of the provisions of this Article. ARTICLE XXV INSURANCE The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONSULTANT(S), when applicable, to purchase and maintain throughout the term of this Contract, the following insurance policies: A. ® If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence, $2,000,000 aggregate, on a "claims made" basis. The CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Contract. In addition, the "retro" date must be shown and must be before the date of this Contract. Page 14 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Contract, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Contract. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of work under this Contract. If CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CITY. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY's Risk Manager, at the address listed in subsection G below, of cancellation or material change. F. Insurance shall be written with only California admitted companies that hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. G. The Certificate Holder for all policies of insurance required by this Article shall be "CITY of National CITY, do Risk Manager, 1243 National CITY Boulevard, National CITY, CA 91950-4397. H. This Contract shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONSULTANT does not keep all of such insurance policies in full force and effect at all times during the terms of this Contract, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Contract and terminate the Contract as provided herein. I. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. J. If the CONSULTANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY requires and shall be entitled to the broader coverage or higher limits (or both) 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. ARTICLE XXVI OWNERSHIP OF DATA Page 15 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. A. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONSULTANT for this Project, whether paper or electronic, shall become the property of the CITY for use with respect to this Project, and shall be turned over to the CITY upon completion of the Project, or any phase thereof, as contemplated by this Contract. B. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CITY, and CONSULTANT thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Contract, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. C. The CONSULTANT agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONSULTANT'S written work product for the CITY'S purposes, and the CONSULTANT expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. D. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONSULTANT shall relieve the CONSULTANT from liability under Article XXVIII, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of this project, unless otherwise mutually agreed. E. CITY may permit copyrighting reports or other agreement products. If copyrights are permitted, the agreement shall provide that the FHWA shall have the royalty -free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the work for government purposes. ARTICLE XXVII CLAIMS FILED BY CITY's CONSTRUCTION CONTRACTOR A. The CONSULTANT agrees to defend, indemnify, and hold harmless the CITY of National City, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT'S negligent performance of this Contract. CITY will cooperate reasonably in the defense of any action, and CONSULTANT shall employ competent counsel, reasonably acceptable to the City Attorney. B. The indemnity, defense and hold harmless obligations contained herein shall survive the termination of this Contract for any alleged or actual omission, act, or negligence under this Contract that occurred during the term of this Contract. C. If claims are filed by CITY' s construction contractor relating to work performed by CONSULTANT's personnel, and additional information or assistance from CONSULTANT's personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with CITY'S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings. D. CONSULTANT's personnel that CITY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from CITY. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT's personnel services under this Contract. Page 16 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. E. Services of CONSULTANT's personnel in connection with CITY's construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this Contract in order to resolve the construction claims. F. If the CITY's construction contractor files a claim with the CITY, the claims procedures of Public Contract Code Article 9204 shall apply. A correct copy of Public Contract Code Article 9204 is attached to this Contract as Exhibit B. ARTICLE XXVIII CONFIDENTIALITY OF DATA A. The CITY may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Article XXVIII, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. Any subcontract entered into as a result of this Contract shall contain the provisions of this Article XXVIII(A). B. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Contract without the prior written consent of the CITY. Permission to disclose information on one occasion, or public hearing held by CITY, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of this Article. C. CONSULTANT shall not comment publicly to the press or any other media regarding the Contract or CITY's actions on the same, except to CITY'S staff, CONSULTANT's own personnel involved in the performance of this Contract, at public hearings or in response to questions from a Legislative committee. D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Contract without prior review of the contents thereof by CITY and receipt of CITY'S written permission. E. Any subcontract entered into as a result of this Contract shall contain all of the provisions of this Article. ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code Section 10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT's failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board. ARTICLE XXX EVALUATION OF CONSULTANT Page 17 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. CONSULTANT's performance will be evaluated by CITY. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the Contract record. ARTICLE XXXI RETENTION OF FUNDS A. Any subcontract entered into as a result of this Contract shall contain all of the provisions of this Article. B. No retainage will be withheld by the Agency from progress payments due the prime consultant. Retainage by the prime consultant or subconsultants is prohibited, and no retainage will be held by the prime consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non -DBE prime consultants and subconsultants. ARTICLE XXXII NOTIFICATION All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Stephen Manganiello Director of Public Works/City Engineer Engineering & Public Works Department City of National City 1243 National City Boulevard National City, California 91950-4301 SManganiello@nationalcityca.gov To CONSULTANT: Leo Espelet, P.E. Secretary Kimley-Horn and Associates, Inc. 401 `B" Street, Suite 600 San Diego, CA 92101 Notice of change of address shall be given by written notice in the manner specified in this Article. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was Page 18 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Article. ARTICLE XXXIII ADMINISTRATIVE PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Contract is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Contract may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Contract are solely for the convenience of the parties hereto, are not a part of this Contract, and shall not be used for the interpretation or determination of the validity of this Contract or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Contract shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Contract, the terms and conditions of this Contract shall control. F. Waiver. The waiver or failure to enforce any provision of this Contract shall not operate as a waiver of any future breach of any such provision or any other provision hereof. G. Applicable Law. This Contract shall be governed by and construed in accordance with the laws of the State of California. H. Entire Contract. This Contract supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. I. Successors and Assigns. This Contract shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. J. Subcontractors or Subconsultants. The CITY is engaging the services of the CONSULTANT identified in this Contract. The CONSULTANT shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Contract is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in ARTICLE XXV and the indemnification and hold harmless provision of ARTICLE XXVII of this Contract. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Contract, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Contract, (iv) each party and such parry's counsel and advisors have reviewed this Contract, (v) each party has agreed to enter into this Contract following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Contract, or any portions hereof, or any amendments hereto. L. Licenses, Permits, Etc. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The Page 19 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Contract, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. M. Legal Fees. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Contract, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. ARTICLE XXXIV CONTRACT The two parties to this Contract, who are the before named CONSULTANT and the before named CITY, hereby agree that this Contract constitutes the entire agreement which is made and concluded in duplicate between the two parties. Both of these parties for and in consideration of the payments to be made, conditions mentioned, and work to be performed; each agree to diligently perform in accordance with the terms and conditions of this Contract as evidenced by the signatures below. Page 20 of 21 August 2016 Local Assistance Procedures Manual EXHIBIT 10-R A&E Contract City of National City and Kimley Horn & Associates, Inc. ARTICLE XXXV SIGNATURES IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date and year first above written. CITY OF NATIONAL CITY By: Leslie Deese, City Manager APPROVED AS TO FORM: it P. Morris -Jones City to By: Ro s erto M. Contreras Deputy City Attorney KIMLEY-HORN AND ASSOCIATES, INC. By: il Dennis Landa 1, Sr. Vic President IRGc_ 715 3 2 Page 21 of 21 August 2016 Kimley>»Horn September 14, 2017 Mr. Kuna Muthusamy City of National City 1243 National City Boulevard National City, CA 91950 Re: El Toyon — Las Palmas Bicycle Boulevard Project Dear Mr. Muthusamy: EXHIBIT A Kimley-Horn and Associates, Inc. ("Kimley-Horn" or"Consultant") is pleased to submit this letter agreement to the City of National City ("City") for providing professional services related to PA&ED for the El Toyon — Las Palmas Bicycle Boulevard Project. Project Understanding The City received a federally funded California Active Transportation Program Grant to design bicycle improvements parallel and east of 1-805 between Division Street and 22nd Street (along T Avenue, Paradise Avenue, and Grove Street). The 1.75 mile bicycle boulevard was identified as a Tier 1 priority project in the National City SMART Foundation Plan and is designated as a regional bicycle corridor in the National City Bicycle Master Plan and SANDAG 2050 Regional Transportation Plan (RTP). Improvements to these relatively low volume residential streets will ultimately link four elementary schools, two major City parks, and serve the future South Bay BRT station at Plaza Boulevard. The City has requested that Kimley-Horn provide professional services related to the project. The scope of services below documents the anticipated scope of services. Scope of Services Task 1 — Preliminary Assessment & Environmental Documentation Kimley-Horn will provide as -needed Professional services to the extent budgeted to assist the City with the preliminary assessment and environmental documentation of the project. Some of these services may include: • Design concepts • Site assessments • Environmental documentation (previously completed) • Coordination with City Staff • Coordination with Caltrans • Project Management Additional Services The following services are not included in the scope of services, but can be provided as additional services if authorized by the City. If authorized, Kimley-Horn will submit a proposal for additional services based on a not -to -exceed fee using the same billing rates per the original agreement. kimIcy-horn.com 401 B Street, Suite 600, San Diego, California, 92101 619-2 34-941 I Kimley»>Horn • Visual Renderings/Technical Studies • Title Reports • Aerial Topography • Field Survey • Drainage Report • SWPPP • Water Quality Technical Report • Hydromodification Analysis • Lighting Studies • Utility Coordination • Construction Plans and Specifications • Bid and Construction Services • Record Drawings Information Provided By Client Page 2 We shall be entitled to rely on the completeness and accuracy of information provided by the Client. The Client shall provide information requested by Kimley-Horn during the project, this shall include: • As-builts • Plans by other consultants Schedule We will provide our services as expeditiously as practicable to meet a mutually agreed upon schedule. Fee and Billing Kimley-Horn will perform the scope of services outlined above on a time and materials basis, not to exceed $13,275. Fees will be invoiced monthly based upon the percentage of services performed as of the invoice date. Payment will be due within 30 days of the date of the invoice. Very truly yours, KIMLEY-HORN AND ASSOCIATES, INC. qSziwfr-Yooe'YkaA-- Jennifer Koopman, P.E Project Manager kimley-horn.com Dennis Landaal, P.E. Senior Vice President 401 r3 Street, Suite 600, San Diego, California, 92101 619-234-9411 Exhibit B California Public Contract Code § 9204 § 9204. Legislative findings and declarations regarding timely and complete payment of contractors for public works projects; claims process (a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner. (b) Notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project. (c) For purposes of this section: (1) "Claim" means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following: (A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project. (B) Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled. (C) Payment of an amount that is disputed by the public entity. (2) "Contractor" means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into a direct contract with a public entity for a public works project. (3)(A) "Public entity" means, without limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency. (B) "Public entity" shall not include the following: (i) The Department of Water Resources as to any project under the jurisdiction of that department. Page 1 of 4 (ii) The Department of Transportation as to any project under the jurisdiction of that department. (iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department. (iv) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code. (v) The Military Department as to any project under the jurisdiction of that department. (vi) The Department of General Services as to all other projects. (vii) The High -Speed Rail Authority. (4) "Public works project" means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind. (5) "Subcontractor" means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor. (d)(1)(A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision. (B) The claimant shall furnish reasonable documentation to support the claim. (C) If the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the public entity shall have up to three days following the next duly publicly noticed meeting of the governing body after the 45-day period, or extension, expires to provide the claimant a written statement identifying the disputed portion and the undisputed portion. (D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply. (2)(A) If the claimant disputes the public entity's written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for Page 2 of 4 settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute. (B) Within 10 business days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section. (C) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section. (D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced. (E) This section does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation under this section does not resolve the parties' dispute. (3) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied by reason of the public entity's failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant. (4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum. (5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may Page 3 of 4 present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor. A subcontractor may request in writing, either on his or her own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as to whether the contractor presented the claim to the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so. (e) The text of this section or a summary of it shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section. (f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, mediation and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions of this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this section. (g) This section applies to contracts entered into on or after January 1, 2017. (h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations. (i) This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date. Page 4 of 4 CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk KIMLEY-HORN AND ASSOCIATES, INC. EL TOYON — LAS PALMS BICYCLE CORRIDOR ON -CALL PROJECT SUPPORT SERVICES CIP PROGRAM Tirza Gonzales (Engineering/Public Works) forwarded a duplicate original Agreement to Kimley-Horn and Associates, Inc.