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22-0621_GMU GEOTECHNICAL, INC._Agenda Report_F1aCity of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Benjamin Siegel, City Manager SUBMITTED BY: Thomas Toman, Public Works Director PREPARED BY: Joe Parco, P.E., City Engineer Paul Meshkin, P.E., Senior Civil Engineer DATE: June 21, 2022 SUBJECT: Award of Contract for Construction of the Camino Capistrano Pavement Rehabilitation Project (R.J. Noble Company, Inc.); and, approval of a Professional Services Agreement for Material Testing and Inspection Support Services (GMU Geotechnical, Inc.) (CIP 19102) RECOMMENDATION: 1.Award a construction contract for the Camino Capistrano Pavement Rehabilitation Project (CIP 19102) to the lowest responsible bidder, R.J. Noble Company, in the amount of $7,918,241, and authorize the City Manager to execute the contract and approve change orders, including pavement rehabilitation efforts for San Juan Creek Road immediately east of Camino Capistrano to Valle Road (and potentially segments of Valle Road), pending funding availability, for a total construction contingency not to exceed $1,590,000; and, 2.Approve and authorize the City Manager to execute a Professional Services Agreement with GMU Geotechnical, Inc. in the amount of $89,000 for material testing and inspection support services during construction of the proposed project. This amount includes a 10% contingency. 6/21/2022 F1a City Council Agenda Report June 21, 2022 Page 2 of 6 EXECUTIVE SUMMARY: The Camino Capistrano Pavement Rehabilitation Project was advertised for construction on April 21, 2022, and three bids were received on June 2, 2022. A location map is included as Attachment 1. Staff recommends that the City Council award a construction contract to the lowest responsible bidder, R.J. Noble Company, in the amount of $7,918,241 (Attachment 2). It is also recommended that the City Manager be authorized to approve change orders in an amount not-to-exceed $1,590,000, which is approximately 20% of the base contract amount. As a result of the bid received from R.J. Noble, there will likely be additional opportunities for pavement rehabilitation projects in the vicinity of Camino Capistrano (i.e., San Juan Creek Road from Camino Capistrano to Valle Road and possibly portions Valle Road itself). Lastly, staff recommends that the City Council approve and authorize the City Manager to execute a Professional Services Agreement with GMU Geotechnical, Inc. in the amount of $89,000 which includes a 10% contingency to provide material testing and inspection services during construction. (Attachment 3). DISCUSSION/ANALYSIS: The project scope of work generally includes the removal of existing failed pavement and construction of new pavement surface. The project entails grading, excavation, saw- cutting, milling of existing street asphalt concrete pavement, reconstruction of existing non-compliant ramps, removal and replacement of damaged curb, gutter and sidewalk, signing and striping, and adjustment of existing manholes, pull boxes and valve covers, to match the new pavement surface grade. The project encompasses the following street segments: • Camino Capistrano from the City’s southern city limit (Dana Point) northerly to La Zanja Street • Camino Capistrano from the Trabuco Creek Bridge to the City’s northern city limit (Laguna Niguel) • Stonehill Drive from Camino Capistrano westerly to the Dana Point city limit • Avenida Aeropuerto between Camino Capistrano and the railroad tracks • Ortega Highway between Camino Capistrano and El Camino Real Pavement rehabilitation of the section of Camino Capistrano located between Junipero Serra Road and the Trabuco Creek Bridge will be done under a separate contract, since it is funded by a combination of federal funds (i.e., Coronavirus Response and Relief Supplemental Appropriations Act of 2021) in the amount of $200,000 and local funds in the amount of $400,000. Federally-funded projects are required to obtain Caltrans authorization before they can be advertised for construction. Staff has been working closely with the Orange County Transportation Authority (OCTA) and Caltrans since January 2022 and is currently finalizing preparation of the required documents for submittal to Caltrans in order to secure required authorization to proceed with construction of that section. Staff anticipates returning to the City Council for approval of City Council Agenda Report June 21, 2022 Page 3 of 6 a construction contract for this portion of Camino Capistrano in October 2022, which would then be integrated into construction of the larger project. The portion of Camino Capistrano between La Zanja Street and Oso Road was rehabilitated in summer 2016. This section of roadway is currently in very good condition and will not require preventative maintenance or pavement rehabilitation efforts for several years. Base Bid Results The table below provides a summary of the base bid results: Bidders Base Bid Amounts R.J. Noble Company $7,486,241 PALP dba Excel Paving Company $8,159,825 All American Asphalt, Inc. $8,445,610 The Engineer’s Estimate for this project is $8,500,000. Staff has checked R.J. Noble’s references, licenses, and payment bonds, and has received positive feedback on the past performance of this contractor. In fact, R.J. Noble has successfully completed multiple street pavement projects for the City of San Juan Capistrano, including: the Meredith Canyon community, the Capistrano Villas I, II, and III, and Camino Capistrano between La Zanja Street and Oso Road. R.J. Noble is one of the largest and most reputable paving contractors in Southern California. Alternate Bid Items As part of the project, staff is recommending the inclusion of two (of four) Alternate Bid items: 1) Excavation; and, 2) Aggregate Base. The total cost of the two recommended Alternate Bid items is $432,000. By including these two items, the City would be able to cover any unforeseen conditions in the project’s 17” thick deep cut sections located south of San Juan Creek Road on Camino Capistrano. These pavement sections of Camino Capistrano are very old and in a state of significant disrepair. If a suitable base material (i.e., the natural soil/earth below the existing asphalt pavement) is not reached after the 17” thick removal section, the contractor would excavate deeper until a suitable base condition is reached. Then, the aggregate base material would be used to fill the additional excavation up to the bottom of the 17” thick section. Including these alternate bid items in the proposed project secures a unit price for both. This prevents future negotiations, and likely premium costs, for these items via a “change order” after contract award. Ultimately, these two items would not be used if the predicted 17” thick removal section is adequate. The third and fourth Alternate Bid items – adjustment of Santa Margarita Water District (SMWD) Sewer and Water Utilities for City Council Agenda Report June 21, 2022 Page 4 of 6 $473,200 – is not recommended for inclusion in the proposed project as SMWD will be providing the adjustment of utilities. Based on the bid amount, staff anticipates project savings which is recommended to be applied toward pavement rehabilitation efforts for San Juan Creek Road (immediately east of Camino Capistrano to Valle Road) and potential segments of Valle Road. The recommended action would authorize the City Manager to authorize up to the full construction contingency of $1,590,000 for this purpose. Construction of the project is scheduled to begin in September and be completed by the end of the calendar year. Construction work on Camino Capistrano between Costco and La Zanja Street will be performed at night, between the hours of 9:00 p.m. and 5:00 a.m. Sunday through Thursday. Material Testing and Construction Support Services On May 3, 2022, staff issued a Request for Proposals (RFP) for certified material testing laboratories and inspection companies to provide material testing and construction site and asphalt plant inspection support services during construction of the project. Three proposals were received in response to the RFP. Staff has evaluated these proposals and recommends awarding the agreement to GMU Geotechnical, Inc. for a total cost of $89,000, which includes a 10% contingency. FISCAL IMPACT: Below is a summary table of the overall anticipated project costs, including staff project management, material testing and inspection, contract inspection services, and archeological and Native American monitoring services. Budget Items Amounts Construction Contract (R.J. Noble Company) $7,918,241 20% Contingency $1,590,000 Construction Cost $9,508,241 Contract Administration and Support Services $860,000 Total Project Construction Cost $10,368,241 Available Project Budget $10,770,000 Remaining Balance $401,759 The remaining balance of $401,759 will be allocated to the pavement rehabilitation of the section of Camino Capistrano between Junipero Serra Road and the Trabuco Creek Bridge, which is partially funded by federal funds, as discussed earlier in the report. City Council Agenda Report June 21, 2022 Page 5 of 6 ENVIRONMENTAL IMPACT: In accordance with the California Environmental Quality Act (CEQA), the recommended action would be exempt from CEQA, per Section 15061(b)(3), the commonsense exemption that CEQA applies only to projects that would have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Furthermore, authorizing the City Manager to execute a construction contract with R.J. Noble Company and a professional services agreement with GMU Pavement Engineering, Inc. would not be an activity with potential to cause significant effect on the environment, and therefore is exempt from CEQA. Additionally, with respect to the scope of work associated with the recommended construction contract, Section 15301, Class 1 (a) exemption allows for repair and maintenance of existing streets, sidewalks, gutters and similar existing facilities with negligible or no expansion of an existing use. The proposed project involves removal of existing failed pavement and construction of new pavement surface. Consequently, staff finds that the proposed project meets the criteria for a categorical exemption. If this construction contract is approved, a notice of exemption will be filed within five days of the action. PRIOR CITY COUNCIL REVIEW: • On April 5, 2022, the City Council approved plans and specifications for the Camino Capistrano Pavement Rehabilitation Project (CIP 19102) and authorized staff to advertise and receive construction bids for the Project. • On January 18, 2022, the City Council adopted a Resolution to authorize the submittal of the Camino Capistrano Pavement Rehabilitation Project (CIP 19102), between Junipero Serra Road and Trabuco Creek Bridge, to the Orange County Transportation Authority for funding under the Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (CRRSAA). • On October 5, 2021, the City Council approved an enhanced Streets Improvement Program spending plan and expanded the scope of the Camino Capistrano Pavement Rehabilitation Project (CIP 19102). COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: This item does not require commission, committee, or board review. City Council Agenda Report June 21, 2022 Page 6 of 6 NOTIFICATIONS: Jennifer De Iongh, R.J. Noble Company Sean Nazari, CNC Engineering Roger Schlierkamp, GMU Pavement Engineering ATTACHMENTS: Attachment 1: Location Map Attachment 2: Proposed Construction Contract Attachment 3: Proposed PSA DELOBISPOSTSANJUANCREEKRDCAMINO DEL AVION CAMINO CAP ISTRANO LAN O V I A AVEORTEGAHIGHWAYALIPAZSTJ U N I P E R O S E RRA RD STONEHILLDR VALLERDRANCHOVI E J ORDCAMINO L A S RAMBLASo Legend Night Work - Phase 1 Night Work - Phase 2 Night Work - Phase 3 Day Work - Phase 4 ATTACHMENT 1 ATTACHMENT 2 PAGE 1 OF 12 00 52 13 – CONTRACT This CONTRACT, No. ________ is made and entered into this ____ day of _______, ______, by and between City of San Juan Capistrano, sometimes hereinafter called “City,” and R. J. Noble Company, Inc., sometimes hereinafter called “Contractor.” WITNESSETH: That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows: a. SCOPE OF WORK. The Contractor shall perform all Work within the time stipulated in the Contract, and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5, below, for the following Project: CAMINO CAPISTRANO PAVEMENT REHABILITATION PROJECT CIP 19102 The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor’s failure to comply with this obligation. a. TIME FOR COMPLETION. Time is of the essence in the performance of the Work. The Work shall be commenced on the date stated in the City’s Notice to Proceed. The Contractor shall complete all Work required by the Contract Documents within 90 calendar days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work. b. CONTRACT PRICE. The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of Seven million Nine Hundred Eighteen Thousand Two Hundred Forty One Dollars ($7,918,241). Payment shall be made as set forth in the General Conditions. c. LIQUIDATED DAMAGES. In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum set forth in Section 00 73 13, Article 1.11 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents. d. COMPONENT PARTS OF THE CONTRACT. The “Contract Documents” include the following: Notice Inviting Bids Instructions to Bidders Bid Form Bid Bond Designation of Subcontractors Information Required of Bidders Non-Collusion Declaration Form Iran Contracting Act Certification ATTACHMENT 2 PAGE 2 OF 12 Public Works Contractor Registration Certification Performance Bond Payment (Labor and Materials) Bond General Conditions Special Conditions Technical Specifications EXHIBIT A – FEDERAL CONTRACT PROVISIONS Addenda Plans and Drawings Standard Specifications for Public Works Construction “Greenbook”, latest edition, Except Sections 1-9 Applicable Local Agency Standards and Specifications, as last revised Approved and fully executed change orders Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents. All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties. e. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE. Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work. f. INDEMNIFICATION. Contractor shall provide indemnification and defense as set forth in the General Conditions. g. PREVAILING WAGES. Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at the City’s Administrative Office or may be obtained online at http://www.dir.ca.gov and which must be posted at the job site. h. FEDERAL CONTRACT PROVISIONS. Funds from the Coronavirus State and Local Fiscal Recovery Funds (“CSLFRF”) will be used to fund all or a portion of this Contract. The Contractor shall comply with all federal requirements including, but not limited to, the following: i. Sections 602 and 603 of the Social Security Act as added by Section 9901 of the American Rescue Plan Act of 2021, U.S. Department of the Treasury Coronavirus State and Local Fiscal Recovery Fund Award Terms and Conditions, Treasury’s Final Rule, and CSLFRF reporting requirements, as applicable (collectively, the “CSLFRF Compliance Requirements”). The CSLFRF Compliance Requirements are expressly incorporated herein by reference. ii. 2 C.F.R. Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, which is expressly incorporated herein by reference. ATTACHMENT 2 PAGE 3 OF 12 iii. Federal Contract Provisions attached hereto as Exhibit “A” and incorporated herein by reference. Subcontracts, if any, shall contain a provision making them subject to all of the provisions stipulated in the Contract, including but not limited to, CSLFRF Compliance Requirements, 2 C.F.R. Part 200, and the Federal Contract Provisions. With respect to any conflict between such federal requirements and the terms herein and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] ATTACHMENT 2 PAGE 4 OF 12 IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written. R. J. Noble Company, Inc. CITY OF SAN JUAN CAPISTRANO Name of Contractor By _____________________________________ Name and Title: _________________________ License No. ____________________________ Date: __________________________________ By______________________________ Benjamin Siegel, City Manager Date: ____________________________ (CONTRACTOR’S SIGNATURE MUST BE NOTARIZED AND CORPORATE SEAL AFFIXED, IF APPLICABLE) Approved as to form this _____________day of 20___. _______________________________ Attorney for City of San Juan Capistrano ATTEST: By: City Clerk San Juan Capistrano END OF CONTRACT ATTACHMENT 2 PAGE 5 OF 12 Notary Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF ______________ On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed 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. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT  Individual  Corporate Officer Title(s) Title or Type of Document  Partner(s)  Limited  General Number of Pages  Attorney-In-Fact  Trustee(s)  Guardian/Conservator Date of Document  Other: Signer is representing: Name Of Person(s) Or Entity(ies) Signer(s) Other Than Named Above ATTACHMENT 2 PAGE 6 OF 12 EXHIBIT “A” FEDERAL CONTRACT PROVISIONS During the performance of this Contract, the Contractor shall comply with all applicable federal laws and regulations including, but not limited to, the federal contract provisions in this Exhibit. 1. REQUIRED CONTRACT PROVISIONS IN ACCORDANCE WITH APPENDIX II TO PART 200 – CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS (2 C.F.R. § 200.327) (a) Appendix II to Part 200 (A); Appendix II to Part 200 (B): Remedies for Breach; Termination for Cause/Convenience. The Contract Documents include remedies for breach and termination for cause and convenience. (b) Appendix II to Part 200 (C) – Equal Employment Opportunity: Except as otherwise provided under 41 C.F.R. Part 60, if this Contract meets the definition of a “federally assisted construction contract” in 41 C.F.R. § 60-1.3, then Contractor shall comply with the following equal opportunity clause, in accordance with Executive Order 11246 of September 24, 1965 entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967 and implementation regulations at 41 C.F.R. Chapter 60: (i) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action 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. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (ii) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (iii) The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information. (iv) The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's ATTACHMENT 2 PAGE 7 OF 12 commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (v) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (vi) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (vii) In the event of the Contractor's noncompliance with the nondiscrimination clauses of this Contract or with any of the said rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (viii) The Contractor will include the portion of the sentence immediately preceding paragraph (i) and the provisions of paragraphs (i) through (vii) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States. The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Contract. The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted ATTACHMENT 2 PAGE 8 OF 12 construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings. (c) Appendix II to Part 200 (D) – Davis-Bacon Act: Not applicable to this Contract since it is funded by the CSLFRF. (d) Appendix II to Part 200 (D) – Copeland “Antti-Kickback” Act: Not applicable to this Contract since it is funded by the CSLFRF. (e) Appendix II to Part 200 (E) – Contract Work Hours and Safety Standards Act: (i) If this Contract is in excess of $100,000 and involves the employment of mechanics or laborers, Contractor shall comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. Part 5). Under 40 U.S.C. 3702, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. (ii) Overtime Requirements. No contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (iii) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (ii) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (ii) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (ii) of this section. (iv) Withholding for unpaid wages and liquidated damages. The City shall upon its own action or upon written request of an authorized representative of the Department of Labor ATTACHMENT 2 PAGE 9 OF 12 withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (iii) of this section. (v) Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (ii) through (v) of this Section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (ii) through (v) of this Section. (f) Appendix II to Part 200 (F) – Rights to Inventions Made Under a Contract or Agreement: (i) If the Federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the non-Federal entity wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the non-Federal entity must comply with the requirements of 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements), and any implementing regulations issued by the Federal awarding agency. (ii) The regulation at 37 C.F.R. § 401.2(a) currently defines “funding agreement” as any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph. (g) Appendix II to Part 200 (G) – Clean Air Act and Federal Water Pollution Control Act: If this Contract is in excess of $150,000, Contractor shall comply with all applicable standards, orders, or requirements issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387). (i) Pursuant to the Clean Air Act, (1) Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., (2) Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental Protection Agency Regional Office, and (3) Contractor agrees to include these requirements in each subcontract exceeding $150,000. (ii) Pursuant to the Federal Water Pollution Control Act, (1) Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., (2) Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate ATTACHMENT 2 PAGE 10 OF 12 Environmental Protection Agency Regional Office, and (3) Contractor agrees to include these requirements in each subcontract exceeding $150,000. (h) Appendix II to Part 200 (H) – Debarment and Suspension: A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and 12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. (i) This Contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such Contractor is required to verify that none of the Contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (ii) Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. (iii) This certification is a material representation of fact relied upon by City. If it is later determined that Contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (iv) Contractor warrants that it is not debarred, suspended, or otherwise excluded from or ineligible for participation in any federal programs. Contractor also agrees to verify that all subcontractors performing work under this Contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Contractor further agrees to notify the City in writing immediately if Contractor or its subcontractors are not in compliance during the term of this Contract. (i) Appendix II to Part 200 (I) – Byrd Anti-Lobbying Act: If this Contract is in excess of $100,000, Contractor shall have submitted and filed the required certification pursuant to the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1353). If at any time during the Contract term funding exceeds $100,000.00, Contractor shall file with the City the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.” Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. (j) Appendix II to Part 200 (J) – §200.323 Procurement of Recovered Materials: (i) Contractor shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency ATTACHMENT 2 PAGE 11 OF 12 (EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement. (ii) In the performance of this Contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting contract performance requirements; or At a reasonable price. (iii) Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (iv) The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.” (k) Appendix II to Part 200 (K) – §200.216 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment: (i) Contractor shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under this Contract. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). (2) Telecommunications or video surveillance services provided by such entities or using such equipment. (3) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. (ii) See Public Law 115-232, section 889 for additional information. (l) Appendix II to Part 200 (L) – §200.322 Domestic Preferences for Procurement: (i) Contractor shall, to the greatest extent practicable, purchase, acquire, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts ATTACHMENT 2 PAGE 12 OF 12 (ii) For purposes of this section: (1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. (2) ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber. ATTACHMENT 3 PAGE 1 OF 14 61147.02100\10974777.3 Updated March 2019 CITY OF SAN JUAN CAPISTRANO PROFESSIONAL SERVICES AGREEMENT This Agreement is made and entered into as of ________________, 20____ by and between the City of San Juan Capistrano, a public agency organized and operating under the laws of the State of California with its principal place of business at 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 (“City”), and GMU Geotechnical, Inc., a CORPORATION, with its principal place of business at 23241 Arroyo Vista RSM, CA 92688 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement. RECITALS A. City is a public agency of the State of California and is in need of professional services for the following project: (hereinafter referred to as “the Project”). B. Consultant is duly licensed and has the necessary qualifications to provide such services. C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.” 2. Compensation. a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B.” b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of Eighty Nine Thousand Dollars ($89,000). This amount is also to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. This amount includes a 10% contingency and requires prior City’s approval before it can be used. Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis. 3. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following ATTACHMENT 3 PAGE 2 OF 14 61147.02100\10974777.3 Updated March 2019 manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Term or Time of Performance]. Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). Consultant shall complete the services required hereunder within 120 calendar days The Notice to Proceed shall set forth the date of commencement of work. 6. Delays in Performance. a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7. Compliance with Law. a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. 8. Standard of Care ATTACHMENT 3 PAGE 3 OF 14 61147.02100\10974777.3 Updated March 2019 Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. 9. Assignment and Subconsultant Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. Independent Contractor Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Commercial General Liability (i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: (1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following: (1) Bodily Injury and Property Damage (2) Personal Injury/Advertising Injury (3) Premises/Operations Liability (4) Products/Completed Operations Liability (5) Aggregate Limits that Apply per Project (6) Explosion, Collapse and Underground (UCX) exclusion deleted (7) Contractual Liability with respect to this Agreement (8) Property Damage ATTACHMENT 3 PAGE 4 OF 14 61147.02100\10974777.3 Updated March 2019 (9) Independent Consultants Coverage (iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability (i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers’ Compensation/Employer’s Liability (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. ATTACHMENT 3 PAGE 5 OF 14 61147.02100\10974777.3 Updated March 2019 d. Professional Liability (Errors and Omissions) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required (i) The following insurance limits are required for the Agreement: Combined Single Limit Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 combined single limit Employer’s Liability $1,000,000 per accident or disease Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. g. Policy Provisions Required ATTACHMENT 3 PAGE 6 OF 14 61147.02100\10974777.3 Updated March 2019 (i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qualifying Insurers (i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. i. Additional Insurance Provisions ATTACHMENT 3 PAGE 7 OF 14 61147.02100\10974777.3 Updated March 2019 (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 12. Indemnification. a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent ATTACHMENT 3 PAGE 8 OF 14 61147.02100\10974777.3 Updated March 2019 jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault. 13. California Labor Code Requirements. a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4. b. If the services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor. 14. Verification of Employment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same. ATTACHMENT 3 PAGE 9 OF 14 61147.02100\10974777.3 Updated March 2019 15. City Material Requirements. Reserved 16. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California. 17 Termination or Abandonment a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. 18 Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City. 19. Organization Consultant shall assign Roger Schlierkamp as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 20. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above. 21. Notice ATTACHMENT 3 PAGE 10 OF 14 61147.02100\10974777.3 Updated March 2019 Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: CITY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Joe Parco, City Engineer CONSULTANT: GMU Geotechnical, Inc 23241 Arroyo Vista RSM, CA 92688 Attn.: Roger Schlierkamp, MSc, PE and shall be effective upon receipt thereof. 22. Third Party Rights Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant. 23. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 24. Entire Agreement This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. 25. Severability The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the remaining provisions unenforceable, invalid or illegal. 26. Successors and Assigns ATTACHMENT 3 PAGE 11 OF 14 61147.02100\10974777.3 Updated March 2019 This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 27. Non-Waiver None of the provisions of this Agreement shall be considered waived by either Party, unless such waiver is specifically specified in writing. 28. Time of Essence Time is of the essence for each and every provision of this Agreement. 29. City’s Right to Employ Other Consultants City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects. 30. Prohibited Interests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 31. Federal Requirements Reserved [SIGNATURES ON FOLLOWING PAGE] ATTACHMENT 3 PAGE 12 OF 14 61147.02100\10974777.3 Updated March 2019 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN CITY OF SAN JUAN CAPISTRANO AND GMU GEOTECHNICAL, INC IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF SAN JUAN CAPISTRANO GMU Pavement Engineering By: By: Benjamin Siegel City Manager Its: Printed Name: ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney ATTACHMENT 3 PAGE 13 OF 14 61147.02100\10974777.3 Updated March 2019 EXHIBIT A Scope of Services ATTACHMENT 3 PAGE 14 OF 14 61147.02100\10974777.3 Updated March 2019 EXHIBIT B