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respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc. Page 9 of 14 employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon 30 days’ written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc. Page 10 of 14 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall included, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties. 9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Subsection 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement. Section 10. MISCELLANEOUS PROVISIONS. Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc. Page 11 of 14 10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous 12 months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of California Government Code Section 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for for any Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc. Page 12 of 14 sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of California Government Code Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. 10.9 Contract Administration. This Agreement shall be administered by Kevin Chun ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: Construction Testing Services, Inc. Attn: William Cale 2174 Rheem Drive, Suite A Pleasanton, CA 94588 Any written notice to City shall be sent to: City of San Leandro Attn: Kevin Chun, P.E. Engineering and Transportation Department 835 East 14th Street San Leandro, CA 94577 10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. _________________________________________ Seal and Signature of Registered Professional with report/design responsibility. 10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, C, D, E represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc. Page 13 of 14 Exhibit A Scope of Services Exhibit B Compensation Schedule & Reimbursable Expenses Exhibit C Indemnification Exhibit D California Labor Code Section 1720 Information Exhibit E Special Inspection Letter 10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 10.14 Certification per Iran Contracting Act of 2010. In the event that this contract is for one million dollars ($1,000,000.00) or more, by Consultant’s signature below Consultant certifies that Consultant, and any parent entities, subsidiaries, successors or subunits of Consultant are not identified on a list created pursuant to subdivision (b) of Section 2203 of the California Public Contract Code as a person engaging in investment activities in Iran as described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5 of the California Public Contract Code, as applicable. SIGNATURES ON FOLLOWING PAGE Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc. Page 14 of 14 The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear below certify that they are authorized to sign on behalf of the respective Party. CITY OF SAN LEANDRO CONSULTANT Chris Zapata, City Manager Bill Cale, Project Manager Attest: Marian Handa, City Clerk Approved as to Fiscal Authority: David Baum, Finance Director Account Number 593-52-252-5240 Approved as to Form: Jayne W. Williams, City Attorney 1969630.1 Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit A Page 1 of 2 EXHIBIT A SCOPE OF SERVICES 1. UNDERSTANDING. The City of San Leandro (City) owns and operates a 7.6-mgd rated average dry weather flow (ADWF) Water Pollution Control Plant (WPCP) located in San Leandro, California. Carollo Engineers (Consultant) has completed design of the WPCP Rehabilitation Project to restore the capacity and function of the WPCP with improvements to various existing facilities and by adding new facilities. Construction of the project will be performed by S.J. Amoroso Construction Co., Inc. Construction Management of the project will be provided by the City. This contract is to provide additional Special Inspection as required for the construction of the aforementioned improvements. Inspections are to be performed as required by the plans and specifications, by code compliance, and by the project manager. This Scope of Services is based on a construction period of 690 working days (approximately 32 months) from Contractor’s notice to proceed. 2. SCOPE OF WORK – INSPECTIONS. Onsite Testing and Inspections (820 inspection hours have been budgeted for this task): a. Reinforced Concrete – Footings, grade beams, walls, columns, slab on grade, other b. Structural Masonry c. Epoxy Bolts/Proof Load d. Field Welding e. NACE coating inspections Soils Testing and Inspections (483 inspection hours have been budgeted for this task): a. Earthwork/compaction A 5% project management and admin fee will be charged monthly per invoice. 3. TIME OF PERFORMANCE. a. Job site inspection hours are Monday through Friday 6am to 6pm, observations and inspections will be scheduled during these hours. Observations or inspections scheduled outside of these hours shall be charged as described in Exhibit “B” b. Consultant shall be given a written schedule of work; changes to the schedule shall be issued at least 48 hours in advance of the work. c. Consultant shall perform observation and inspections within 48 hours of request by City. Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit A Page 2 of 2 4. CONSULTANT DELIVERABLES The Consultant deliverables are as follows: Daily Field Report – Due daily at jobsite Mix Design Reviews by Engineer – Within 1 week of submittal Weekly Typed Summary Reports – Weekly Basis Weekly Laboratory Testing Results – Weekly Basis Itemized Invoice with Budget Analysis – Monthly Basis Final Affidavit in a format acceptable to the City per Exhibit “E” Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit B Page 1 of 6 EXHIBIT B COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES ITEM: I ESTIMATED UNIT ESTIMATED ONSITE TESTING & INSPECTIONS HOURS PRICE TOTAL 160 $65 $10,400 80 $65 $5,200 100 $65 $6,500 240 $65 $15,600 240 $85 $20,400 Sub-Total of On-Site Testing & Inspection $58,100 ITEM: II ESTIMATED UNIT ESTIMATED SOILS TESTING AND INSPECTIONS HOURS PRICE TOTAL 483 $65 $31,395 Sub-total of Soils Testing & Inspection $31,395 Subtotal $89,495 Project Management & Administration 5% $4,505 Total $94,000 MASONRY EPOXY BOLTS/PROOF LOAD NACE COATING INSPECTIONS FIELD WELDING CONCRETE (Includes Rebar) FOOTINGS/GRADE BEAMS WALLS & COLUMNS SLAB ON GRADE OTHER EARTHWORK/COMPACTION Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit B Page 2 of 6 Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit B Page 3 of 6 Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit B Page 4 of 6 Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit B Page 5 of 6 Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit B Page 6 of 6 Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit C Page 1 of 1 EXHIBIT C INDEMNIFICATION A. Consultant shall, to the extent permitted by law, indemnify, hold harmless and assume the defense of, in any actions at law or in equity, the City, its employees, agents, volunteers, and elective and appointive boards, from all claims, losses, and damages, including property damage, personal injury, death, and liability of every kind, nature and description, arising out of, pertaining to or related to the negligence, recklessness or willful misconduct of Consultant or any person directly or indirectly employed by, or acting as agent for, Consultant, during and after completion of Consultant’s work under this Agreement. B. With respect to those claims arising from a professional error or omission, Consultant shall defend, indemnify and hold harmless the City (including its elected officials, officers, employees, and volunteers) from all claims, losses, and damages arising from the professionally negligent acts, errors or omissions of Consultant. C. Consultant's obligation under this section does not extend to that portion of a claim caused in whole or in part by the sole negligence or willful misconduct of the City. Consultant shall also indemnify, defend and hold harmless the City from all suits or claims for infringement of any patent rights, copyrights, trade secrets, trade names, trademarks, service marks, or any other proprietary rights of any person or persons because of the City or any of its officers, employees, volunteers, or agents use of articles, products things, or services supplied in the performance of Consultant’s services under this Agreement. Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit D Page 1 of 4 EXHIBIT D PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ. HOURS OF WORK: A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the services described in Exhibit A shall constitute a legal day’s work under this contract. B. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the services described in Exhibit A is limited to 8 hours during any one calendar day, and 40 hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of 8 hours during any one calendar day and 40 hours during any one calendar week is permitted upon compensation for all hours worked in excess of 8 hours during any one calendar day and 40 hours during any one calendar week at not less than one-and-one-half times the basic rate of pay. C. The Consultant and its subcontractors shall forfeit as a penalty to the City $25 for each worker employed in the performance of the services described in Exhibit A for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day, or more than 40 hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following. WAGES: A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City Public Works Office and shall be made available on request. The Consultant and subcontractors engaged in the performance of the services described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A. B. In accordance with California Labor Code Section 1775, the Consultant and any subcontractors engaged in performance of the services described in Exhibit A shall comply with California Labor Code Section 1775, which establishes a penalty of up to $50 per day for each worker engaged in the performance of the services described in Exhibit A that the Consultant or any subcontractor pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subcontractor in meeting applicable prevailing wage obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit D Page 2 of 4 prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their obligations under the California Labor Code. The Consultant or subcontractor shall pay the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements: 1. The contract executed between the Consultant and the subcontractor for the performance of part of the services described in Exhibit A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815. 2. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor’s certified payroll records. 3. Upon becoming aware of a subcontractor’s failure to pay the specified prevailing rate of wages, the Consultant shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for performance of the services described in Exhibit A. 4. Prior to making final payment to the subcontractor, the Consultant shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages for employees engaged in the performance of the services described in Exhibit A and any amounts due pursuant to California Labor Code Section 1813. C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following: 1. The information contained in the payroll record is true and correct. 2. The employer has complied with the requirements of California Labor Code Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project. The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be available for inspection by the Owner and its authorized representatives, the Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit D Page 3 of 4 Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776. D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the Consultant and any subcontractors engaged in performance of the services described in Exhibit A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts. E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance of the services described in Exhibit A to employ for the services described in Exhibit A any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Consultant or subcontractor shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to services described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment. Consulting Services Agreement between Project No. 08-593-52-239 City of San Leandro and CTS, Inc.—Exhibit D Page 4 of 4 EXHIBIT E SPECIAL INSPECTION LETTER Date [Your company file number] Permit No. _____________ Mr. William Schock Chief Building Official Civic Center City of San Leandro 835 E. 14th Street San Leandro, CA 94577 RE: Final Letter for _________________ XYZ Company 1234 Main Street San Leandro, CA Dear Mr. Schock: This is to certify that, as defined in Section 1702 of the Uniform Building Code and the City of San Leandro Municipal Code, we have provided those structural observations listed below: 1. Reinforcing Steel Inspection 2. Structural Concrete 3. Structural Welding Inspection 4. Epoxy Anchors, Wedge Anchors, and Anchor Bolts 5. Field and Shop Welding The completed observations noted above were performed by personnel under the supervision of the undersigned Registered __________ Engineer in the State of California. Based both upon observations performed and upon our substantiating reports, it is our professional judgment that, to the best of our knowledge, the observed work was performed in accordance with industry standards and practices, and the approved plans and specifications. If you have any questions, or if we may be of further assistance, please do not hesitate to contact our office at (____) ____ -_________. Respectfully submitted, [Company Name] [Type Your Name Here] [Job Title] [R__E No. ____________] Insert Registered Professional Engineer Seal