HomeMy WebLinkAboutCC 2026-06-23_09g 2026 Streets Overlay ProjectItem 9.g.
MEMORANDUM
TO: City Council
FROM: Shannon Sweeney, Acting Public Works Director/City Engineer
BY: Theresa Wren, Capital Improvement Projects Manager
SUBJECT: Award of FY 2026 Streets Overlay Project (PW 2025-01)
DATE: June 23, 2026
RECOMMENDATION:
1) Authorize the City Manager to execute contract s for the FY 2026 Streets Overlay
Project PW 2025-01 (Project) to CalPortland Construction (CalPortland) and North Coast
Engineering, Inc. (NCE) , subject to any minor, technical, or non-substantive changes as
approved by the City Manager in consultation with the City Attorney; and
2) Find that the project is categorically exempt from CEQA pursuant to CEQA Guidelines
Section 15301(c), Existing Facilities, because it consists of the repair, maintenance, and
minor alteration of existing streets, sidewalks, curb ramps, and related transportation
facilities involving negligible or no expansion of existing use.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
To accomplish the Pavement Management Plan projects for F Y 2025-26 and FY 2026-
27, the FY 2025-26 budget includes $4,139,506 for the Pavement Management Program
(PMP), $1,875,000 allocated from Measure E-24 Local Sales Tax for Halcyon Road
Complete Streets, and $5,841,600 from the FY 2026-27 budget. Funding sources and
Estimated Costs are shown in Tables 1 and 2.
Page 126 of 355
Item 9.g.
City Council
Award of FY 2026 Streets Overlay Project (PW 2025-01)
June 23, 2026
Page 2
TABLE 1. Funding Sources
TABLE 2. Estimated Costs
COSTS AMOUNT ($)
Predesign (Overlay & FDR) 151,350
OVERLAY (THIS PAVING PROJECT)
Design 319,928
Construction (CalPortland) 6,982,979
Construction Contingency (10%) 698,297
Surveying & Monumentation (NCE) 145,060
Estimated Materials Testing 70,000
FULL DEPTH RECLAMATION (NEXT PAVING PROJECT)
Estimated Design 40,000
Estimated Construction 3,000,000
Estimated Construction Contingency (10%) 300,000
Surveying & Monumentation (NCE) 61,123
Estimated Materials Testing 87,369
TOTAL 11,856,106
BACKGROUND:
Completing the engineering design for the 2025 Streets Repair Project is consistent with
the 13-year PMP reviewed and accepted by City Council at its meeting on April 22, 20251.
The indicated repairs will extend the service life of the treated street segments, reduce
future costs, and provide a smoother, safer driving surface. New striping will be installed,
which will provide safer driving facilities. Curb ramps will be upgraded as noted in the
adopted ADA Transition Plan, adopted on October 14, 2025.2
Predesign deflection testing of pavement was conducted on streets proposed for
treatment in 2026 and 2027 in the PMP. It was determined through the predesign testing
that several streets that were anticipated to require full-depth reclamation could be treated
through overlay treatment instead (Newport Avenue, Newport Frontage, Hillcrest Drive,
1https://pub-arroyogrande.escribemeetings.com/Meeting.aspx?Id=290d7d89-520f-4257-a4f2-
d8f615e2f4d4&lang=English&Agenda=Agenda&Item=58&Tab=attachments
2https://pub-arroyogrande.escribemeetings.com/Meeting.aspx?Id=290d7d89-520f-4257-a4f2-
d8f615e2f4d4&lang=English&Agenda=Agenda&Item=58&Tab=attachments
Request Title Funding Source FY 2025-26 FY 2026-27 Total
SB1 481,000$ 495,400$ 976,400$
Measure E-24 Sales Tax 3,577,640$ 5,296,200$ 8,873,840$
CDBG 80,866$ 50,000$ 130,866$
Halcyon Road Complete Streets Measure E-24 Sales Tax 1,875,000$ -$ 1,875,000$
6,014,506$ 5,841,600$ 11,856,106$
Pavement Management Program
Page 127 of 355
Item 9.g.
City Council
Award of FY 2026 Streets Overlay Project (PW 2025-01)
June 23, 2026
Page 3
Chilton Avenue, Sierra Drive, Forest Glen Drive, Olive Street, Todd Lane, Woodland
Court, Vernon Street, Wesley Street, Cross Street, Hawkins Street, and Trinity Avenue).
The overlay treatment provides cost savings over full-depth reclamation (FDR) and
results in a larger overlay project for this Streets Overlay Project (PW 2025-01). The
Streets FDR Project (PW 2026-02) will have a smaller scope than originally anticipated
since there are fewer streets requiring more substantial treatment.
On December 9, 20253, the City Council awarded a contract to Pavement Engineering,
Inc. to develop plans and specifications. The engineer’s estimate for the FY 2026 Streets
Overlay Project was $10,100,000.
ANALYSIS OF ISSUES:
A Notice Inviting Bids was issued on May 20, 2026, published in the local paper, posted
on the City’s website, and distributed to plan rooms and local contractors.
Five bids were received by the bid opening date and time of June 11, 2026, 2:00 PM,
ranging from $6,982,978.65 to $10,582,277.00.
The lowest responsive bid was received from CalPortland Construction for
$6,982,978.65. The funding has been outlined in the Impact on Financial Resources
section. This staff report speaks to only the overlay project and monumentation
professional services agreement, not the upcoming FDR portion of the PMP. FDR costs
are shown as reference only, to demonstrate that sufficient funding is available to
complete the streets identified in the PMP for treatment for both years.
The list of streets receiving treatment in this project is included as Attachment 4.
Special Services
Surveying and monumentation perpetuation are required to document and protect
existing survey markers that may be impacted by construction. This work ensures
important property and roadway reference points can be accurately restored following
completion of the pavement improvements. To comply with the City’s purchasing policy,
scope and fee proposals were solicited from firms on the City’s current On-Call
Professional Services for the FY 26 Streets Overlay, FY 26 Full Depth Reclamation
Project, and Halcyon Complete Streets Project. T wo (2) proposals were received by the
deadline of June 10, 2026.
Staff recommends awarding the survey and monumentation professional services
contract to North Coast Engineering, Inc. (NCE) for $238,424.50. Although this will be
awarded under a single contract, $206,182.50 will be funded by the PMP projects, and
$32,242.00 will be funded from Halcyon Complete Streets Project as shown in Table 3.
3https://pub-arroyogrande.escribemeetings.com/Meeting.aspx?Id=45cb77a4-833c-41fa-af53-
4fa9cb457dd2&lang=English&Agenda=Agenda&Item=53&Tab=attachments
Page 128 of 355
Item 9.g.
City Council
Award of FY 2026 Streets Overlay Project (PW 2025-01)
June 23, 2026
Page 4
Table 3. Survey and Monumentation Costs
NEXT STEPS:
While the overlay project is under construction, staff will go out to bid for plans and
specifications development for the FDR project. Staff anticipates bidding construction for
the FDR as the overlay project finishes. The overlay project has 110 working days.
Assuming a construction start date of mid-August and no major weather issues, the
overlay project is scheduled to end by mid-January. The FDR project will then follow,
depending on weather conditions.
ALTERNATIVES:
1. Staff’s recommendation;
2. Do not approve staff’s recommendation for any contract and request further
information; or
3. Provide other direction to staff.
ADVANTAGES:
Completing the FY 2026 Streets Overlay Project will extend the service life of the treated
street segments, reduce future costs, and provide a smoother, safer driving surface. New
striping will be installed, which will provide safer driving facilities. New or replacement
curb ramps improve safety and accessibility for pedestrians.
DISADVANTAGES:
There will be traffic impacts to the traveling public during construction. Staff will approve
traffic control plans, scheduling, and sequencing to reasonably minimize the impacts. City
staff will be at the site during construction to adjust the traffic control as needed (driveway
access, etc.).
ENVIRONMENTAL REVIEW:
The project is categorically exempt from the California Environmental Quality Act
(“CEQA”) pursuant to the Class 1 exemption for existing facilities (CEQA Guidelines
Section 15301(c)), which applies to the operation, repair, maintenance, permittin g,
leasing, licensing, or minor alteration of existing structures, facilities, mechanical
equipment, or topographical features where the project involves negligible or no
expansion of existing or former use. The Existing Facilities exemption applies because it
consists of the repair, maintenance, and minor alteration of existing streets, sidewalks,
curb ramps, and related transportation facilities involving negligible or no expansion of
existing use.
Survey and Monumentation Scope Quote
FY 26 Streets Overlay Project 145,060.00$
FY 26 Full Depth Reclamation Project (FDR)61,122.50$
Halcyon Complete Streets Project 32,242.00$
238,424.50$
Page 129 of 355
Item 9.g.
City Council
Award of FY 2026 Streets Overlay Project (PW 2025-01)
June 23, 2026
Page 5
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
ATTACHMENTS:
1. Resolution
2. Construction Contract – CalPortland
3. Professional Services Contract – NCE
4. Project Street List
Page 130 of 355
65501.00015\42788974.6
ATTACHMENT 1
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ARROYO GRANDE AUTHORIZING THE CITY MANAGER TO
EXECUTE A CONSTRUCTION CONTRACT FOR THE FY 2026
STREETS OVERLAY PROJECT TO CALPORTLAND
CONSTRUCTION AND A PROFESSIONAL SERVICES
CONTRACT FOR SURVEYING SERVICES TO NORTH COAST
ENGINEERING, INC.
WHEREAS, the City Council awarded a contract to Pavement Engineering, Inc. on
December 9, 2025, for the design of the FY 2026 Streets Overlay Project; and
WHEREAS, the design package was competitively bid and five bids were received
by the bid opening deadline of 2:00 pm on June 11, 2026; and
WHEREAS, staff recommends awarding the construction contract for the FY 2026
Streets Overlay Project to the lowest responsive bidder, CalPortland Construction,
for $6,982,978.65; and
WHEREAS, staff solicited proposals from firms on the City’s current On-Call
Professional Services list for surveying and monumentation services associated with
the FY 2026 Streets Overlay Project, FY 2026 Full-Depth Reclamation Project and
Halcyon Complete Streets Project; and
WHEREAS, two proposals were received by the proposal deadline of June 11, 2026;
and
WHEREAS, staff recommends awarding the professional services contract for
surveying services associated with the FY 2026 Streets Overlay Project, FY 2026
Full-Depth Reclamation Project and Halcyon Complete Streets Project to North Coast
Engineering, Inc., for $238,424.50; and
WHEREAS, the FY 2025-26 and FY 2026-27 budget includes sufficient funding for
the completion of the FY 2026 Streets Overlay Project and the surveying professional
services contract; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Arroyo
Grande, as follows:
1. RECITALS. The foregoing recitals are true and correct and are incorporated
herein.
2. BID AWARD. The City Council authorizes the City Manager or designee to
execute a construction contract for the FY 2026 Streets Overlay Project to
CalPortland Construction for $6,982,978.65 and a professional services
contract for surveying services to North Coast Engineering, Inc. for
Page 131 of 355
RESOLUTION NO.
PAGE 2
$238,424.50, subject to any minor, technical, or non-substantive changes as
approved by the City Manager in consultation with the City Attorney, and to
approve change orders as needed for either project up to $698,297 for
unanticipated costs during construction. The City Council incorporates the
analysis of the Staff Report dated June 23, 2026, accompanying this item, as
part of the passage of this Resolution.
3. CEQA FINDINGS. The City Council finds that the project is categorically
exempt from the California Environmental Quality Act (“CEQA”) pursuant to
the Class 1 exemption for existing facilities (CEQA Guidelines Section
15301(c)), which applies to the operation, repair, maintenance, permitting,
leasing, licensing, or minor alteration of existing structures, facilities,
mechanical equipment, or topographical features where the project involves
negligible or no expansion of existing or former use. The Existing Facilities
exemption applies because it consists of the repair, maintenance, and minor
alteration of existing streets, sidewalks, curb ramps, and related transportation
facilities involving negligible or no expansion of existing use.
On motion of Council Member , seconded by Council Member ,
and on the following roll call vote, to wit:
AYES:
NOES:
ABSENT:
The foregoing Resolution was passed and adopted this 23rd day of June 2026.
Page 132 of 355
RESOLUTION NO.
PAGE 3
_________________________________________
CAREN RAY RUSSOM, MAYOR
ATTEST:
________________________________________
JESSICA MATSON, CITY CLERK
APPROVED AS TO CONTENT:
________________________________________
MATTHEW DOWNING, CITY MANAGER
APPROVED AS TO FORM:
________________________________________
ISAAC ROSEN, CITY ATTORNEY
Page 133 of 355
00 52 13 – SAMPLE CONTRACT
This CONTRACT is made and entered into this 23rd day of June, 2026 by and between City of
Arroyo Grande, sometimes hereinafter called “City,” and CalPortland Construction, 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 Section (e), below, for the following Project:
FY 2026 STREETS OVERLAY PROJECT (PW 2025-01)
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.
b.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 110 WORKING 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.
c.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 Six Million Nine Hundred
Eighty-Two Thousand Nine Hundred Seventy-Eight Dollars and Sixty-Five Cents
($6,982,978.65). Payment shall be made as set forth in the General Conditions.
d.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.
e.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
Public Works Contractor Registration Certification
ATTACHMENT 2
Page 134 of 355
Fleet Compliance Certification
Performance Bond
Payment (Labor and Materials) Bond
General Conditions
Special Conditions
Technical Specifications
Addenda
Plans and Drawings
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.
f. 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.
g. INDEMNIFICATION. Contractor shall provide indemnification and defense as set forth in
the General Conditions.
h. 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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Page 135 of 355
IN WITNESS WHEREOF, this Contract has been duly executed by the above-named
parties, on the day and year above written.
City of Arroyo Grande
Approved By:
Matthew Downing, City Manager
Date
Attested By:
Jessica Matson, City Clerk
Approved As To Form:
Isaac Rosen, Best Best & Krieger
City Legal Counsel
CalPortland Construction
Derek Todd, Vice-President
DTodd@calportland.com
Robert M. Binam, Secretary
RBinam@calportland.com
END OF CONTRACT
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CALPORTLAND
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ATTACHMENT 3
BB&K (2023) -1- PROFESSIONAL SERVICES AGREEMENT
CITY OF ARROYO GRANDE
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 26th day of June, 2026, by and between
the City of Arroyo Grande, a municipal corporation organized under the laws of the State of
California with its principal place of business at 300 E. Branch Street, Arroyo Grande, California
93420, County of San Luis Obispo, State of California ("City") and NORTH COAST
ENGINEERING, INC., a California Corporation, with its principal place of business at 725 Creston
Road, Suite C, Paso Robles, CA 93446 ("Consultant"). City and Consultant are sometimes
individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional services required by the City on the terms and conditions set forth in this Agreement.
Consultant represents that it is experienced in providing professional surveying services to public
clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional services for the Surveying
Services for FY 2026 Streets Overlay Project, FY 2026 Full-Depth Reclamation Project and
Halcyon Complete Streets Project ("Project") as set forth in this Agreement. Services include
monument perpetuation reports, monument and benchmark reestablishment and reinstallation
(as needed), and corner record of survey verification (reinstall as needed). Project Plans for FY
2026 Streets Overlay Project and Halcyon Complete Streets describe their respective project
scope. The streets anticipated with the scope of the FY 2026 Full Depth Reclamation include:
Woodland Drive, Virginia Drive, Creekside Drive, Via La Barranca, Short Street from Poole Street
to Nelson Street, Corbet Canyon from Huasna to Hwy. 227, and Willow Lane.
2.3 Authority
The City Council approved this Agreement and authorized the City Manager to execute this
contract in its June 23, 2026, meeting.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to
the City all labor, materials, tools, equipment, services, and incidental and customary work
necessary to fully and adequately supply the professional engineering design consulting services
necessary for the Project ("Services"). The Services are more particularly described in Exhibit
"A" attached hereto and incorporated herein by reference. All Services shall be subject to, and
performed in accordance with, this Agreement, the exhibits attached hereto and incorporated
herein by reference, and all applicable local, state and federal laws, rules and regulations.
Page 173 of 355
ATTACHMENT 3
BB&K (2023) -2- PROFESSIONAL SERVICES AGREEMENT
3.1.2 Term. The term of this Agreement shall be from June 23, 2026, to
December 31, 2027, unless earlier terminated as provided herein. Consultant shall complete the
Services within the term of this Agreement, and shall meet any other established schedules and
deadlines. The Parties may, by mutual, written consent, extend the term of this Agreement if
necessary to complete the Services.
3.2 Compensation.
3.2.1 Compensation. Consultant shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates set forth
in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall
not exceed TWO-HUNDRED THIRTY-EIGHT THOUSAND FOUR-HUNDRED TWENTY-FOUR
DOLLARS AND FIFTY CENTS ($238,424.50) without written approval of the City Council or City
Manager, as applicable. Extra Work may be authorized, as described below, and if authorized,
will be compensated at the rates and manner set forth in this Agreement.
3.2.2 Payment of Compensation. Consultant shall submit to City a monthly
invoice which indicates work completed and hours of Services rendered by Consultant. The
invoice shall describe the amount of Services provided since the initial commencement date, or
since the start of the subsequent billing periods, as appropriate, through the date of the invoice.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed
and approved charges. If the City disputes any of Consultant's fees, the City shall give written
notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth
therein. Payment shall not constitute acceptance of any Services completed by Consultant. The
making of final payment shall not constitute a waiver of any claims by the City for any reason
whatsoever.
3.2.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City, or included in Exhibit "A" of this Agreement.
3.2.4 Extra Work. At any time during the term of this Agreement, City may
request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which
is determined by City to be necessary for the proper completion of the Project, but which the
Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization
from the City.
3.3 Responsibilities of Consultant.
3.3.1 Independent Contractor; Control and Payment of Subordinates. The
Services shall be performed by Consultant or under its supervision. Consultant will determine the
means, methods and details of performing the Services subject to the requirements of this
Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Consultant shall not be employees of City
and shall at all times be under Consultant's exclusive direction and control. Neither City, or any
of its officials, officers, directors, employees or agents shall have control over the conduct of
Consultant or any of Consultants officers, employees or agents, except as set forth in this
Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in
connection with their performance of Services under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such additional
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ATTACHMENT 3
BB&K (2023) -3- PROFESSIONAL SERVICES AGREEMENT
personnel, including, but not limited to: social security taxes, income tax withholding,
unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.2 Schedule of Services. Consultant shall perform the Services in a prompt
and timely manner and in accordance with the Schedule of Services set forth in Exhibit "A"
attached hereto and incorporated herein by reference. Consultant represents that it has the
professional and technical personnel required to perform the Services expeditiously. Upon
request of City, Consultant shall provide a more detailed schedule of anticipated performance to
meet the Schedule of Services.
3.3.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the approval of City.
3.3.4 Substitution of Key Personnel. Consultant has represented to City that
certain key personnel will perform and coordinate the Services under this Agreement. Should
one or more of such personnel become unavailable, Consultant may substitute other personnel
of at least equal competence upon written approval of City. In the event that City and Consultant
cannot agree as to the substitution of key personnel, City shall be entitled to terminate this
Agreement for cause.
3.3.5 City's Representative. The City hereby designates Matthew Downing, City
Manager, or his/her designee, to act as its representative in all matters pertaining to the
administration and performance of this Agreement ("City's Representative"). City's
Representative shall have the power to act on behalf of the City for review and approval of all
products submitted by Consultant but not the authority to enlarge the Scope of Services or change
the total compensation due to Consultant under this Agreement. The City Manager shall be
authorized to act on City's behalf and to execute all necessary documents which enlarge the
Scope of Services or change the Consultant's total compensation subject to the provisions
contained in this Agreement. Consultant shall not accept direction or orders from any person
other than the City Manager, City's Representative or his/her designee.
3.3.6 Consultant's Representative. Consultant hereby designates Greg Jager,
President, or his/her designee, to act as its representative for the performance of this Agreement
("Consultant's Representative"). Consultant's Representative shall have full authority to represent
and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's
Representative shall supervise and direct the Services, using his/her best skill and attention, and
shall be responsible for all means, methods, techniques, sequences, and procedures and for the
satisfactory coordination of all portions of the Services under this Agreement.
3.3.7 Coordination of Services. Consultant agrees to work closely with City staff
in the performance of Services and shall be available to City's staff, consultants and other staff at
all reasonable times.
3.3.8 Standard of Care; Performance of Employees. Consultant shall perform all
Services under this Agreement in a skillful and competent manner, consistent with the standards
generally recognized as being employed by professionals in the same discipline in the State of
California. Consultant represents and maintains that it is skilled in the professional calling
necessary to perform the Services. Consultant warrants that all employees and subconsultants
shall have sufficient skill and experience to perform the Services assigned to them. Consultant
represents that it, its employees and subconsultants have all licenses, permits, qualifications and
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ATTACHMENT 3
BB&K (2023) -4- PROFESSIONAL SERVICES AGREEMENT
approvals of whatever nature that are legally required to perform the Services, and that such
licenses and approvals shall be maintained throughout the term of this Agreement. Consultant
shall perform, at its own cost and expense and without reimbursement from the City, any services
necessary to correct errors or omissions which are caused by the Consultant's failure to comply
with the standard of care provided for herein. Any employee of the Consultant or its
subconsultants who is determined by the City to be uncooperative, incompetent, a threat to the
adequate or timely completion of the Project, a threat to the safety of persons or property, or any
employee who fails or refuses to perform the Services in a manner acceptable to the City, shall
be promptly removed from the Project by the Consultant and shall not be re-employed to perform
any of the Services or to work on the Project.
3.3.9 Period of Performance.
3.3.9.1 Consultant shall perform and complete all Services under this
Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall
also perform the Services in strict accordance with any completion schedule or Project milestones
described in Exhibit “A” attached hereto, or which may be separately agreed upon in writing by
the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are
not completed within the aforementioned Performance Time and/or pursuant to any such
Performance Milestones developed pursuant to provisions of this Agreement, it is understood,
acknowledged and agreed that the City will suffer damage.
3.3.9.2 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 a Force
Majeure Event. A Force Majeure Event shall mean an event that materially affects a Party’s
performance and is one or more of the following: (1) Acts of God or other natural disasters; (2)
terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without
limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by
governmental authorities that are required for the services); (4) strikes and other organized labor
action occurring at the site and the effects thereof on the services, only to the extent such strikes
and other organized labor action are beyond the control of Consultant and its subcontractors, and
to the extent the effects thereof cannot be avoided by use of replacement workers; and (5)
pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of
governmental authorities,” includes ordinances, emergency proclamations and orders, rules to
protect the public health, welfare and safety, and other actions of a public agency applicable t o
the services and Agreement.
3.3.9.3 Should a Force Majeure Event 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. Force Majeure Events and/or delays, regardless of
the Party responsible for the delay, shall not entitle Consultant to any additional compensation.
Notwithstanding the foregoing in this section, the City may still terminate this Agreement in
accordance with the termination provisions of this Agreement.
3.3.10 Laws and Regulations; Employee/Labor Certification.
3.3.10.1 Compliance with Laws. Consultant shall keep itself fully
informed of and in compliance with all local, state and federal laws, rules and regulations in any
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manner affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. Consultant shall be liable for all violations
of such laws and regulations in connection with the Services and this Agreement. All violations
of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.10.2 Employment Eligibility; Consultant. Consultant certifies 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. Consultant certifies that it has not committed
a violation of any such law within the five (5) years immediately preceding the date of execution
of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.10.3 Equal Opportunity Employment. Consultant represents that it is
an equal opportunity employer and it shall not discriminate against any subconsultant, employee
or applicant for employment because of race, religion, color, national origin, handicap, ancestry,
sex or age. Such non-discrimination shall include, but not be limited to, all activities related to
initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination. Consultant shall also comply with all relevant provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in
effect or hereinafter enacted.
3.3.10.4 Air Quality. To the extent applicable, Consultant must fully
comply with all applicable laws, rules and regulations in furnishing or using equipment and/or
providing services, including, but not limited to, emissions limits and permitting requirements
imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air
Resources Board (CARB). Consultant shall indemnify City against any fines or penalties imposed
by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable
laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is
responsible under its indemnity obligations provided for in this Agreement.
3.3.10.5 Water Quality Management and Compliance. Consultant shall
keep itself and all subcontractors, staff, and employees fully informed of and in compliance with
all local, state and federal laws, rules and regulations that may impact, or be implicated by the
performance of the Services including, without limitation, all applicable provisions of the City’s
ordinances regulating water quality and storm water; the Federal Water Pollution Control Act (33
U.S.C. § 1251, et seq.); the California Porter-Cologne Water Quality Control Act (Water Code
§ 13000 et seq.); and any and all regulations, policies, or permits issued pursuant to any such
authority. Consultant must additionally comply with the lawful requirements of the City, and any
other municipality, drainage district, or other local agency with jurisdiction over the location where
the Services are to be conducted, regulating water quality and storm water discharges. City may
seek damages from Consultant for delay in completing the Services caused by Consultant’s
failure to comply with the laws, regulations and policies described in this Section, or any other
relevant water quality law, regulation, or policy.
3.3.10.6 Safety. Consultant shall execute and maintain its work so as to
avoid injury or damage to any person or property. In carrying out its Services, the Consultant
shall at all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees appropriate
to the nature of the work and the conditions under which the work is to be performed.
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3.3.11 Insurance.
3.3.11.1 Time for Compliance. Consultant shall not commence work
under this Agreement until it has provided evidence satisfactory to the City that it has secured all
insurance required under this section. In addition, Consultant shall not allow any subconsultant to
commence work on any subcontract until it has provided evidence satisfactory to the City that the
subconsultant has secured all insurance required under this section. Failure to provide and
maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.11.2 Types of Insurance Required. As a condition precedent to the
effectiveness of this Agreement for work to be performed hereunder, and without limiting the
indemnity provisions of the Agreement, the Consultant, in partial performance of its obligations
under such Agreement, shall procure and maintain in full force and effect during the term of the
Agreement the following policies of insurance. If the existing policies do not meet the insurance
requirements set forth herein, Consultant agrees to amend, supplement or endorse the pol icies
to do so.
(A) Commercial General Liability: Commercial General Liability
Insurance which affords coverage at least as broad as Insurance Services Office "occurrence"
form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence
and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to
the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for
contractual liability; (2) excluding coverage for claims or suits by one insured against another
(cross-liability); (3) products/completed operations liability; or (4) containing any other
exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile Liability
Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering
"Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all
activities with limits of not less than $1,000,000 combined limit for each occurrence.
(C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of
not less than $1,000,000 per accident for bodily injury and disease.
(D) Professional Liability (Errors & Omissions): Professional
Liability insurance or Errors & Omissions insurance appropriate to Consultant’s profession with
limits of not less than $1,000,000. Covered professional services shall specifically include all
work to be performed under the Agreement and delete any exclusions that may potentially affect
the work to be performed (for example, any exclusions relating to lead, asbestos, pollution,
testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on
a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement
and continuous coverage will be maintained or an extended reporting period will be exercised for
a period of at least five (5) years from termination or expiration of this Agreement.
3.3.11.3 Insurance Endorsements. Required insurance policies shall
contain the following provisions, or Consultant shall provide endorsements on forms approved by
the City to add the following provisions to the insurance policies:
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(A) Commercial General Liability: (1) Additional Insured: The
City, its officials, officers, employees, agents, and volunteers shall be additional insureds with
regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude
"contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other
exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial
General Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10
10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this
requirement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage
reduced until a thirty (30) day written notice of cancellation has been served upon the City except
ten (10) days shall be allowed for non-payment of premium.
(B) Automobile Liability. (1) Cancellation: Required insurance
policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of
cancellation has been served upon the City except ten (10) days shall be allowed for non-payment
of premium.
(C) Professional Liability (Errors & Omissions): 1) Cancellation:
Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day
written notice of cancellation has been served upon the City except ten (10) days shall be allowed
for non-payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall
include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the
insured and include a provision establishing the insurer’s duty to defend.
(D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written
notice of cancellation has been served upon the City except ten (10) days shall be allowed for
non-payment of premium. (2) Waiver of Subrogation: A waiver of subrogation stating that the
insurer waives all rights of subrogation against the City, its officials, officers, employees, agents,
and volunteers.
3.3.11.4 Primary and Non-Contributing Insurance. All policies of
Commercial General Liability and Automobile Liability insurance shall be primary and any other
insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees,
agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be
endorsed to contain such provisions.
3.3.11.5 Waiver of Subrogation. All required insurance coverages,
except for the professional liability coverage, shall contain or be endorsed to 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.
3.3.11.6 Deductibles and Self-Insured Retentions. Any deductible or self-
insured retention must be approved in writing by the City and shall protect the City, its officials,
officers, employees, agents, and volunteers in the same manner and to the same extent as they
would have been protected had the policy or policies not contained a deductible or self-insured
retention.
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3.3.11.7 Evidence of Insurance. The Consultant, concurrently with the
execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall
deliver either certified copies of the required policies, or original certificates on forms approved by
the City, together with all endorsements affecting each policy. Required insurance policies shall
not be in compliance if they include any limiting provision or endorsement that has not been
submitted to the City for approval. The certificates and endorsements for each insurance policy
shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that
such insurance coverage has been renewed or extended shall be filed with the City. If such
coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the
required coverage, Consultant shall, within ten (10) days after receipt of written notice of such
cancellation or reduction of coverage, file with the City evidence of insurance showing that the
required insurance has been reinstated or has been provided through another insurance company
or companies.
3.3.11.8 Acceptability of Insurers. 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 authorized to
transact 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.
3.3.11.9 Enforcement of Agreement Provisions (non estoppel).
Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform
Consultant of non-compliance with any requirement imposes no additional obligation on the City
nor does it waive any rights hereunder.
3.3.11.10 Requirements Not Limiting. Requirement of specific coverage
or minimum 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.
3.3.11.11 Additional Insurance Provisions
(A) 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.
(B) 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.
(C) The City may require the Consultant to provide complete
copies of all insurance policies in effect for the duration of the Project.
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(D) Neither the City nor any of its officials, officers, employees,
agents or volunteers shall be personally responsible for any liability arising under or by virt ue of
this Agreement.
(E) 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 relie ve 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.
(F) Consultant shall report to the City, in addition to Consultant’s
insurer, any and all insurance claims submitted by Consultant in connection with the Services
under this Agreement.
3.3.11.12 Insurance for Subconsultants. Consultant shall include all
subconsultants engaged in any work for Consultant relating to this Agreement as additional
insureds under the Consultant's policies, or the Consultant shall be responsible for causing
subconsultants to purchase the appropriate insurance in compliance with the terms of these
Insurance Requirements, including adding the City, its officials, officers, employees, agents, and
volunteers as additional insureds to the subconsultant's policies. All policies of Commercial
General Liability insurance provided by Consultant’s subconsultants performing work relating to
this Agreement shall be endorsed to name the City, its officials, officers, employees, agents and
volunteers as additional insureds using endorsement form ISO CG 20 38 04 13 or an
endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to
commence work on any subcontract relating to this Agreement until it has received satisfactory
evidence of subconsultant’s compliance with all insurance requirements under this Agreement, to
the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this
section upon request of the City.
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California
Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations,
Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing
wage rates and the performance of other requirements on "public works" and "maintenance"
projects. 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. City shall
provide Consultant with a copy of the prevailing rates of per diem wages in effect at the
commencement of this Agreement. Consultant shall make copies of the prevailing rates of per
diem wages for each craft, classification or type of worker needed to execute the Services
available to interested parties upon request, and shall post copies at the Consultant's principal
place of business and at the project site. It is the intent of the parties to effectuate the
requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code
within this Agreement, and Consultant shall therefore comply with such Labor Code sections to
the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its
officials, officers, employees, agents, and volunteers free and harmless from any claim or liability
arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
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3.4.2 Registration/DIR Compliance. If the Services are being performed on a
public works project of over $25,000 when the project is for construction, alteration, demolition,
installation, or repair work, or a public works project of over $15,000 when the project is for
maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and
1771.1, the Consultant and all subconsultants must be registered with the Department of
Industrial Relations (“DIR”). Consultant shall maintain registration for the duration of the Project
and require the same of any subconsultants.
3.4.3 Compliance Monitoring. This Project may also be subject to compliance
monitoring and enforcement by the DIR. It shall be Consultant’s sole responsibility to comply with
all applicable registration and labor compliance requirements, including the submission of payroll
records directly to the DIR. Any stop orders issued by the DIR against Consultant or any
subconsultant 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 DIR against Consultant
or any subconsultant.
3.4.4 Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require every
employer to be insured against liability for Worker's Compensation or to undertake self-insurance
in accordance with the provisions of that Code, and agrees to comply with such provisions before
commencing the performance of the Services.
3.5 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to
Consultant, terminate the whole or any part of this Agreement at any time and without cause by
giving written notice to Consultant of such termination, and specifying the effective date thereof,
at least seven (7) days before the effective date of such termination. Upon termination, Consultant
shall be compensated only for those Services which have been adequately rendered to City, and
Consultant shall be entitled to no further compensation. Consultant may not terminate this
Agreement except for cause. The rights and remedies of the City provided in this section shall
not be exclusive and are in addition to any other rights and remedies provided by law, equity or
under this Agreement.
3.5.1.2 Effect of Termination. If this Agreement is terminated as
provided herein, City may require Consultant to provide all finished or unfinished Documents and
Data and other information of any kind prepared by Consultant in connection with the performance
of Services under this Agreement. Consultant shall be required to provide such document and
other information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated
in whole or in part as provided herein, City may procure, upon such terms and in such manner as
it may determine appropriate, services similar to those terminated.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel
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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 except such loss or damage caused by
the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall
survive expiration or termination of this Agreement and shall not be restricted to insurance
proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or
volunteers.
3.6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises
out of Consultant’s performance as a “design professional” (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
jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the
Consultant’s proportionate percentage of fault.
3.7 General Provisions.
3.7.1 Accounting Records. Consultant shall maintain complete and accurate
records with respect to all costs and expenses incurred under this Agreement. All such records
shall be clearly identifiable. Consultant shall allow a representative of City during normal business
hours to examine, audit, and make transcripts or copies of such records and any other documents
created pursuant to this Agreement. Consultant shall allow inspection of all work, data,
documents, proceedings, and activities related to the Agreement for a period of three (3) years
from the date of final payment under this Agreement.
3.7.2 Independent Contractors and Subcontracting.
3.7.2.1 Use of Consultants. Consultant is aware of statutory and case
law regarding classification of workers as independent contractors, including California Labor
Code Section 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903
(2018). To ensure that Consultant is in compliance with the California Labor Code, Consultant
shall only utilize its employees to provide the Services. Consultant may not provide the services
through any independent contractor, subcontractor or subconsultant (“Subcontractor(s)”) unless
approved by the City as set forth in Section 3.7.2.2 below. Consultant represents and warrants
that all personnel who perform the Services on Consultant’s behalf are Consultant’s employees,
and that Consultant complies with all applicable laws, rules and regulations governing its
employees, including, but not limited to, the California Labor Code, Unemployment Insurance
Code and all applicable Industrial Welfare Commission Wage Orders.
3.7.2.2 Prior Approval Required. Consultant shall not use any
Subcontractor to provide the Services, or any portion of the work required by this Agreement,
without prior written approval of City. In the event that City authorizes Consultant to use a
Subcontractor, Consultant shall enter into a written agreement with the Subcontractor, which must
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include all provisions of the Agreement, including a restriction on the Subcontractor’s use of
further independent contractors, subcontractors or subconsultants without the City’s prior written
consent.
3.7.3 Delivery of Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
Consultant: North Coast Engineering, Inc.
725 Creston Road, Suite C
Paso Robles, CA 93446
ATTN: Greg Jager, PE, President, CEO
GregJ@northcoastengineering.com
City: City of Arroyo Grande
300 E. Branch Street
Arroyo Grande, CA 93420
ATTN: Matthew Downing, City Manager
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48)
hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
3.7.4 Ownership of Materials and Confidentiality.
3.7.4.1 Documents & Data; Licensing of Intellectual Property. This
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or
sublicense any and all copyrights, designs, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, and other documents or works of authorship fixed in
any tangible medium of expression, including but not limited to, physical drawings or data
magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be
prepared by Consultant under this Agreement ("Documents & Data"). All Documents & Data shall
be and remain the property of City, and shall not be used in whole or in substantial part by
Consultant on other projects without the City’s express written permission. Within thirty (30) days
following the completion, suspension, abandonment or termination of this Agreement, Consultant
shall provide to City reproducible copies of all Documents & Data, in a form and amount required
by City. City reserves the right to select the method of document reproduction and to establish
where the reproduction will be accomplished. The reproduction expense shall be borne by City
at the actual cost of duplication. In the event of a dispute regarding the amount of compensation
to which the Consultant is entitled under the termination provisions of this Agreement, Consultant
shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant
shall have no right to retain or fail to provide to City any such documents pending resolution of
the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a
minimum of fifteen (15) years following completion of the Project, and shall make copies available
to City upon the payment of actual reasonable duplication costs. Before destroying the
Documents & Data following this retention period, Consultant shall make a reasonable effort to
notify City and provide City with the opportunity to obtain the documents.
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3.7.4.2 Subconsultants. Consultant shall require all subconsultants to
agree in writing that City is granted a non-exclusive and perpetual license for any Documents &
Data the subconsultant prepares under this Agreement. Consultant represents and warrants that
Consultant has the legal right to license any and all Documents & Data. Consultant makes no
such representation and warranty in regard to Documents & Data which were prepared by design
professionals other than Consultant or its subconsultants, or those provided to Consultant by the
City.
3.7.4.3 Right to Use. City shall not be limited in any way in its use or
reuse of the Documents and Data or any part of them at any time for purposes of this Project or
another project, provided that any such use not within the purposes intended by this Agreement
or on a project other than this Project without employing the services of Consultant shall be at
City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project,
it shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless
Consultant and its officers, directors, agents and employees from claims arising out of the
negligent use or re-use of the Documents & Data on such other project. Consultant shall be
responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only
with respect to the condition of the Documents & Data at the time they are provided to the City
upon completion, suspension, abandonment or termination. Consultant shall not be responsible
or liable for any revisions to the Documents & Data made by any party other than Consultant, a
party for whom the Consultant is legally responsible or liable, or anyone approved by the
Consultant.
3.7.4.4 Indemnification. Consultant shall defend, indemnify and hold the
City, its directors, officials, officers, employees, volunteers and agents free and harmless,
pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any
patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person
or entity in consequence of the use on the Project by City of the Documents & Data, including any
method, process, product, or concept specified or depicted.
3.7.4.5 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents & Data either created by or provided to Consultant in
connection with the performance of this Agreement shall be held confidential by Consultant. Such
materials shall not, without the prior written consent of City, be u sed by Consultant for any
purposes other than the performance of the Services. Nor shall such materials be disclosed to
any person or entity not connected with the performance of the Services or the Project. Nothing
furnished to Consultant which is otherwise known to Consultant or is generally known, or has
become known, to the related industry shall be deemed confidential. Consultant shall not use
City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or
the Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of City.
3.7.5 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate or convenient to attain the purposes of this Agreement.
3.7.6 Entire Agreement. This Agreement contains the entire agreement of the
Parties with respect to the subject matter hereof, and super sedes all prior negotiations,
understandings or agreements.
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3.7.7 Attorneys’ Fees. If either party commences an action against the other
party, either legal, administrative or otherwise, arising out of or in connection with this Agreement,
the prevailing party in such litigation shall be entitled to have and recover from the losing party
reasonable attorneys’ fees and all costs of such action.
3.7.8 Governing Law. This Agreement shall be governed by the laws of the State
of California. Venue shall be in San Luis Obispo County. In addition to any and all contract
requirements pertaining to notices of and requests for compensation or payment for extra work,
disputed work, claims and/or changed conditions, Consultant must comply with the claim
procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against
the City. Such Government Code claims and any subsequent lawsuit based upon the
Government Code claims shall be limited to those matters that remain unresolved after all
procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been
followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite
contractual requirements are not otherwise satisfied as specified herein, Consultant shall be
barred from bringing and maintaining a valid lawsuit against the City.
3.7.9 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.7.10 City's Right to Employ Other Consultants. City reserves right to employ
other consultants in connection with this Project.
3.7.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.7.12 Assignment or Transfer. 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.
Consultant shall not subcontract any portion of the Services required by this Agreement, except
as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall
contain a provision making them subject to all provisions stipulated in this Agreement.
3.7.13 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any term
referencing time, days or period for performance shall be deemed calendar days and not work
days. All references to Consultant include all personnel, employees, agents, and subconsultants
of Consultant, except as otherwise specified in this Agreement. All references to City include its
elected officials, officers, employees, agents, and volunteers except as otherwise specified in this
Agreement. The captions of the various articles and paragraphs are for convenience and ease
of reference only, and do not define, limit, augment, or describe the scope, content, or intent of
this Agreement.
3.7.14 Amendment; Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.7.15 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
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ATTACHMENT 3
BB&K (2023) -15- PROFESSIONAL SERVICES AGREEMENT
privilege, or service voluntarily given or performed by a Party shall g ive the other Party any
contractual rights by custom, estoppel, or otherwise.
3.7.16 No Third-Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.7.17 Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
3.7.18 Prohibited Interests. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. 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. Consultant further
agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic
Interest with the City’s Filing Officer as required under state law in the performance of the
Services. For breach or violation of this warranty, City shall have the right to rescind this
Agreement without liability. For the term of this Agreement, no member, officer or employee of
City, during the term of his or her service with City, shall have any direct interest in this Agreement,
or obtain any present or anticipated material benefit arising therefrom.
3.7.19 Authority to Enter Agreement. Consultant has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and bind each respective Party.
3.7.20 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.7.21 Survival. All rights and obligations hereunder that by their nature are to
continue after any expiration or termination of this Agreement, including, but not limited to, the
indemnification obligations, shall survive any such expiration or termination.
[SIGNATURES ON NEXT PAGE]
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ATTACHMENT 3
BB&K (2023) -16- PROFESSIONAL SERVICES AGREEMENT
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF ARROYO GRANDE AND
PAVEMENT ENGINEERING, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed
on the day and year first above written.
CITY OF ARROYO GRANDE PAVEMENT ENGINEERING, INC
By:
Greg Jager, President
GregJ@northcoastengineering.com
Approved By:
Matthew Downing
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
Isaac Rosen, City Attorney
Attested By:
Jessica Matson, City Clerk
Page 188 of 355
BB&K (2020) Exhibit “A” PROFESSIONAL SERVICES AGREEMENT
EXHIBIT “A”
Proposals from North Coast Engineering, Inc.
dated June 10, 2026
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ATTACHMENT 3
(BB&K 2017)
Exhibit “D”-2
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ATTACHMENT 3
(BB&K 2017)
Exhibit “D”-3
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ATTACHMENT 3
(BB&K 2017)
Exhibit “D”-4
Page 192 of 355
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