HomeMy WebLinkAbout1/2/2013 - STAFF REPORTS - 2D ols
40�Q A`M s..
iy
V N
* k
ti
% C09>paaico iy
Cq<IFORN�Pk City Council Staff Report
Date: January 02, 2013 CONSENT CALENDAR
Subject: APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT WITH
DMC DESIGN GROUP, INC. FOR THE MESQUITE AVENUE WIDENING
(WEST OF BELARDO ROAD) PROJECT, CITY PROJECT 12-01
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
The Tribe has allocated $500,000 from its Indian Reservation Roads (IRR) Program to
the City to design and construct the widening of Mesquite Avenue, west of Belardo
Road, which is to include a parking area for the Lykken Trailhead. The City solicited
proposals from consultants for environmental and civil engineering design services for
this project. After a competitive consultant selection process, the City selected DMC
Design Group, Inc., and negotiated the proposed professional services agreement.
RECOMMENDATION:
1) Approve Agreement No. with DMC Design Group, Inc., in the amount of
$78,991.00 for environmental and civil engineering design services related to the
widening of Mesquite Avenue, west of Belardo Road, City Project 12-01; and
2) Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
On January 18, 2012, City Council approved an Intergovernmental Memorandum of
Understanding by and between the Agua Caliente Band of Cahuilla Indians (Tribe) and
the City of Palm Springs regarding Indian Reservation Road Program Funding for the
Mesquite Avenue Improvements Project; and a Subcontractor Services Agreement by
and between the Agua Caliente Band of Cahuilla Indians and the City of Palm Springs.
The Tribe has determine to allocate to the City up to $500,000 from its IRR funds to
design, acquire rights-of-way, and construct a project to widen Mesquite Avenue, west
of Belardo Road, which is to include parking and associated improvements for the
Lykken Trail at the west end of Mesquite Avenue. Tribal and City staff have determined
that these additional improvements will be a benefit to the Tribe and City.
ITEM NO.��
City Council Staff Report
January 02, 2013 - Page 2
Mesquite Avenue Widening (West of Belardo Road, CP 12-01)
This project requires the services of a professional firm to perform the required
environmental analysis and prepare the environmental documents, and to prepare the
plans and specifications for construction of the improvements. Staff prepared a
Request for Proposals (RFP) to solicit environmental and civil engineering design
services for this project. On April 17, 2012, the RFP was published and made available
to firms through the City's Division of Procurement and Contracting, and by the May 17,
2012, deadline, proposals from the following 6 firms were received:
Albert A. Webb Associates, Inc.; Palm Desert, CA
DMC Design Group, Inc.; Corona, CA
Engineering Resources of Southern California, Inc.; San Bernardino, CA
Terra Nova Planning & Research, Inc; Palm Desert, CA
Transtech Engineers, Inc.; San Bernardino, CA
Urban Logic Consultants, Inc.; Temecula, CA
Following review of the proposals by a Selection Committee, a clear consensus of DMC
Design Group, Inc., as the top ranked firm was made. The Selection Committee, in
accordance with federal rules regarding the consultant selection process, determined
that final interviews were not necessary based on its clear determination of a top ranked
firm. The selection was based on DMC Design Group's thorough understanding of the
project area, federal processes related to environmental clearances, and their recent
experience coordinating federally funded projects.
Local Business Preference Compliance
Section 7.09.030 of the Palm Springs Municipal Code, "Local Business Preference
Program," requires consultants to use good faith efforts to solicit applications for
employment and proposals for sub-consultants for work associated with the proposed
contract from local residents and firms as opportunities occur and hire qualified local
residents and firms whenever feasible. However, in accordance with the exceptions in
the Code, as the City is a sub-recipient of federal-aid funds for this project from the
Federal Highway Administration ("FHWA") via the Tribe, local preferences are generally
not allowed in the awarding of this contract. Therefore, the provisions of the City's Local
Business Preference Program were not included in the RFP.1
The primary basis behind the prohibition of local hiring preferences is that they are
inconsistent with the principles of free and open competition, which is required in the
federal-aid program pursuant to federal law found at 23 USC 112, "Letting of Contracts".
Also, 23 CFR 635.117 (b) states: No procedures or requirement shall be imposed by
any State which will operate to discriminate against the employment of labor from any
other State, possession or territory of the United States, in the construction of a Federal-
aid project. This provision is generally applied to any City contracts funded in part by
federal-aid funds the City receives as a sub-recipient from FHWA.
02
City Council Staff Report
January 02, 2013- Page 3
Mesquite Avenue Widening (West of Belardo Road, CP 12-01)
However, nondiscrimination provisions apply to all programs and activities of federal-aid
recipients, sub-recipients, and contractors, regardless of tier (49 CFR 21). Pursuant to
Caltrans regulations, Disadvantaged Business Enterprise (DBE) requirements must be
satisfied with this project. Per new DBE requirements established by FHWA beginning
July 1, 2012, the recalculated DBE is 2.74%. Consultant will meet this requirement per
the contract or fill out the necessary forms to attempt to meet this goal in good faith.
FISCAL IMPACT:
Funding for the environmental engineering, right of way, and construction of this project
will come entirely from the $500,000 allocated by the Tribe from the IRR Program. The
total costs of this project will not exceed $500,000; therefore, there will be no City
funding required.
Funding for this contract will be budgeted as follows:
$78,991.00 from account 261-4491-50302
SUBMITTED:
Prepar y: Recommended by:
/-/Zz -
(Xn' —
Sav Khamphou David J. Barakian
Assistant Director of Public Works Director of Public Works/City Engineer
Approved by:
Thomas J. Wilson, Asst. City Manager David H. Ready, ager
ATTACHMENTS:
1. Agreement
03
CITY OF PALM SPRINGS
PROFESSIONAL SERVICES AGREEMENT
MESQUITE AVENUE WIDENING (WEST OF BELARDO ROAD)
CITY PROJECT NO. 12-01
THIS PROFESSIONAL SERVICES AGREEMENT (hereinafter "Agreement") is made
and entered into, to be effective this day of 20_, by and between the
CITY OF PALM SPRINGS, a California charter city and municipal corporation, (hereinafter
referred to as "City") and DMC Design Group ,
(hereinafter referred to as "Consultant"). City and Consultant are sometimes hereinafter
individually referred to as "Party" and are hereinafter collectively referred to as the "Parties."
RECITALS
A. City has determined that there is a need for environmental, civil engineering
design, and construction administration services for the widening of Mesquite Avenue
Widening, west of Belardo Road, City Project No. 12-01, (hereinafter the "Project").
B. Consultant has submitted to City a proposal to provide environmental, civil
engineering design, right-of-way, and construction administration services to City for the
Project pursuant to the terms of this Agreement.
C. Consultant is qualified by virtue of its experience, training, education, reputation, and
expertise to provide these services and has agreed to provide such services as provided
herein.
D. City desires to retain Consultant to provide such professional services.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and
conditions contained herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Consultant agrees to perform the professional services set forth in the Scope of
Services described in Exhibit 'A," which is attached hereto and is incorporated herein by
reference (hereinafter referred to as the "Services" or"Work"). As a material inducement to the
City entering into this Agreement, Consultant represents and warrants that Consultant is a
provider of first class work and professional services and that Consultant is experienced in
performing the Work and Services contemplated herein and, in light of such status and
experience, Consultant covenants that it shall follow the highest professional standards in
performing the Work and Services required hereunder. For purposes of this Agreement, the
phrase "highest professional standards" shall mean those standards of practice recognized as
high quality among well-qualified and experienced professionals performing similar work under
similar circumstances.
1.2 Contract Documents. The Agreement between the Parties shall consist of the
following: (1) this Agreement; (2) the Scope of Services; (3) the City's Request for Proposals;
Page 1 of 18 04
and, (4) the Consultant's signed, original proposal submitted to the City ("Consultant's
Proposal"), which shall all be referred to collectively hereinafter as the "Contract Documents."
The City's Request for Proposals and the Consultant's Proposal, which are both attached
hereto as Exhibits "C" and "D," respectively, are hereby incorporated by reference and are
made a part of this Agreement. The Scope of Services shall include the Consultant's
Proposal. All provisions of the Scope of Services, the City's Request for Proposals, and the
Consultant's Proposal shall be binding on the Parties. Should any conflict or inconsistency
exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the
provisions in the highest priority document, which shall be determined in the following order of
priority: (1S) the provisions of the Scope of Services (Exhibit "A"); (2nd) the provisions of the
City's Request for Proposals (Exhibit "C"); (3`d) the terms of this Agreement; and, (4th) the
provisions of the Consultant's Proposal (Exhibit "D").
1.3 Compliance with Law. Consultant warrants that all Services rendered
hereunder shall be performed in accordance with all applicable federal, state, and local laws,
statutes, and ordinances and all lawful orders, rules, and regulations promulgated thereunder.
1.4 Licenses, Permits, Fees and Assessments. Consultant represents and
warrants to City that it has obtained all licenses, permits, qualifications, and approvals of
whatever nature that are legally required to practice its profession and perform the Work and
Services required by this Agreement. Consultant represents and warrants to City that
Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this
Agreement, any license, permit, qualification, or approval that is legally required for Consultant
to perform the Work and Services under this Agreement. Consultant shall have the sole
obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest,
which may be imposed by law and arise from or are necessary for the Consultant's
performance of the Work and Services required by this Agreement, and shall indemnify,
defend, and hold harmless City against any such fees, assessments, taxes penalties, or
interest levied, assessed, or imposed against City hereunder.
1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that
Consultant (a) has thoroughly investigated and considered the Scope of Services to be
performed, (b) has carefully considered how the Services should be performed, and (c) fully
understands the facilities, difficulties, and restrictions attending performance of the Services
under this Agreement. If the Services involve work upon any site, Consultant warrants that
Consultant has or will investigate the site and is or will be fully acquainted with the conditions
there existing, prior to commencement of any Services hereunder. Should the Consultant
discover any latent or unknown conditions that will materially affect the performance of the
Services hereunder, Consultant shall immediately inform the City of such fact and shall not
proceed except at Consultant's risk until written instructions are received from the City.
1.6 Care of Work. Consultant shall adopt reasonable methods during the term of
the Agreement to furnish continuous protection to the Work and the equipment, materials,
papers, documents, plans, studies, and/or other components thereof to prevent losses or
damages, and shall be responsible for all such damages, to persons or property, until
acceptance of the Work by the City, except such losses or damages as may be caused by
City's own negligence.
Page 2 of 18
05
1.7 Further Responsibilities of Parties. Both Parties agree to use reasonable care
and diligence to perform their respective obligations under this Agreement. Both Parties agree
to act in good faith to execute all instruments, prepare all documents, and take all actions as
may be reasonably necessary to carry out the purposes of this Agreement.
1.8 Additional Services. City shall have the right at any time during the
performance of the Services, without invalidating this Agreement, to order extra work beyond
that specified in the Scope of Services or make changes by altering, adding to, or deducting
from such Work. No such extra work may be undertaken unless a written order is first given by
the City to the Consultant, incorporating therein any adjustment in (i) the Maximum Contract
Amount„ as defined below, and/or (ii) the time to perform this Agreement, which adjustments
are subject to the written approval of the Consultant. Any increase in compensation of up to
twenty-five percent (25%) of the Maximum Contract Amount or $25,000, whichever is less, or
in the time to perform of up to thirty (30) days, may be approved by the City Manager, or his
designee, as may be needed to perform any extra work. Any greater increases, occurring
either separately or cumulatively, must be approved by the Palm Springs City Council. It is
expressly understood by Consultant that the provisions of this section shall not apply to the
services specifically set forth in the Scope of Services or reasonably contemplated therein,
regardless of whether the time or materials required to complete any work or service identified
in the Scope of Services exceeds any time or material amounts or estimates provided therein.
1.9 Special Requirements. Additional terms and conditions of this Agreement, if
any, which are made a part hereof are set forth in the "Special Requirements" attached hereto
as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the
provisions of Exhibit "B" and any other provisions of this Agreement, the provisions in Exhibit
"B" shall govern.
2.0 COMPENSATION
2.1 Maximum Contract Amount. For the Services rendered pursuant to this
Agreement, Consultant shall be compensated by City in accordance with the Schedule of
_Compensation,which-is_attacbed -hereto as Exnihif"E" ands in=porated_herein by reference
but not exceeding the maximum contract amount of Seventy Eight Thousand Nine
Hundred and Ninety-One Dollars, ($78,991 ) (hereinafter referred to as the "Maximum
Contract Amount"), except as may be provided pursuant to Section 1.8 above. The method of
compensation shall be as set forth in Exhibit "E". Compensation for necessary expenditures
for reproduction costs, telephone expenses, and transportation expenses must be approved in
advance by the Contract Officer designated pursuant to Section 4.2 and will only be approved
if such expenses are also specified in the Schedule of Compensation. The Maximum Contract
Amount shall include the attendance of Consultant at all Project meetings reasonably deemed
necessary by the City. Consultant shall not be entitled to any increase in the Maximum
Contract Amount for attending these meetings. Consultant hereby acknowledges that it
accepts the risk that the services identified in the Scope of Services may be more costly and/or
time-consuming than Consultant anticipates, that Consultant shall not be entitled to additional
compensation therefore, and that the provisions of Section 1.8 shall not be applicable to the
services identified in the Scope of Services. The maximum amount of city's payment
obligation under this section is the amount specified herein. If the City's maximum payment
'obfiigatian is reached before the Consultant's Services under this Agreement are completed,
Page 3 of 18
06
consultant shall nevertheless complete the Work without liability on the City's part for further
payment beyond the Maximum Contract Amount.
2.2 Method of Payment. Unless some other method of payment is specified in the
Schedule of Compensation (Exhibit "E"), in any month in which Consultant wishes to receive
payment, no later than the tenth (10) working day of such month, Consultant shall submit to
the City, in a form approved by the City's Finance Director, an invoice for services rendered
prior to the date of the invoice. Such requests shall be based upon the amount and value of
the services performed by Consultant and accompanied by such reporting data including an
itemized breakdown of all costs incurred and tasks performed during the period covered by the
invoice, as may be required by the City. City shall use reasonable efforts to make payments to
Consultant within forty-five (45) days after receipt of the invoice or a soon thereafter as is
reasonably practical. There shall be a maximum of one payment per month.
2.3 Chances in Scope. In the event any change or changes in the Scope of
Services is requested by the City, the Parties shall execute a written amendment to this
Agreement, setting forth with particularity all terms of such amendment, including, but not
limited to, any additional professional fees. An amendment may be entered into: (a) to provide
for revisions or modifications to documents or other work product or work when documents or
other work product or work is required by the enactment or revision of law subsequent to the
preparation of any documents, other work product, or work; and/or (b) to provide for additional
services not included in this Agreement or not customarily furnished in accordance with
generally accepted practice in Consultant's profession.
2.4 Appropriations. This Agreement is subject to and contingent upon funds being
appropriated therefore by the Palm Springs City Council for each fiscal year covered by the
Agreement. If such appropriations are not made, this Agreement shall automatically terminate
without penalty to the City.
3. SCHEDULE OF PERFORMANCE
_3-1 Time.of Essence..Time_is-ofthe essence--in-the perAmance-of this aR.-... seen: _
The time for completion of the services to be performed by Consultant is an essential condition
of this Agreement. Consultant shall prosecute regularly and diligently the,Work of this
Agreement according to the agreed upon Schedule of Performance (Exhibit "F").
3.2 Schedule of Performance. Consultant shall commence the Services pursuant
to this Agreement upon receipt of a written notice to proceed and shall perform all Services
within the time periods) established in the Schedule of Performance, which is attached hereto
as Exhibit "F" and is incorporated herein by reference. When requested by Consultant,
extensions to the time period(s) specified in the Schedule of Performance may be approved in
writing by the Contract Officer, but such extensions shall not exceed one hundred eighty (180)
days cumulatively; however, the City shall not be obligated to grant such an extension.
3.3 Force Maieure. The time period(s) specified in the Schedule of Performance for
performance of the Services rendered pursuant to this Agreement shall be extended because
of any delays due to unforeseeable causes beyond the control and without the fault or
negligence of the Consultant (financial inability excepted), including, but not limited to, acts of
God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics,
Page 4 of 18
07
quarantine restrictions, riots, strikes, freight embargoes, wars, and/or acts of any governmental
agency, including the City, if Consultant, within ten (10) days of the commencement of such
delay, notifies the City Manager in writing of the causes of the delay. The City Manager shall
ascertain the facts and the extent of delay, and extend the time for performing the Services for
the period of the enforced delay when and if in the judgment of the City Manager such delay is
justified. The City Manager's determination shall be final and conclusive upon the Parties to
this Agreement. In no event shall Consultant be entitled to recover damages against the City
for any delay in the performance of this Agreement, however caused, Consultant's sole
remedy being extension of the Agreement pursuant to this section.
3.4 Term. Unless earlier terminated as provided elsewhere in this Agreement, this
Agreement shall commence upon the effective date of this Agreement and continue in full
force and effect until completion of the Services but not exceeding three (3) years from the
date hereof, except as otherwise provided in the Schedule of Performance (Exhibit "F") and
pursuant to Section 3.2 above, unless extended by mutual written agreement of the Parties.
4. COORDINATION OF WORK
4.1 Representative of Consultant. The following principal of Consultant is hereby
designated as being the principal and representative of Consultant authorized to act in its
behalf with respect to the Services to be performed under this Agreement and make all
decisions in connection therewith: David M, Cosper . It is expressly understood that
the experience, knowledge, education, capability, expertise, and reputation of the foregoing
principal is a substantial inducement for City to enter into this Agreement. Therefore, the
foregoing principal shall be responsible during the term of this Agreement for directing all
activities of Consultant and devoting sufficient time to personally supervise the services
performed hereunder. The foregoing principal may not be changed by Consultant without prior
written approval of the Contract Officer.
4.2 Contract Officer. The Contract Officer shall be such person as may be
designated by the City Manager of City, and is subject to change by the City Manager. It shall
be the_Consultant's responsibility to-ensure that the Contract Offices-kept fully informed of
the progress of the performance of the Services, and the Consultant shall refer any decisions
which must be made by City to the Contract Officer. Unless otherwise specified herein, any
approval of City required hereunder shall mean the approval of the Contract Officer. The
Contract Officer shall have authority to sign all documents on behalf of the City required
hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignments. The experience,
knowledge, capability, expertise, and reputation of Consultant, its principals and employees,
were a substantial inducement for City to enter into this Agreement. Therefore, Consultant
shall not assign the performance of this Agreement, nor any part thereof, nor any monies due
hereunder, voluntarily or by operation of law, without the prior written consent of City.
Consultant shall not contract with any other entity to perform the Services required under this
Agreement without the prior written consent of City. If Consultant is permitted to subcontract
any part of this Agreement by City, Consultant shall be responsible to City for the acts and
omissions of its subcontractor(s) in the same manner as it is for persons directly employed._
Nothing contained in this Agreement shall create any contractual relationships between any
subcontractor and City. All persons engaged in the Work will be considered employees of
Page 5 of 18
08
Consultant. City will deal directly with and will make all payments to Consultant. In addition,
neither this Agreement nor any interest herein may be transferred, assigned, conveyed,
hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of
creditors or otherwise, without the prior written consent of City. Transfers restricted hereunder
shall include the transfer to any person or group of persons acting in concert of more than
twenty five percent (25%) of the present ownership and/or control of Consultant, taking all
transfers into account on a cumulative basis. In the event of any such unapproved transfer,
including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall
release Consultant or any surety of Consultant from any liability hereunder without the express
written consent of City.
4.4 Independent Contractor.
A. The legal relationship between the Parties is that of an independent
contractor, and nothing herein shall be deemed to make Consultant a City employee. During
the performance of this Agreement, Consultant and its officers, employees, and agents shall
act in an independent capacity and shall not act as City officers or employees. The personnel
performing the Services under this Agreement on behalf of Consultant shall at all times be
under Consultant's exclusive direction and control. Neither City nor any of its officers,
employees, or agents shall have control over the conduct of Consultant or any of its officers,
employees, or agents, except as set forth in this Agreement. Consultant, its officers,
employees, or agents shall not maintain an office or any other type of fixed business location
at City's offices. City shall have no voice in the selection, discharge, supervision, or control of
Consultant's employees, servants, representatives, or agents, or in fixing their number,
compensation, or hours ,of service. Consultant shall pay all wages, salaries, and other
amounts due its employees in connection with this Agreement and shall be responsible for all
reports and obligations respecting them, including but not limited to social security income tax
withholding, unemployment compensation, workers' compensation, and other similar matters.
City shall not in any way or for any purpose be deemed to be a partner of Consultant in its
business or otherwise a joint venturer or a member of any joint enterprise with Consultant.
--R.- Consultant shall-not incur ar-have-the power to incur any idebt, obligation,
or liability against City, or bind City in any manner.
C. No City benefits shall be available to Consultant, its officers, employees,
or agents in connection with any performance under this Agreement. Except for professional
fees paid to Consultant as provided for in this Agreement, City shall not pay salaries, wages, or
other compensation to Consultant for the performance of Services under this Agreement. City
shall not be liable for compensation or indemnification to Consultant, its officers, employees, or
agents, for injury or sickness arising out of performing Services hereunder. If for any reason
any court or governmental agency determines that the City has financial obligations, other than
pursuant to Section 2 and Subsection 1.8 herein, of any nature relating to salary, taxes, or
benefits of Consultant's officers, employees, servants, representatives, subcontractors, or
agents, Consultant shall indemnify City for all such financial obligations.
S. INSURANCE
5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and
expense, in a form and content satisfactory to City, the insurance described herein for the
Page 6 of 18
09
duration of this Agreement, including any extension thereof, or as otherwise specified herein,
against claims which may arise from or in connection with the performance of the Work
hereunder by Consultant, its agents, representatives, or employees. In the event the City
Manager determines that the Work or Services to be performed under this Agreement creates
an increased or decreased risk of loss to the City, the Consultant agrees that the minimum
limits of the insurance policies may be changed accordingly upon receipt of written notice from
the City Manager or his designee. Consultant shall immediately substitute any insurer whose
A.M. Best rating drops below the levels specified herein. Except as otherwise authorized
below for professional liability (errors and omissions) insurance, all insurance provided
pursuant to this Agreement shall be on an occurrence basis. The minimum amount of
insurance required hereunder shall be as follows:
A. Errors and Omissions Insurance. Consultant shall obtain and maintain in
full force and effect throughout the term of this Agreement, standard industry form professional
liability (errors and omissions) insurance coverage in an amount of not less than one million
dollars ($1,000,000.00) per occurrence and two-million dollars ($2,000,000.00) annual
aggregate, in accordance with the provisions of this section.
(1) Consultant shall either: (a) certify in writing to the City that Consultant
is unaware of any professional liability claims made against Consultant and is unaware of any
facts which may lead to such a claim against Consultant; or (b) if Consultant does not provide
the certification pursuant to (a), Consultant shall procure from the professional liability insurer
an endorsement providing that the required limits of the policy shall apply separately to claims
arising from errors and omissions in the rendition of services pursuant to this Agreement.
(2) If the policy of insurance is written on a "claims made" basis, the policy
shall be continued in full force and effect at all times during the term of this Agreement, and for
a period of three (3) years from the date of the completion of the Services provided hereunder.
In the event of termination of the policy during this period, Consultant shall obtain continuing
insurance coverage for the prior acts or omissions of Consultant during the course of
performing Services under the terms of this Agreement. The coverage shall be evidenced by
either a.-new poky evidencrng--no-gap-in-covemgeror-by--obtaininng_c_epa,F�ratP Aaxtended 'tail' _
coverage with the present or new carrier or other insurance arrangements providing for
complete coverage, either of which shall be subject to the written approval by the City
Manager.
(3) In the event the policy of insurance is written on an "occurrence"
basis, the policy shall be continued in full force and effect during the term of this Agreement, or
until completion of the Services provided for in this Agreement, whichever is later. In the event
of termination of the policy during this period, new coverage shall immediately be obtained to
ensure coverage during the entire course of performing the Services under the terms of this
Agreement.
B. Workers' Compensation Insurance. Consultant shall obtain and maintain,
in full force and effect throughout the term of this Agreement, workers' compensation
insurance in at least the minimum statutory amounts, and in compliance with all other statutory
requirements, as required by the State of California. Consultant agrees to waive and obtain
end-orsemerits from its workers` compensation insurer waiving subrogation rights under its
workers' compensation insurance policy against the City and to require each of its
Page 7 of 18
10
subcontractors, if any, to do likewise under their workers' compensation insurance policies. If
Consultant has no employees, Consultant shall complete the City's Request for Waiver of
Workers' Compensation Insurance Requirement form.
C. Commercial General Liability Insurance. Consultant shall obtain and
maintain, in full force and effect throughout the term of this Agreement, a policy of commercial
general liability insurance written on a per occurrence basis with a combined single limit of at
least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general
aggregate for bodily injury and property damage including coverages for contractual liability,
personal injury, independent contractors, broad form property damage, products and
completed operations.
D. Business Automobile Insurance. Consultant shall obtain and maintain, in
full force and effect throughout the term of this Agreement, a policy of business automobile
liability insurance written on a per occurrence basis with a single limit liability in the amount of
one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include
coverage for owned, non-owned, leased, and hired cars.
E. Employer Liability Insurance. Consultant shall obtain and maintain, in full
force and effect throughout the term of this Agreement, a policy of employer liability insurance
written on a per occurrence basis with a policy limit of at least one million dollars
($1,000,000.00)for bodily injury or disease.
5.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City Manager prior to commencing any
work or services under this Agreement. Consultant guarantees payment of all deductibles and
self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in
excess of $10,000, and the City Manager may require evidence of pending claims and claims
history as well as evidence of Consultant's ability to pay claims for all deductible amounts and
self-insured retentions proposed in excess of$10,000.
QtherAnsurariee--Rewairerients:-The following-provision --shat apply to -the
insurance policies required of Consultant pursuant to this Agreement:
5.3.1 For any claims related to this Agreement, Consultant's coverage shall be primary
insurance as respects City and its officers, council members, officials,
employees, agents, and volunteers. Any insurance or self-insurance maintained
by the City and its officers, council members, officials, employees, agents, and
volunteers shall be in excess of Consultant's insurance and shall not contribute
with it.
5.3.2 Any failure to comply with reporting or other provisions of the policies, including
breaches of warranties, shall not affect coverage provided to City and its officers,
council members, officials, employees, agents, and volunteers.
5.3.3 All insurance coverage and limits provided by Consultant and available or
a livable-fo this A reement-ara did #4 I ,t-each_ nsured..1neludina
p c_ _ 9,ee - - aPP--X
additional insureds, against whom a claim is made or suit is brought to the full
extent of the policies. Nothing contained in this Agreement or any other
Page 8 of 18
11
agreement relating to the City or its operations shall limit the application of such
insurance coverage.
5.3.4 None of the insurance coverages required herein will be in compliance with these
requirements if they include any limiting endorsement which substantially impairs
the coverages set forth herein (e.g., elimination of contractual liability or reduction
of discovery period), unless the endorsement has first been submitted to the City
Manager and approved in writing.
5.3.5 Consultant agrees to require its insurer to modify insurance endorsements to
delete any exculpatory wording stating that failure of the insurer to mail written
notice of cancellation imposes no obligation, or that any party will "endeavor" (as
opposed to being required) to comply with the requirements of the
endorsements. Certificates of insurance will not be accepted in lieu of required
endorsements, and submittal of certificates without required endorsements may
delay commencement of the Project. It is Consultant's obligation to ensure
timely compliance with all insurance submittal requirements as provided herein.
5.3.6 Consultant agrees to ensure that subcontractors, and any other parties involved
with the Project who are brought onto or involved in the Project by Consultant,
provide the same minimum insurance coverage required of Consultant.
Consultant agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with the
requirements of this section. Consultant agrees that upon request, all
agreements with subcontractors and others engaged in the Project will be
submitted to the City for review.
5.3.7 Consultant acknowledges and agrees that any actual or alleged failure on the
part of the City to inform Consultant of non-compliance with any insurance
requirement in no way imposes any additional obligations on the City nor does it
waive any rights hereunder in this or any other regard.
5.3.8 Consultant shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has
been ordered shall be submitted prior to expiration. Endorsements as required in
this Agreement applicable to the renewing or new coverage shall be provided to
City no later than ten (10) days prior to expiration of the lapsing coverage.
5.3.9 Requirements of specific insurance coverage features or limits contained in this
section are not intended as limitations on coverage, limits, or other requirements
nor as a waiver of any coverage normally provided by any given policy. Specific
reference to a given coverage feature is for purposes of clarification only as it
pertains to a given issue, and is not intended by any parry or insured to be
limiting or all-inclusive.
5.3.10 The requirements in_this section supersede all other sections and provisions of
Phis Agreement to the extent that any other section or provision conflicts with or
impairs the provisions of this section.
Page 9 of 18
12
5.3.11 Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the Work performed under this Agreement and
for any other claim or loss which may reduce the insurance available to pay
claims arising out of this Agreement. City assumes no obligation or liability by
such notice, but has the right (but not the duty) to monitor the handling of any
such claim or claims if they are likely to involve City, or to reduce or dilute
insurance available for payment of potential claims.
5.3.12 Consultant agrees that the provisions of this section shall not be construed as
limiting in any way the extent to which the Consultant may be held responsible
for the payment of damages resulting from the Consultant's activities or the
activities of any person or person for which the Consultant is otherwise
responsible.
5.4 Sufficiency of Insurers. Insurance required herein shall be provided by
authorized insurers in good standing with the State of California. Coverage shall be provided
by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class Vil,
or better, unless such requirements are waived in writing by the City Manager or his designee
due to unique circumstances.
5.5 Verification of Coverage. Consultant shall furnish City with both certificates of
insurance and endorsements, including additional insured endorsements, affecting all of the
coverages required by this Agreement. The certificates and endorsements are to be signed by
a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to
be received and approved by the City before worts commences. City reserves the right to
require Consultant's insurers to provide complete, certified copies of all required insurance
policies at any time. Additional insured endorsements are not required for Errors and
Omissions and Workers' Compensation policies.
Verification of Insurance-coverage-may be provided-by-, (1)an approved General and/or
Atrte Uability,Endorsement Form for the City of Palm Springs or(2) an acceptable Certificate
of Liability Insurance Coverage with an approved Additional Insured Endorsement with the
following endorsements stated on the certificate:
1. "The City of Palm Springs, its officials, employees, and agents are named as an
additional insured..." ("as respects City of Palm Springs Contract No. " or "for any and all
work performed with the City"may be included in this statement).
2. "This insurance is primary and non-contributory over any insurance or self-
insurance the City may have..." ("as respects City of Palm Springs Contract No.—. or"for any
and all work performed with the City' may be included in this statement).
3. "Should any of the above described policies be canceled before the expiration
date thereof, the issuing company will mail 30 days written notice to the Certificate Holder
named." Language such as, "endeavor to" mail and "but failure to mail such notice shall
_impose n2 0bliaation or Lability of&w kind up-on the company,_ita-agents or_representative"_is_
not acceptable and must be crossed out.
Page 10 of 18
13
4. Both the Workers' Compensation and Employers' Liability policies shall contain
the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees,
agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the
certificate holder on the policies. All certificates of insurance and endorsements are to be
received and approved by the City before work commences. All certificates of insurance must
be authorized by a person with authority to bind coverage, whether that is the authorized
agent/broker or insurance underwriter. Failure to obtain the required documents prior to the
commencement of work shall not waive the Consultant's obligation to provide them.
6. INDEMNIFICATION
To the fullest extent permitted by law, Consultant shall indemnify, defend (at
Consultant's sole cost and expense), protect and hold harmless City and its officers, council
members, officials, employees, agents and volunteers and all other public agencies whose
approval of the Project is required, (individually "Indemnified Party'; collectively "Indemnified
Parties") against any and all liabilities, claims, judgments, arbitration awards, settlements,
costs, demands, orders, and penalties (collectively "Claims"), including but not limited to
Claims arising from injuries or death of persons (Consultant's employees included) and
damage to property, which Claims arise out of, pertain to, or are related to the negligence,
recklessness, or willful misconduct of Consultant, its agents, employees, or subcontractors, or
arise from Consultant's negligent, reckless, or willful performance of or failure to perform any
term, provision, covenant, or condition of this Agreement ("Indemnified Claims"), but
Consultant's liability for Indemnified Claims shall be reduced to the extent such Claims arise
from the negligence, recklessness, or willful misconduct of the City, its officers, council
members, officials, employees, or agents.
Consultant shall reimburse the Indemnified Parties for any reasonable expenditures,
including reasonable attorneys' fees, expert fees, litigation costs, and expenses that each
Indemnified Party may incur by reason of Indemnified Claims. Upon request_by an_I_ndemnifie_d
Party, Consultarnt shall-defend rAth- counsel-r r�,•,E �:nifiGQ
legs!- easonably-a€ceptable fe-thw
Party all Claims against the Indemnified Party that may arise out of, pertain to, or relate to
Indemnified Claims, whether or not Consultant is named as a party to the Claim proceeding.
The determination whether a Claim "may arise out of, pertain to, or relate to Indemnified
Claims" shall be based on the allegations made in the Claim and the facts known or
subsequently discovered by the Parties. In the event a final judgment, arbitration award, order,
settlement, or other final resolution expressly determines that Claims did not arise out of,
pertain to, nor relate to the negligence, recklessness, or willful misconduct of Consultant to any
extent, then City shall reimburse Consultant for the reasonable costs of defending the
Indemnified Parties against such Claims, except City shall not reimburse Consultant for
attorneys' fees, expert fees, litigation costs, and expenses that were incurred defending
Consultant or any parties other than Indemnified Parties against such Claims.
Consultant's indemnification obligation hereunder shall survive the expiration or earlier
termination of this Agreement until all actions against the Indemnified Parties for such matters
indemnified hereunder are fully and finallY_barred by the applicable statute. of limitations or. if
_
an action is timely filed, until such action is final This provision is intended for thebenefit of
third party Indemnified Parties not otherwise a party to this Agreement.
Page 11 of 18
14
7. REPORTS AND RECORDS
7.1 Accounting Records. Consultant shall keep complete, accurate, and detailed
accounts of all time, costs, expenses, and expenditures pertaining in any way to this
Agreement. Consultant shall keep such books and records as shall be necessary to properly
perform the Servicesrequired by this Agreement and to enable the Contract Officer to evaluate
the performance of such Services. The Contract Officer shall have full and free access to such
books and records at all reasonable times, including the right to inspect, copy, audit, and make
records and transcripts from such records.
7.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer
such reports concerning the performance of the Services required by this Agreement as the
Contract Officer shall require. Consultant hereby acknowledges that the City is greatly
concerned about the cost of the Work and Services to be performed pursuant to this
Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts,
circumstances, techniques, or events that may or will materially increase or decrease the cost
of the Work or Services contemplated herein or, if Consultant is providing design services, the
cost of the project being designed, Consultant shall promptly notify the Contract Officer of such
fact, circumstance, technique, or event and the estimated increased or decreased cost related
thereto and, if Consultant is providing design services, the estimated increased or decreased
cost estimate for the project being designed.
7.3 Ownership of Documents. All drawings, specifications, reports, records,
documents, memoranda, correspondence, computations, and other materials prepared by
Consultant, its employees, subcontractors, and agents in the performance of this Agreement
shall be the property of City and shall be promptly delivered to City upon request of the
Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim
for further employment or additional compensation as a result of the exercise by City of its full
rights of ownership of the documents and materials hereunder. Any use of such completed
documents for Other projects and/or use of incomplete documents without specific written
�authortzatierr-by the-C�t wit/-seat the-Uty s sole�and-without--ll ity-tor-Consultant,
and the City shall indemnify the Consultant for all damages resulting therefrom. Consultant
may retain copies of such documents for its own use. Consultant shall have an unrestricted
right to use the concepts embodied therein. Consultant shall ensure that all its subcontractors
shall provide for assignment to City of any documents or materials prepared by them, and in
the event Consultant fails to secure such assignment, Consultant shall indemnify City for all
damages resulting therefrom.
7.4 Release of Documents. All drawings, specifications, reports, records,
documents, and other materials prepared by Consultant in the performance of services under
this Agreement shall not be released publicly without the prior written approval of the Contract
Officer. All information gained by Consultant in the performance of this Agreement shall be
considered confidential and shall not be released by Consultant without City's prior written
authorization.
Audit and_I'll nsnection of Records_ After receipt of reasonahle nofira and during
the regular business hours of City, Consultant shall provide City, or other agents of City, such
access to Consultant's books, records, payroll documents, and facilities as City deems
Page 12 of 18
15
necessary to examine, copy, audit, and inspect all accounting books, records, work data,
documents, and activities directly related to Consultant's performance under this Agreement.
Consultant shall maintain such books, records, data, and documents in accordance with
generally accepted accounting principles and shall clearly identify and make such items readily
accessible to such parties during the term of this Agreement and for a period of three (3) years
from the date of final payment by City hereunder.
8. ENFORCEMENT OF AGREEMENT
8.1 California Law and Venue. This Agreement shall be construed and interpreted
both as to validity and as to performance of the Parties in accordance with the laws of the
State of California. Legal actions concerning any dispute, claim, or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of Riverside,
State of California, or any other appropriate court in such County, and Consultant covenants
and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 Interpretation. This Agreement shall be construed as a whole according to its
fair language and common meaning to achieve the objectives and purposes of the Parties.
The terms of this Agreement are contractual and the result of negotiation between the Parties.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil
Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be
employed in the interpretation of this Agreement. The caption headings of the various sections
and paragraphs of this Agreement are for convenience and identification purposes only and
shall not be deemed to limit, expand, or define the contents of the respective sections or
paragraphs.
8.3 ' Termination. City may terminate this Agreement for its convenience at any time,
without cause, in whole or in part, upon giving Consultant thirty (30) days written notice. Upon
such notice, City shall pay Consultant for Services performed through the date of termination.
Upon receipt of such notice, Consultant shall immediately cease all work under this
Agreement, unless the notice provides otherwise. Thereafter, Consultant shall have no further
Cairns against the City under this Agreement. t►inn termnation of the_Agreement-p�to
this section, Consultant shall subrnit to the City an invoice for work and services performed
prior to the date of termination. In addition, the Consultant reserves the right to terminate this
Agreement at any time, with or without cause, upon sixty (60) days written notice to the City,
except that where termination is due to material default by the City, the period of notice may be
such shorter time as the Consultant may determine.
8.4 Default of Consultant.
A. Consultant's failure to comply with any provision of this Agreement shall
constitute a default.
B. If the City Manager, or his designee, determines that Consultant is in
default in the performance of any of the terms or conditions of this Agreement, he/she shall
notify Consultant in writing of such default. Consultant shall have ten (10) days, or such longer
period as City may designate, to cure the default by rendering satisfactory performance. In the
event Consultant fails to cure its default withtn such period of time, City shall have the right,
notwithstanding any other provision of this Agreement, to terminate this Agreement without
Page 13 of 18
16
further notice and without prejudice of any remedy to which City may be entitled at law, in
equity, or under this Agreement. Consultant shall be liable for any and all reasonable costs
incurred by City as a result of such default. Compliance with the provisions of this section shall
not constitute a waiver of any City right to take legal action in the event that the dispute is not
cured, provided that nothing herein shall limit City's right to terminate this Agreement without
cause pursuant to Section 8.3.
C. If termination is due to the failure of the Consultant to fulfill its obligations
under this Agreement, City may, after compliance with the provisions of Section 8.4.8, take
over the work and prosecute the same to completion by contract or otherwise, and the
Consultant shall be liable to the extent that the total cost for completion of the Services
required hereunder exceeds the Maximum Contract Amount (provided that the City shall use
reasonable efforts to mitigate such damages), and City may withhold any payments to the
Consultant for the purpose of set-off or partial payment of the amounts owed the City as
previously stated. The withholding or failure to withhold payments to Consultant shall not limit
Consultant's liability for completion of the Services as provided herein.
8.5 Waiver. No waiver of any provision of this Agreement shall be effective unless in
writing and signed by a duly authorized representative of the Party against whom enforcement
of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant,
condition, or term contained in this Agreement, shall not be construed to be a waiver of any
subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and
complete compliance with any of the covenants, conditions, or terms contained in this
Agreement be construed as changing the terms of this Agreement in any manner or preventing
the Parties from enforcing the full provisions hereof.
8.6 Rights and Remedies Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties
are cumulative and the exercise by either Party of one or more of such rights or remedies shall
not preclude the exercise by it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other Party. _
8.7 Lenal Action. In addition to any other rights or remedies, either Party may take
legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for
any default, to compel specific performance of this Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
8.8 Attorney Fees. In the event any dispute between the Parties with respect to this
Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be
entitled, in addition to such other relief as may be granted, to recover from the non-prevailing
Party all reasonable costs and expenses, including but not limited to reasonable attorney fees,
expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or
in collection of any judgment entered in such proceeding. To the extent authorized by law, in
the event of a dismissal by the plaintiff or petitioner of the litigation or non-judicial proceeding
within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be
the prevailing Party in such litigation or proceeding.
9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
Page 14 of 18
17
9.1 Non-liability of City Officers and Employees. No officer or employee of the
City shall be personally liable to the Consultant, or any successor-in-interest, in the event of
any default or breach by the City or for any amount which may become due to the Consultant
or to its successor, or for breach of any obligation of the terms of this Agreement.
9.2 Conflict of Interest. No officer or employee of the City shall have any financial
interest, direct or indirect, in this Agreement nor shall any such officer or employee participate
in any decision relating to the Agreement which effects his financial interest or the financial
interest of any corporation, partnership, or association in which he/she is, directly or indirectly,
interested in violation of any state statute or regulation. Consultant warrants that it has not
paid or given and will not pay or give any third party any money or other consideration in
exchange for obtaining this Agreement.
9.3 Covenant Against Discrimination. In connection with its performance under
this Agreement, Consultant shall not discriminate against any employee or applicant for
employment because of race, religion, color, sex, age, marital status, ancestry, or national
origin. Consultant shall ensure that applicants are employed, and that employees are treated
during their employment, without regard to their race, religion, color, sex, age, marital status,
ancestry, or national origin. Such actions shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship.
10. MISCELLANEOUS PROVISIONS
10.1 Patent and Copyright Infringement.
A. To the fullest extent permissible under law, and in lieu of any other
warranty by City or Consultant against patent or copyright infringement, statutory or otherwise,
it is agreed that Consultant shall defend at its expense any claim or suit against City on
account of any allegation that any item furnished under this A reeme or the normal use or _
nafiGe, tit-this-AgreBmen infringes upvi'—'�.:�� p.....—M.
existing U.S. letters patent or copyright and Consultant shall pay all costs and damages finally
awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the
suit or claim and given authority, information and assistance at Consultant's expense for the
defense of same, and provided such suit or claim arises out of, pertains to, or is related to the
negligence, recklessness or willful misconduct of Consultant. However, Consultant will not
indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that
City's alteration of such deliverable created the infringement upon any presently existing U.S.
letters patent or copyright; or(2) the use of a deliverable in combination with other material not
provided by Consultant when it is such use in combination which infringes upon an existing
U.S. letters patent or copyright.
B. Consultant shall have sole control of the defense of any such claim or suit
and all negotiations for settlement thereof, Consultant shall not be obligated to indemnify City
under any settlement made without Consultant's consent or in the event City fails to cooperate
in the defense of any suit or_claim, provided, however that such defense shall, be at _
Consultant`s expense. if the use or sale of such item is enjoined as a result of the suit or
claim, Consultant, at no expense to City, shall obtain for City the right to use and sell the item,
Page 15 of 18
18
or shall substitute an equivalent item acceptable to City and extend this patent and copyright
indemnity thereto.
10.2 Notices. All notices or other communications required or permitted hereunder
shall be in writing, and shall be personally delivered, sent by pre-paid First Class U.S. Mail,
registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by
facsimile with attached evidence of completed transmission, and shall be deemed received
upon the earlier of (i) the date of delivery to the address of the person to receive such notice if
delivered personally or by messenger or overnight courier; (ii) five (5) business days after the
date of posting by the United States Post Office if by mail; or (iii) when sent if given by
facsimile. Any notice, request, demand, direction, or other communication sent by facsimile
must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of
electronic transmission such as e-mails, text messages, instant messages are not acceptable
manners of notice required hereunder. Notices or other communications shall be addressed
as follows:
To City: City of Palm springs
Attention: City Manager& City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332
To Consultant: DMC Design Group, Inc.
140 North Maple Street, Suite 104
Corona, CA 92880
Attention: David M. Cosper, PE
Telephone: (951)549-8100
Facsimile: (951) 549-8102
entire Agmernent._ This Agreement constitutes biahmeen_
-the-Parties rnegotiatio m ntatiorm,-- -
and understandings, if any, made by or among the Parties with respect to the subject matter
hereof. No amendments or other modifications of this Agreement shall be binding unless
executed in writing by both Parties hereto, or their respective successors, assigns, or grantees.
10.4 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be determined to be invalid by a final judgment or decree of a
court of competent jurisdiction, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the reminder of that provision, or the remaining
provisions of this Agreement unless the invalid provision is so material that its invalidity
deprives either Party of the basic benefit of their bargain or renders this Agreement
meaningless.
10.5 Successors in Interest. This Agreement shall be binding upon and inure to the
-benefit...of_the.-Padies'-sur�az scgr_a-and.-issignees-
10.6 Third Party Beneficiary. Except as may be expressly provided for herein,
Page 16 of 18
19
nothing contained in this Agreement is intended to confer, nor shall this Agreement be
construed as conferring, any rights, including, without limitation, any rights as a third-party
beneficiary or otherwise, upon any entity or person not a party hereto.
10.7 Recitals. The above-referenced Recitals are hereby incorporated into the
Agreement as though fully set forth herein and each Party acknowledges and agrees that such
Party is bound, for purposes of this Agreement, by the same.
10.8. Corporate Authority. Each of the undersigned represents and warrants that (i)
the Party for which he or she is executing this Agreement is duly authorized and existing, (ii)
he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for
which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is
signing is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not viotate.any provision of any other Agreement to which the Parry for which
he or she is signing is bound.
(SIGNATURES ON FOLLOWING PAGE)
Page 17 of 18
20
IN WITNESS WHEREOF, the City and the Consultant have caused this Agreement to be
executed the day and year first above written.
ATTEST: CONTENTS APPROVED:
CITY OF PALM SPRINGS, CA
By By
City Clerk City Manager
Date: Date:
By
City Engineer
Date:
APPROVED AS TO FORM: APPROVED BY CITY COUNCIL:
By Date: Agreement No.
City Attorney
Date:
CONSULTANT
Name:
Check one:_Individual_Partnership_Corporation
Cor{�orations.re4u:re - ;_ One sign must be #orn Ghairm n--of Baerd;-President, or any Vise
�h2Srk n_a't__t.c____�_ „_nt•_f
eF,BRd-Sig eCretaFy-is mm�ccrzca TfeaS�,Posmtat*Tfeasurer�or-cruet
Financial Officer.
Address:
By: By:
Signature (notarized) Signature (notarized)
Name: Name:
Title: Title:
Page 18 of 18
21
CALIFORNIA ALL-PULSE ACKNOWLEDGMENT
State of California
County of
On oar before me, ele inert ame T o1 near
personally appeared
ro)of egner(o1 -
who proved to me on the basis of satisfactory evidence to
be the parson(s) whose name(s) Ware subscribed to the
within fnstrurnent and acknowledged to rite that
haWwMey wmxded the same in hirer ffteir authorized
capaci ies), and that by ftsATerAWr siyr rks)on the
Instrument the person(s), or the entity upon behalf of
which the person(s)acted,e»cuted the Instrument
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph Is
true and correct.
WITNESS my hand and official seal.
Pbea NaWi Som m,os Signature awn rr worry
OPTIONAL.
Though the kdoffmWon babw to not r8wdW by Jim It ow pm vatireMe to parsons rely w or Via dboun=t
and could pmwnt fn u *r&rerrmvel and resiteahu mlP of this A=to anogw ob arntent
Description of Attached Document
We or'iype of Doownern:
Document Data: Plumber of Pages:
Capsclty(les)Claimed by Signers)
Signet's Name: Signer's Net=
❑ Individual ❑individual
❑ Corporate Officer—Tl"): ❑Corporate Ofter—Ttte(s):
❑ Partner—O Limbed ❑General ❑Partner—❑Urnited ❑General
El Attorney in Fa0 Attorney
❑ Tnastee d Top d»nmc het 0Trtstee in Fad Topof0m. tea
El Guardian or Conservator, El Guardian or Conservator
❑ Other. ❑01 ar:
Signer Is Representing. Signer Is Representing
eam Hatlaul NobryAwntlxpn•9�OOeeari AgPPea2Po2.tletma+hW BI319�60¢•rranik4mrNoWyrg ewna99m nmNor.CdTaefim14868i"WV
22
EXHIBIT "A"
SCOPE OF SERVICES
SCOPE OF SERVICES FOLLOWS THIS PAGE
23
SEC77ONB: SCOPEOFWORK
MANAGEMENT PLAN
DMC's project approach is based upon a proactive Project Management Plan that originates with
our Proposal and is finalized with the initiation of the Notice to Proceed by the City. In
summary, our Management Plan will communicate to each member of the Consultant Team the
organization and communication procedures, task descriptions and assignments, schedule
requirements, cost and resource budgets, project data and design guidelines. One of the key steps
in preparing a useful Management Plan is the development of a detailed Project Work Plan. To
develop this plan, a series of interface meetings will take place among the members of the
Consultant Team to clearly identify the multiple activities required to complete this project.
These activities will include not only specific project tasks, but also agency reviews and
approvals, quality control processes and milestones for deliverables. Assignment of
responsibilities for each activity will also be designated, as generally shown on the proposed
Organizational Chart for this project. Whenever necessary, modifications to the Organizational
Chart will be made in order to stren 1' s ability to meet changing project
needs and as specific requir v e . is detailed Project Work Plan,
many of the potential p nstr ' id -fled, expedite the project are
developed, and the ave uni . n earn enhanced at this initial
stage of this project.
The ability to cl coNmum a aU e, s les and technical
matters, is a vital epff-dY coo o team members
is required to a eANIt ted p s e quality services
within strict b tim c str f or n r r ff e and frequent
communicatio n
Key to the en anag nt segue succes of s projec the role of the
Project Mana ThePr a er respo le gh di nation of all
project activiti shing th t r emen o r ctive, h on management
approach. The Oct an le eeen and the City,
interfacing with e utillty ies. The Project
Alauager he lading s reparatio of
-
ugesdss mrd -meetin d i r s between City staiT
subconsultants and oth e .
QUALITY CONTROL
Once the final work plan is complet assignments communicated to each
Project Team Member, DMC will develop a defined Quality Control (QC) Plan specific to this
project. The QC Plan will guide the Project Team in the management and implementation of
quality throughout the life of this project, not merely "just checking it" at the end of each task.
The preparation and implementation of the QC Plan will be integrated into the work plan as a
specific task and will be applied continuously and at strategic points in the work process by
Project Team Members. The QC Plan will include procedures for both administrative and
technical controls, such as project files, routing of correspondence, checking and back checking
procedures, design notebooks, check lists, etc.
DMC intends to assign Mr. Christopher Wiberg, P.E. as the Quality Control Manager for this
project. Aa-the Quality Control Manager, he will be responsible for the t- -
implementation of a Project Quality Control Plan that ensures the following:
1
DESIGN GIB 24
SmYoNB: SCOPEoFWORK
• A high standard of quality and accuracy of all project surveys, design reports,
correspondence, right-of-way documents and maps, PS&E's, and other applicable
documents pertinent to the construction of the proposed improvements;
• Compliance with applicable codes, regulations and design standards;
• A detailed independent review of the PS&E package, with numerous in-depth field reviews
emphasizing project biddability, constructability and claims avoidance.
As the Quality Control Manager, Mr. Wiberg, will be responsible for the development,
implementation and management of specific quality control measures applicable to this project,
including the review of plans prepared by DMC and the preparation of technical reports,
specifications and construction cost/quantity estimates from draft and final plans.
WORKPL4N
Based upon our current of the projec , ticipates the project will be
completed in the follo )phas
• Phase 1 —Enviro A1410 al t
sto
• Phase 2—Engi esi 1 ecifi an a
• Phase 3—Ri -V�aa S ces
Phase I—Env' t p v t
Task 1.01 Pro Resear — 1 earch availa e Ci , utility any and other
agency and de er d ess to s ure tnfo on required to
identify, locate accurst all prow en ti and ts, centerlines,
right-of-way limi d pri ate ra��
pavement'surface ar si „ , ew _ - ps, fences, structures
and existing landscap' ti r v e ' ried within the project
limits. Pictures/videos wi o e t ea existing conditions.
Task 1.03 Topographic Survey — the City to obtain known survey
data for this site. DMC will complete an accurate topographic survey of the project site,
including the horizontal and vertical control of all existing culture, overhead and underground
utilities, curb, gutters, ramps, medians and driveways. DMC will establish one (1) temporary
bench mark at or near the intersection of Mesquite Avenue and Belardo Road, and at the westerly
terminus of Mesquite Avenue for use during construction.
Task 1.04 Base Map Development—Utilizing research documents and field survey data, DMC
will develop a project area base map of the project segment of Mesquite Avenue at a scale of 1"
= 20' (max.), accurately showing the vertical and horizontal locations (where possible) of all
existing right-of-way lines,property lines, site culture, utilities and other potential obstruction of
2 DESIGN GROUF�- 25
SEmoNB: SCOPE OF WORK
Task 1.05 Initial Utility Coordination - DMC will identify and officially notify all affected
utility companies providing services within the limits of the project intersections and request
copies of utility maps, plans, and records of existing facilities. Field reviews will be conducted
to locate and verify all surface evidence of existing sub-surface and overhead installations within
the limits of this project. All utility information obtained from its research effort and field
reviews will be plotted on the Base Map. DMC will initiate the development of a Utility Log of
all future correspondence with the affected utilities.
Task 1.06 Environmental Clearance - DMC, through PMC World (PMC), will complete the
following environmental clearance activities based upon the project being a categorically exempt
project from CEQA and a categorically excluded project from NEPA. It is understood and
assumed:
❑ The City of Palm Springs will be a and to CEQA;
'N
❑ The FHWA will be the I with regd to NE ,
❑ Any environment is d stu ies ar by D
VIC/P r the City for CEQA
clear;or
e will b y e b t a the FHWA;
❑ Any dina the way ` 's ated through the
Tribe;
❑ . PMC, thro co the T e0su lly implement
the Project
The following detaile p roken wn by comp l ervices for the
environmental essAwp e t t proje co wig th sumptions and
understanding d sed abo + lb
PMC will prepare ft Notice Ivi11 as the C documentation for
thisreject-After will brnit7a-PDF
of die signed NOE o i o t t lie office. Once the NOE
is stamped by the Co r o e ed notice with the State
Clearinghouse. Note that o e s t m st of the Fish and Game or
Riverside County Clerk filing fe
Task 1.07 Concept Development - Using topographic and mapping information developed in
previous tasks, DMC will develop alternative concept exhibits of the proposed improvements to
the project segment of Mesquite Avenue and the South Lykken Trailhead parking lot for
presentation to the City and Tribe. The concept exhibits will be prepared in a single strip format
with aerial backdrop of a sufficient scale to understand existing conditions and project impacts.
In addition to showing the limits of existing and proposed improvements, the alternative concept
exhibits will also clearly demonstrate right-of-way limits,utility locations and other culture in the
immediate project area that may be impacted by the proposed improvements, such as adjacent
grades, driveway accesses, drainage improvements, existing sidewalk improvements, ramps,
street trees, fencing, mailboxes, and so on. DMC will develop concept level estimates of
constructm-quantities and costs-firer each alternative concept for Both Mesquite Avenuewa&the
proposed parking area. DMC will prepare a Preliminary Design Report summarizing project
issues and will include concept plans and costs to 35% complete level of the recommended
3 oESMaN r,>RHNF�r 26
SECTioNB: SCOPEOFWoRK
concepts after presentation to the City. Three (3) copies of the draft Preliminary Design Report
with all exhibits, including the concept plans and costs, will be submitted to the City for review
and approval. The report will be revised, as necessary, until approved by the City. Three (3)
copies of the final report will be submitted to the City. The final report will be used as a
reference document during the next phase of this project.
Phase 2—Engineering Design (Plans, Specifications and Estimates)
Task 2.01 Utility Coordination — DMC will continue to coordinate with the affected utilities
companies by completing the following activities:
• Maintain the Utility Log of all correspondence with utilities;
• Identify potential conflicts;
• As potential conflicts are i out t coordinate with the affected
utility agencies until the is res j
• Provide not, Al
cafio rs copi t� o b e vi certified receipt, to
the all affected u ' genc t 1 com e al stages.
Task 2.02 Geot c e ga 'llto In GS) will provide
all geotechnica pp s ces reconnaissance,
subsurface exp on sition of s s ple r oratory testing,
analysis of fiel I a a formal r mVVp ally, HGS will
provide the foll g servi
• Excavate fo ) e to t b s a dep f fiv ( a*c Mesquite Road
and one (1) on al bo in f five fe w e exis ound surface in
the proposed ead ar
00
-COMAMite"qu 4x s ' efit
• Evaluate by laborato ei o various strata which may
influence the proposed p s ' itu dry density and moisture
content, soil gradation (4200 st ensity/ optimum moisture content
determinations, and resistance(R-Value ;
• Develop alternative pavement sections and rehabilitation alternatives appropriate for the
design Traffic Index for Mesquite Avenue(It is assumed that the Traffic Index for each street
will be provided by the City of Palm Springs);
HGS will summarize its findings and recommendations into a report that will include, in addition
to conclusions and recommendations, a plot plan, exploration logs, recommendations regarding
pavement rehabilitation and structural sections for roadway and parking lot sections, grading
recommendations within the parkway and summary of laboratory test results.
4
DESIGN GAS 27
SmYoNB: SCOPEoFWORK
Task 2.03 Plans, Specifications and Estimates (PS&E's) — DMC will prepare clear, concise
and accurate PS&E's of the proposed roadway improvements. hi general, the PS&E's will
conform to the City of Palm Spring's standards and practices.
Task 2.03.01 Plans — DMC will design and prepare construction plans that will be required for
the proposed roadway and parking lot improvements. Based upon our current understanding of
the project,DMC will prepare the following plan sheets:
Description No. of Sheets
• Title Sheet 1
• General Note Sheet 1
• Detail Sheets 2
• Demolition/R 1
• Roadway an a 2
• On-Site nt P d
• Stripi Ian
I eets
Plans will be tted to e a ec utilities or r •ew at 80% complete,
100% complet e and a n e tag-. MC it fpur ( is of blueprints
with each sub -1• d c received from
the City will be orated s bmitted e City on Mylar,
wet stamped by ec' n . 0 R A?t 1
fi k 2 0 -—
docwnents fax this
project:
• Detailed Project Descripri
I�
• Bid Schedule;
• Bid Item Descriptions;
• Payment Methods;
• Special Provisions;
• Technical Specifications.
The documents will be prepared in Microsoft Word in Green Book format and submitted to the
_ -�-'�review at the RO% cmm�lete 100% rnm_____'_„�letr,efa�uP__and final crravn rhPrk e
5
DESIriN GIB 28
SwnoArB.' SCOPE OF WORK
2.03.03 Estimates—DMC will prepare a comprehensive list of bid items, their quantities and unit
costs, and the probable cost of construction that will be submitted to the City for review. The
final construction cost estimate shall be based upon and in agreement with the final estimated
quantities shown on the bid sheet. The estimates will be prepared in Excel format and submitted
to the City for review at the 100% complete stage and final screen check stage.
Task 2.04 Storm Water Pollution Prevention Plan (SWPPP) — DMC will prepare a project
specific SWPPP plan, including the following tasks:
1. File a Notice of Intent(NOI) with the State(if required);
2. Prepare a Plan that meets the following objectives:
- Identify all pollutant sources ' ment that may negatively affect quality of
storm water discharge-
• Recommend i tion tff e Best ent Practices (BMPs) to
reduce or to Ilut sin sIo ater ed non-stormwater)
discharge ct '
Devel m ' ten e s the wet and dry
wea otis;
• Cre si s e fic a a g d s ent and erosion
con o
• If is fil pl on o s pr ct, ansfer ship, file all
appl e ha f rma ' n *No of Termination
(NO ,
Task 2.05 Site V ) bM c o a visits this phase of this
projeet: RAS -
WgI11BCdlltld
• First Site Visit — Th sit b or submittal of the 80%
complete PS&E's to the eup f i vi ' eck field conditions with
information shown on the p
• Second Site Visit — The second site visit wi a complete prior to submittal of the 100%
complete PS&E's. The purpose of the second site visit is to conduct a constructability review
and to confirm that all issues have been addressed in the plans.
Task 2.06 Project Specific WQMP—Because the proposed parking lot is over 500 sf in surface
area, DMC will prepare a WQMP for the proposed parking lot improvements in compliance with
the State of California and the County of Riverside Flood Control and Water Conservation
District for review and approval by the City of Palm Springs.
Task 2.07 Bid Support — DMC will assist the City during the bidding process by addressing
questie s- gardiag_ow_f!anQ a atio s: _Avv;Uv, rw„..., _
preparation and issuance of Project addendums, attendance at the pre-bid meeting to address
6 DESIGN G 29
Sw7yoNB: SCOPE of WORK
questions by bidders, and attendance at the City Council meeting to award the contract to address
questions by Council Members.
Task 2.08 Construction Support — DMC will assist the City during the construction phase by
providing the following services:
• Address design related questions pertinent to the approved plans and specifications through
written responses to RFI's and Contractor's request for clarifications;
• Prepare record drawings for the City based on redlines provided by the Contractor.
Phase 3—Right-of-Way Services
Task 3.01 Right-of-Way Map — DMC will r are a right-of-way map centered on Mesquite
Avenue, beginning one hundred ( oad and ending at the terminus of
Mesquite Avenue to the we cu a adjacent to this segment of
Mesquite Avenue. The e b o> re info d will show right-of--way
needs for this project.
Task 3.02 Acquis' oc n set of acquisition
documents (legal p 'on/ pl r t va s required for the
construction of r p is a p erti Additional legal
descriptions wil r o the G s o h within the Fee
Proposal.
Task 3.03 Ap al ep O er Inc. (OP ) will s vesting deeds,
property profil maps, re ' epo rem vali for six onths or until
there is an o p h e pie f reco ed b oct�riet needed. This
information wil roved o d real ate se for})he on this project.
Upon review of do r a e cepti o be cleared and
confirm that the disp pro plan. OPC will
then facilitate c _scriptions,_if
necessary,for _
One (1) appraisal report b ce ppr 15cordance with the United
States Principal and Practi Stan ederal and state laws and
requirements in accordance F i-al report shall be performed in a
format assuming the potential action is emment domain (condemnation), including, but not
limited to, such considerations as highest and best use as if vacant, damages to the remainder and
so forth. Five(5) copies of the appraisal report shall be submitted to the City.
Task 3.04 Negotiation/Acquisition Services— OPC will take a lead role in negotiating right-of-
way acquisition for the City by making early contact with the affected property owner(APN 513-
300-046) and coordinating as-needed meetings between the property owner, appropriate City
personnel and the Project Manager/Engineer. OPC will provide escrow services for the transfer
of funds for the acquisition of right-of-way.
T'aak 3M_Coordinaltion witkTrihe DMC and OPC will cnnrdinate.with the City and,Txihe
on all right-of-way issues pertaining to right of way acquisitions on Tribal allotted lands. The
City and Tribe will coordinate directly with the BIA.
7
Ulm
o�, ,�, 30
EXHIBIT "B"
SPECIAL REQUIREMENTS
Add the following to Section 2.0, Compensation:
Section 2.5, Cost Principles. The Cost Principles and Procedures, 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31 et seq., are the governing factors
regarding allowable elements of cost. The administrative requirements set forth in 49 CFR,
Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments, is hereby included by reference. The provisions of this section
shall apply to all subcontracts in excess of$25,000.
Add the following to Section 2.0, Compensation:
Section 2.6, General Compliance with Laws and Wage Rates. Consultant warrants
that its cost proposal, approved by City and identified on the Schedule of Compensation as set
forth in Exhibit "E", complies with all federal, state and local laws and ordinances applicable to
the work, including compliance with prevailing wage rates and their payment in accordance
with California Labor Code, Section 1775.
Add the following to Section 4.0, Coordination of Work:
Section 4.5, Subcontracts. Any subcontracts or contractual arrangements
("subcontracts") between the Consultants and other parties ("subcontractors") entered into in
the performance of this Agreement to which the City is not named shall include all applicable
provisions of this Agreement and the Consultant shall require that its subcontractors thereby
comply with all such applicable provisions.
Section 7.5, Audit and Inspection of Records, the following sentence shall be added
at the end of the paragraph:
Consultant's_ records--shall be--availabis for-AtspoGtion by City, -floe- state of Calfkmi
Department- -ofi Transportation-, and thePe—de-rat Highway A mmi`stra tt on, or Aheir duly
authorized representatives. This section shall also apply to all subcontracts in excess of
$25,000.
Add the following to Section 10.0, Miscellaneous Provisions:
Section 10.9, Covenant Against Contingent Fees. The Consultant warrants that
he/she has not employed or retained any company or person, other than a bona fide employee
working for the consultant; to solicit or secure this agreement; and that he/she has not paid or
agreed to pay any company or person other than a bona fide employee,any fee, commission,
percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from
the award, or formation of this agreement. For breach or violation of this warranty, the City
shall have the right to annul this agreement without liability, or at its discretion; to deduct from
the agreement price or consideration, or otherwise recover the full amount of such fee,
commission, percentage, brokerage fee, gift, or contingent fee.
Add the following to Section 10.0, Miscellaneous Provisions:
Exhibit"B"
Page 1 of 5 31
-
Section 10.10, Patent Rights. This agreement includes herein by reference applicable
patent rights provisions described in 41 CFR 1-9.1 regarding rights to inventions.
Add the following to Section 10.0, Miscellaneous Provisions:
Section 10.11, Endorsement. The responsible consultant/engineer shall sign all plans,
specifications, estimates (PS&E) and engineering data furnished by him/her, and where
appropriate, indicate his/her California registration number.
Add the Following to Section 10.0, Miscellaneous Provisions:
Section 10.12, Disadvantaged Business Enterprise (DBE) Requirements. The City
has established a DBE goal for this Agreement of % .
1. TERMS USED IN THIS SECTION
1. The term "Disadvantaged Business Enterprise" or"DBE" means a for-profit small
business concern owned and controlled by a socially and economically disadvantaged
person(s) as defined in Title 49, Part 26.5, Code of Federal Regulations (CFR).
2. The term "Agreement' also means "Contract."
3. Agency also means the local entity entering into this contract with the Contractor or
Consultant.
4. The term "Small Business" or"SB" is as defined in 49 CFR 26.65.
2. AUTHORITY AND RESPONSIBILITY
A. DBEs and other small businesses are strongly encouraged to participate in the
performance of Agreements financed in whole or in part with federal funds (See 49
CFR 26, "Participation by Disadvantaged Business Enterprises in Department of
Transportation Financial Assistance Programs"). The Contractor should ensure that
DBEs and other small businesses have the opportunity to participate in the
-perfiirrfighce o `i'h k afis Rio��uld take
necessary and reasonable steps for this assurance. The proposer shall not
discriminate on the basis of race, color, national origin, or sex in the award and
performance of subcontracts.
B. Proposers are encouraged to use services offered by financial institutions owned and
controlled by DBEs.
3. SUBMISSION OF DBE INFORMATION
If there is a DBE goal on the contract, a "Local Agency Consultant DBE Commitment"
(Exhibit 10-01)form shall be included in the Request for Proposal. After the contract is
awarded form "Local Agency Consultant DBE Commitment' (Exhibit 10-02)form shall be
included in the contract documents. in order for a proposer to be considered responsible
and responsive, the proposer.must make good faith efforts to meet the goal established for
the contract. if the goal is not met, the proposer must document adequate good faith
arts. Alf-DBE participationw.91-be-seunted-tomkivd& -santFa€t-geak;-and-ali-,DBE
participation shall be collected and reported.
Exhibit`B"
Page 2 of 5
32
The purpose of the form is to collect data required under 49 CFR 26. This form collects all
DBE participation. Even if no DBE participation will be reported, the successful proposer
must execute and return the form.
4. DBE PARTICIPATION GENERAL INFORMATION
It is the proposer's responsibility to be fully informed regarding the requirements of 49 CFR,
Part 26, and the Department's DBE program developed pursuant to the regulations.
Particular attention is directed to the following:
A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified
through the California Unified Certification Program (CUCP).
B. A certified DBE may participate as a prime contractor, subcontractor, joint venture
partner, as a vendor of material or supplies, or as a trucking company.
C. A DBE proposer not proposing as a joint venture with a non-DBE, will be required to
document one or a combination of the following:
1. The proposer is a DBE and will meet the goal by performing work with its own
forces.
2. The proposer will meet the goal through work performed by DBE subcontractors,
suppliers or trucking companies.
3. The proposer, prior to proposing, made adequate good faith efforts to meet the goal.
D. A DBE joint venture partner must be responsible for speck contract items of work or
clearly defined portions thereof. Responsibility means actually performing, managing,
and supervising the work with its own forces. The DBE joint venture partner must share
in the capital contribution, control, management, risks and profits of the joint venture
commensurate with its ownership interest.
€. A D13E must perform a ccmmercialty usefutfunctian pursuant to 49-CFR26.W,-that-Ts
a DBE firm must be responsible for the execution of a distinct element of the work and
must carry out its responsibility by actually performing, managing and supervising the
work.
F. The proposer shall list only one subcontractor for each portion of work as defined in
their proposal and all DBE subcontractors should be listed in the bid/cost proposal list
of subcontractors.
G. A prime contractor who is a certified DBE is eligible to claim all of the work in the
Agreement toward the DBE participation except that portion of the work to be
performed by non-DBE subcontractors.
5. RESOURCES
A. The CUCP database includes the certified DBEs from all certifying agencies
particir5zle" you eve a!�t�ti is clfied thaf can�ot-'he foci on ffie
Exhibit•B„
Page 3 of 5 33
database, please contact the Caltrans Office of Certification toll free number 1-866-
810-6346 for assistance.
B. Access the CUCP database from the Department of Transportation, Civil Rights,
Business Enterprise Program web site at: hftp://www.dot.ca.gov/hq/bep/.
• Click on the link in the left menu titled Disadvantaged Business Enterprise
• Click on Search for a DBE Firm link
• Click on Access to the DBE Query Form located on the first line in the center of
the page
• Searches can be performed by one or more criteria
• Follow instructions on the screen
C. How to Obtain a List of Certified DBEs without Intemet Access:
DBE Directory - If you do not have Intemet access, Caltrans also publishes a directory
of certified DBE firms extracted from the online database. A copy of the directory of
certified DBEs may be ordered from the Caltrans Publications Unit at (916) 263-0822,
1900 Royal Oaks Drive, Sacramento, CA 95815-3800.
6. MATERIALS OR SUPPLIES PURCHASED FROM DBES COUNT TOWARDS THE DBE
GOAL UNDER THE FOLLOWING CONDITIONS:
A. If the materials or supplies are obtained from a DBE manufacturer, count 100 percent
of the cost of the materials or supplies. A DBE manufacturer is a firm that operates or
maintains a factory, or establishment that produces on the premises the materials,
supplies, articles, or equipment required under the Agreement and of the general
character described by the specifications.
B. eg-l - _ QY-pe[
cent of
if tfie materials or supp purchased from a DBE re ular deafer, o4 f
the cost of the materials or supplies. A DBE regular dealer is a firm that owns, operates
or maintains a store, warehouse, or other establishment in which the materials,
supplies, articles or equipment of the general character described by the specifications
and required under the Agreement are bought, kept in stock, and regularly sold or
leased to the public in the usual course of business. To be a DBE regular dealer, the
firm must be an established, regular business that engages, as its principal business
and under its own name, in the purchase and sale or lease of the products in question.
A person may be a DBE regular dealer in such bulk items as petroleum products, steel,
cement, gravel, stone or asphalt without owning, operating or maintaining a place of
business provided in this section.
C. If the person both owns and operates distribution equipment for the products, any
supplementing of regular dealers' own distribution equipment shall be, by a long-term
lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers,
brokers, manufacturers' representatives, or other persons who arrange or expedite
rf artsacT ons d e not-D18E regular d-eafers-OTn--We°meaning of t iTs se n:
Exhibit`B"
Page 4 of 5 34
D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a
regular dealer, will be limited to the entire amount of fees or commissions charged for
assistance in the procurement of the materials and supplies, or fees or transportation
charges for the delivery of materials or supplies required on the job site, provided the
fees are reasonable and not excessive as compared with fees charged for similar
services.
7. FOR DBE TRUCKING COMPANIES: CREDIT FOR DBES WILL COUNT TOWARDS THE
DBE GOAL UNDER THE FOLLOWING CONDITIONS:
A. The DBE must be responsible for the management and supervision of the entire
trucking operation for which it is responsible on a particular Agreement, and there
cannot be a contrived arrangement for the purpose of meeting the DBE goal.
B. The DBE must itself own and operate at least one fully licensed, insured, and
operational truck used on the Agreement.
C. The DBE receives credit for the total value of the transportation services it provides on
the Agreement using trucks it owns, insures, and operates using drivers it employs.
D. The DBE may lease trucks from another DBE firm including an owner-operator who is
certified as a DBE. A DBE who leases trucks from another DBE receives credit for the
total value of the transportation services the lessee DBE provides on the Agreement.
E. The DBE may also lease trucks from a non-DBE firm, including an owner-operator. A
DBE who leases trucks from a non-DBE is entitled to credit only for the fee or
commission it receives as a result of the lease arrangement. A DBE does not receive
credit for the total value of the transportation services provided by the lessee, since
these services are not provided by the DBE.
F. For the purposes of this Section D, a lease must indicate that the DBE has exclusive
-use,arad ear*ef evertheTruck. This does not frorrrwarkfng
for others during the ferm ofthe lease with the consent of the DBE, as long as the
lease gives the DBE absolute priority for use of the leased truck. Leased trucks must
display the name and identification number of the DBE.
END OF EXHIBIT "B"
EyNbit`B"
Page 5 of 5
35