Professional Services Agreement Template

EXHIBIT C

CONSULTING AND PROFESSIONAL

SERVICES AGREEMENT FOR

EAST BAY MUNICIPAL UTILITY DISTRICT

(Project Title)

THIS Agreement is made and entered into this day of (month), 201_, by and between

EAST BAY MUNICIPAL UTILITY DISTRICT, a public entity, hereinafter called

"DISTRICT," and (CONSULTANT'S FULL LEGAL NAME, BOLD, ALL CAPS followed by

type of entity [ corporation, etc.]), hereinafter called "CONSULTANT."

WITNESSETH

WHEREAS, DISTRICT requires consulting services for (need for project); and

WHEREAS, DISTRICT has completed (completed projects that pertain to this project -

optional); and

WHEREAS, CONSULTANT has submitted a proposal to provide consulting services for (state

type -"preparation of planning documents", "preparation of design documents", or

"construction management support services”) for the (project title) and CONSULTANT

represents that it has the experience, licenses, qualifications, staff expertise and where necessary

the required Department of Industrial Relations (DIR) registration to perform said services in a

professional and competent manner; and

WHEREAS, DISTRICT Board of Directors has authorized the contract by Motion

Number ;

ARTICLE 1 - SCOPE OF WORK

1.1 CONSULTANT agrees to furnish services set forth in Exhibit A, Scope of Services,

attached hereto and incorporated herein. The services authorized under this Agreement

shall also include all reports, manuals, plans, and specifications as set forth in Exhibit A.

1.2 CONSULTANT's work products shall be completed and submitted in accordance with

DISTRICT's standards specified, and according to the schedule listed, in Exhibit A. The

completion dates specified herein may be modified by mutual agreement between

DISTRICT and CONSULTANT provided that DISTRICT’s Project Manager notifies

CONSULTANT of modified completion dates by letter. CONSULTANT agrees to

diligently perform the services to be provided under this Agreement. In the performance

of this Agreement, time is of the essence.

1.3 It is understood and agreed that CONSULTANT has the professional skills necessary to

perform the work agreed to be performed under this Agreement, that DISTRICT relies

upon the professional skills of CONSULTANT to do and perform CONSULTANT’s

work in a skillful and professional manner, and CONSULTANT thus agrees to so

perform the work. CONSULTANT represents that it has all the necessary licenses to

perform the work and shall maintain them during the term of this Agreement.

CONSULTANT agrees that the work performed under this Agreement shall follow

practices usual and customary to the (state type - for example "engineering") profession

and that CONSULTANT is the engineer in responsible charge of the work for all

activities performed under this Agreement. Acceptance by DISTRICT of the work

performed under this Agreement does not operate as a release of CONSULTANT from

such professional responsibility for the work performed.

1.4 CONSULTANT agrees to maintain in confidence and not disclose to any person or

entity, without DISTRICT's prior written consent, any trade secret or confidential

information, knowledge or data relating to the products, process, or operation of

DISTRICT. CONSULTANT further agrees to maintain in confidence and not to disclose

to any person or entity, any data, information, technology, or material developed or

obtained by CONSULTANT during the term of this Agreement. The covenants contained

in this paragraph shall survive the termination of this Agreement for whatever cause.

1.5 The originals of all computations, drawings, designs, graphics, studies, reports, manuals,

photographs, videotapes, data, computer files, and other documents prepared or caused to

be prepared by CONSULTANT or its subconsultants in connection with these services

shall be delivered to and shall become the exclusive property of DISTRICT. DISTRICT

is licensed to utilize these documents for DISTRICT applications on other projects or

extensions of this project, at its own risk. CONSULTANT and its subconsultants may

retain and use copies of such documents, with written approval of DISTRICT.

1.6 CONSULTANT is an independent contractor and not an employee of DISTRICT.

CONSULTANT expressly warrants that it will not represent that it is an employee or

servant of DISTRICT.

1.7 CONSULTANT is retained to render professional services only and all payments made

are compensation solely for such services as it may render and recommendations it may

make in carrying out the work.

1.8 It is further understood and agreed by the parties hereto that CONSULTANT in the

performance of its obligations hereunder is subject to the control or direction of

DISTRICT as to the designation of tasks to be performed, the results to be accomplished

by the services hereunder agreed to be rendered and performed, and not the means,

methods, or sequence used by the CONSULTANT for accomplishing the results.

1.9 If, in the performance of this agreement, any third persons are employed by

CONSULTANT, such person shall be entirely and exclusively under the direction,

supervision, and control of CONSULTANT. All terms of employment, including hours,

wages, working conditions, discipline, hiring, and discharging, or any other terms of

employment or requirements of law, shall be determined by CONSULTANT, and

DISTRICT shall have no right or authority over such persons or the terms of such

employment.

1.10 It is further understood and agreed that as an independent contractor and not an employee

of DISTRICT, neither the CONSULTANT nor CONSULTANT’s assigned personnel

shall have any entitlement as a DISTRICT employee, right to act on behalf of DISTRICT

in any capacity whatsoever as agent, nor to bind DISTRICT to any obligation

whatsoever. CONSULTANT shall not be covered by DISTRICT’s worker’s

compensation insurance; nor shall CONSULTANT be entitled to compensated sick leave,

vacation leave, retirement entitlement, participation in group health, dental, life or other

insurance programs, or entitled to other fringe benefits payable by DISTRICT to

employees of DISTRICT.

ARTICLE 2 - COMPENSATION

2.1 For the Scope of Services described in Exhibit A, DISTRICT agrees to pay

CONSULTANT actual costs incurred, subject to a Maximum Cost Ceiling of $(dollars).

Compensation for services shall be in accordance with the method and amounts described

in Exhibit B, attached hereto and incorporated herein. CONSULTANT acknowledges

that construction work on public works projects requires DIR registration and is subject

to prevailing wage rates and includes work performed during the design and

preconstruction phases of construction including, but not limited to, inspection and land

surveying work. CONSULTANT certifies that the proposed cost and pricing data used

herein reflect the payment of prevailing wage rates where applicable and are complete,

current, and accurate.

2.2 In case of changes affecting project scope resulting from new findings, unanticipated

conditions, or other conflicts or discrepancies, CONSULTANT shall promptly notify

DISTRICT of the identified changes and advise DISTRICT of the recommended

solution. Work shall not be performed on such changes without prior written

authorization of DISTRICT.

ARTICLE 3 - NOTICE TO PROCEED

3.1 This Agreement shall become effective upon execution of the second signature.

CONSULTANT shall commence work upon receipt of DISTRICT's Notice to Proceed,

which shall be in the form of a letter signed by DISTRICT's Project Manager.

DISTRICT's Notice to Proceed will authorize the Contracted Services described in

Exhibit A with ceiling prices described in ARTICLE 2 – COMPENSATION. No work

shall commence until the Notice to Proceed is issued.

(Include the following paragraph only if your scope of services includes Optional

Services.)

3.2 DISTRICT may at its option issue a Notice to Proceed for some or all of the Optional

Services tasks described in Exhibit A. Compensation for Optional Services shall be in

accordance with the method and amounts described in Exhibit B.

ARTICLE 4 - TERMINATION

4.1 This Agreement may be terminated by DISTRICT immediately for cause or upon 10 days

written notice, without cause, during the performance of the work.

4.2 If this Agreement is terminated CONSULTANT shall be entitled to compensation for

services satisfactorily performed to the effective date of termination; provided however,

that DISTRICT may condition payment of such compensation upon CONSULTANT's

delivery to DISTRICT of any and all documents, photographs, computer software,

videotapes, and other materials provided to CONSULTANT or prepared by

CONSULTANT for DISTRICT in connection with this Agreement. Payment by

DISTRICT for the services satisfactorily performed to the effective date of termination,

shall be the sole and exclusive remedy to which CONSULTANT is entitled in the event

of termination of the Agreement and CONSULTANT shall be entitled to no other

compensation or damages and expressly waives same. Termination under this Article 4

shall not relieve CONSULTANT of any warranty obligations or the obligations under

Articles 1.4 and 7.1.

(Optional)

4.3 This Agreement may be terminated by CONSULTANT upon 10 days written notice to

DISTRICT only in the event of substantial failure by DISTRICT to fulfill its obligations

under this Agreement through no fault of the CONSULTANT.

ARTICLE 5 - PROJECT MANAGERS

5.1 DISTRICT designates (District Project Manager's name) as its Project Manager, who

shall be responsible for administering and interpreting the terms and conditions of this

Agreement, for matters relating to CONSULTANT's performance under this Agreement,

and for liaison and coordination between DISTRICT and CONSULTANT.

CONSULTANT may be requested to assist in such coordinating activities as necessary as

part of the services. In the event DISTRICT wishes to make a change in the DISTRICT's

representative, DISTRICT will notify CONSULTANT of the change in writing.

5.2 CONSULTANT designates (Consultant Project Manager's name) as its Project

Manager, who shall have immediate responsibility for the performance of the work and

for all matters relating to performance under this Agreement. Any change in

CONSULTANT designated personnel or subconsultant shall be subject to approval by

the DISTRICT Project Manager. (The following sentence is optional.) CONSULTANT

hereby commits an average of (1 to 100) percent of (Consultant Project Manager's

name) time on this project for the duration of the project.

ARTICLE 6 - CONTRACT EQUITY PROGRAM COMPLIANCE

6.1 CONSULTANT expressly agrees that this Agreement is subject to DISTRICT’s Contract

Equity Program (“CEP”). CONSULTANT is familiar with the DISTRICT’s CEP and

Equal Opportunity Guidelines, and has read and understood all of the program

requirements. CONSULTANT understands and agrees to comply with the CEP and all

requirements therein, including each of the Good Faith Efforts. CONSULTANT further

understands and agrees that non-compliance with the CEP requirements may result in

termination of this Agreement.

(Paragraph 6.2 to be used when there is subcontracting/subconsulting opportunities. See CEP

office for details.)

6.2 Designated CEP compliance for the duration of this Agreement is listed in Exhibit C,

which is attached hereto and incorporated herein. CONSULTANT shall maintain records

of the total amount actually paid to each subconsultant. Any change of

CONSULTANT’S listed subconsultants shall be subject to approval by the DISTRICT’S

Project Manager.

ARTICLE 7 - INDEMNIFICATION AND INSURANCE

(IF DEPT. WANTS TO MODIFY INDEMNITY LANGUAGE, PLEASE SUBMIT

JUSTIFICATION IN WRITING TO LEGAL, CC: RISK MANAGER.)

(FOR DESIGN PROFESSIONAL CONTRACTS ( ENGINEERS, ARCHITECTS,

LANDSCAPE ARCHITECTS, LAND SURVEYORS OR THEIR FIRMS), USE 7.1 BEL0W:

7.1 Indemnification

CONSULTANT expressly agrees to defend, indemnify and hold harmless DISTRICT

and its Directors, officers, agents and employees from and against any and all loss,

liability, expenses, claims, suits, and damages, including attorneys’ fees, arising out of or

pertaining to, or relating to CONSULTANT’s, its associates’, employees’,

subconsultants’, or other agents’ negligence, recklessness or willful misconduct in the

operation and/or performance under this Agreement.

Where applicable by law, the duty to indemnify, including the cost to defend is limited in

accordance with California Civil Code § 2782.8.

(OR if contract is NOT with a design professional (engineers, architects, landscape

architects, land surveyors or their firms) USE THIS PARAGRAPH 7.1 INSTEAD:

7.1 Indemnification

CONSULTANT expressly agrees to defend, indemnify, and hold harmless DISTRICT

and its Directors, officers, agents and employees from and against any and all loss,

liability, expense, claims, suits, and damages, including attorneys’ fees, arising out of or

resulting from CONSULTANT's, its associates’, employees’, subconsultants’, or other

agents’ negligent acts, errors or omissions, or willful misconduct, in the operation and/or

performance under this Agreement.

7.2 (For construction management support Agreements only)

CONSULTANT shall perform part of the work at sites where the DISTRICT's facilities

are to be constructed, and which may contain unknown working conditions and

contaminated materials. CONSULTANT shall be solely responsible for the health and

safety of CONSULTANT's employees. CONSULTANT shall designate in writing to

DISTRICT the field employee who is responsible for the health and safety of its

employees. The responsible employee shall have experience and knowledge of all

Federal, State and local health and safety regulation requirements. All CONSULTANT

personnel on construction sites shall have received all OSHA required health and safety

training.

7.3 (For construction management support Agreements only)

In the event that any hazardous materials are encountered during the services provided by

CONSULTANT or the work undertaken by construction contractors, DISTRICT shall

sign any and all manifests relating to the generation, treatment, disposal or storage of all

wastes associated with the work. Additionally, nothing contained in this Agreement shall

be construed or interpreted as requiring CONSULTANT to assume the status of a

generator, storer, treater, transporter, or disposal facility as those terms appear within the

Resource Conservation and Recovery Act, 42 USCA, Section 6901, et seq. (RCRA), or

within any state statute of similar effect governing the generation, storage, treatment,

transportation, or disposal of wastes.

7.4 (For construction management support Agreements only - include only if design

consultant and CM consultant are not the same)

It is agreed and understood by CONSULTANT and DISTRICT that the design services

have been completed by (design consultant's name) and therefore, CONSULTANT did

not undertake any design activity or have design responsibility of the facilities to be

constructed prior to execution of this Agreement.

7.5 Insurance Requirements

Insurance Requirements are as stated in Exhibit D, Insurance Requirements.

ARTICLE 8 - NOTICES

Any notice which DISTRICT may desire or is required at any time to give or serve

CONSULTANT may be delivered personally, or be sent by United States mail, postage prepaid,

addressed to:

(consulting firm's name)

(address)

Attention: (contact, usually the consultant's project manager),

or at such other address as shall have been last furnished in writing by CONSULTANT to

DISTRICT.

Any notice which CONSULTANT may desire or is required at any time to give or serve upon

DISTRICT may be delivered personally at EBMUD, 375 - 11th Street, Oakland, CA 94607-

4240, or be sent by United States mail, postage prepaid, addressed to:

Director of (Wastewater Department or Engineering and Construction Department)

P.O. Box 24055

Oakland, CA 94623-1055

or at such other address as shall have been last furnished in writing by DISTRICT to

CONSULTANT.

Such personal delivery or mailing in such manner shall constitute a good, sufficient and lawful

notice and service thereof in all such cases.

ARTICLE 9 - MISCELLANEOUS

9.1 This Agreement represents the entire understanding of DISTRICT and CONSULTANT

as to those matters contained herein. No prior oral or written understanding shall be of

any force or effect with respect to those matters covered hereunder. This Agreement may

only be modified by amendment in writing signed by each party.

9.2 This Agreement is to be binding on the successors and assigns of the parties hereto. The

services called for herein are deemed unique and CONSULTANT shall not assign,

transfer or otherwise substitute its interest in this Agreement or any of its obligations

hereunder without the prior written consent of DISTRICT.

9.3 Should any part of this Agreement be declared by a final decision by a court or tribunal

of competent jurisdiction to be unconstitutional, invalid or beyond the authority of either

party to enter into or carry out, such decision shall not affect the validity of the remainder

of this Agreement, which shall continue in full force and effect, provided that the

remainder of this Agreement can be interpreted to give effect to the intentions of the

parties.

9.4 Multiple copies of this Agreement may be executed by the parties and the parties agree

that the Agreement on file at the DISTRICT is the version of the Agreement that shall

take precedence should any differences exist among counterparts of the Agreement.

9.5 This Agreement and all matters relating to it shall be governed by the laws of the State of

California.

9.6 The District’s waiver of the performance of any covenant, condition, obligation,

representation, warranty or promise in this agreement shall not invalidate this Agreement

or be deemed a waiver of any other covenant, condition, obligation, representation,

warranty or promise. The District’s waiver of the time for performing any act or

condition hereunder does not constitute a waiver of the act or condition itself.

9.7 There shall be no discrimination in the performance of this contract, against any person,

or group of persons, on account of race, color, religion, creed, national origin, ancestry,

gender including gender identity or expression, age, marital or domestic partnership

status, mental disability, physical disability (including HIV and AIDS), medical condition

(including genetic characteristics or cancer), veteran or military status, family or medical

leave status, genetic information, or sexual orientation. CONSULTANT shall not

establish or permit any such practice(s) of discrimination with reference to the contract or

any part. CONSULTANTS determined to be in violation of this section shall be deemed

to be in material breach of this Agreement.

Consultant shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and

60-741.5(a). These regulations prohibit discrimination against qualified individuals

based on their status as protected veterans or individuals with disabilities, and

prohibit discrimination against all individuals based on their race, color, religion,

sex, sexual orientation, gender identity, or national origin in the performance of this

contract. Moreover, these regulations require that covered prime contractors and

subcontractors take affirmative action to employ and advance in employment

individuals without regard to race, color, religion, sex, national origin, protected

veteran status or disability.

CONSULTANT shall include the nondiscrimination provisions above in all subcontracts.

9.8 CONSULTANT affirms that it does not have any financial interest or conflict of interest

that would prevent CONSULTANT from providing unbiased, impartial service to the

DISTRICT under this Agreement.

(If this Agreement is to be executed using digital signatures via DocuSign instead of wet

signatures, use the following paragraph. Otherwise, delete it.)

9.9 Digital Signatures. The Parties agree that this Agreement may be executed using digital

signatures.

(If this Agreement is to be executed by having each party wet sign a separate signature page

and submitting all signed pages in original format or via scanning for compilation with the

final Agreement, use the following paragraph. Otherwise, delete it.)

9.10 Execution in Counterparts. This Agreement may be executed in counterparts, each of

which shall be deemed to be an original but all of which taken together shall constitute

one and the same Agreement.

ARTICLE 10 - TERM

Unless terminated pursuant to Article 4 herein, this Agreement shall expire when all tasks have

been completed and final payment has been made by DISTRICT.

(NOTE: do not have a page break leaving signatures by themselves—must have at least the

“in witness whereof” paragraph on signature page)

IN WITNESS WHEREOF, the parties hereto each herewith subscribe the same in duplicate.

EAST BAY MUNICIPAL UTILITY DISTRICT

By: Date

(Name),

(Insert title - Director of Engineering and Construction or Manager of Support Services)

Approved As To Form

By:

for the Office of the General Counsel

(CONSULTING FIRM'S NAME, ALL CAPS & BOLD)

By: Date

(Name),

(Title)

Rev. 6/2/2021

EXHIBIT A

East Bay Municipal Utility District

(Project Title)

SCOPE OF SERVICES

I. CONSULTANT SERVICES

CONSULTANT shall provide the following:

Contracted Services

(State each task with associated task number; specifically call out any survey work)

Optional Services

(State each task with associated task number)

II. PROJECT SCHEDULE

(List schedule milestones and completion dates)

EXHIBIT B

East Bay Municipal Utility District

(Project Title)

COMPENSATION

Compensation for services provided in Exhibit A, SCOPE OF SERVICES, shall be in

accordance with the methods and specific amounts described in this Exhibit.

1. DISTRICT shall pay CONSULTANT only the actual costs incurred, subject to the

Maximum Cost Ceiling. CONSULTANT certifies that the cost and pricing information

used herein are complete, current and accurate. CONSULTANT acknowledges that it will

expend public funds and hereby agrees to use every appropriate method to contain its fees

and minimize costs under this Agreement.

2. Compensation for CONSULTANT services authorized shall be on a cost reimbursement

basis and include Direct Labor, Indirect Costs, Subconsultant Services and Other Direct

Costs. Costs to be paid comprise the following:

2.1 Direct Labor

Direct labor costs shall be the total number of hours worked on the job by each

employee times the hourly rate for the employee's labor. Hours worked shall be

rounded-up to the nearest quarter-hour (0.25) increment. Labor rates shall be

based on a normal 8-hour day, 40-hour week.

2.2 Indirect Costs

DISTRICT shall pay CONSULTANT an overhead expense equal to (insert

overhead rate) percent of labor costs incurred by CONSULTANT.

CONSULTANT acknowledges and agrees that this overhead compensation is in

lieu of itemized payments for indirect and overhead expenses which includes, but

is not limited to:

• Clerical, word processing and/or accounting work.

• Vehicle usage and mileage between CONSULTANT’s office and

DISTRICT offices or work locations within DISTRICT service area. For

work outside of the DISTRICT’s services area, DISTRICT approval to

charge for vehicle usage and mileage and other travel expenses must be

obtained prior to the expenses being incurred.

• Parking (DISTRICT does NOT provide parking to CONSULTANT in the

DISTRICT Administration Building, located at 375 11th Street, Oakland,

California. CONSULTANT shall be responsible for parking elsewhere).

• Postage, or for certified or registered mail. Extraordinary postage,

overnight delivery, or messenger delivery charges must be approved in

advance.

• Routine copying costs for in-house copying.

• Local telephone charges, including cellular phone, modem and

telecopier/FAX charges.

• Office space lease.

• Office supplies.

• Computer equipment.

• Computer usage charges.

• Books, publications and periodicals.

• Insurance.

• Miscellaneous hand tools or equipment rental.

• Safety training, seminars or continuing education.

• Utilities.

• Local meals, transportation or other travel charges.

• Inadequately described or miscellaneous expenses.

The above items are illustrative, rather than exhaustive.

2.3 Subconsultant Services

Subconsultant services shall be billed at cost (plus a (insert rate) percent markup).

2.4. Other Direct Costs

Other Direct Costs shall be approved by DISTRICT in advance in writing, and

shall be billed at cost, without markup. These costs include, but are not limited to

the following:

2.4.1. Automobile expenses at (insert rate) cents per mile when CONSULTANT

is required to travel outside of the DISTRICT’s service area. Mileage will

NOT be reimbursed for rental car expenses, where the rental agreement

specifies unlimited mileage.

2.4.2. DISTRICT will pay for necessary and reasonable travel expenses provided

the travel is approved in advance by DISTRICT Project Manager, and

providing that:

• Each expense is separately identified (air fare, hotel, rental car)

with an amount and date incurred. Confirming documents may be

requested.

• Charged mileage for vehicle mileage shall not exceed the current

allowable Internal Revenue Service rate.

• Air travel is coach or economy rate for refundable tickets.

Business and first class rates will not be reimbursed.

• Lodging accommodations are moderately priced.

• Meal charges are reasonable. (Reimbursement for meals will only

be made in conjunction with out-of-town travel.)

• Taxis or shuttles are used rather than rental cars whenever cost

effective.

• Rental cars are intermediate or compact class only.

2.6 Budget Amounts

Contracted Services

Optional Services

Maximum Cost Ceiling*

$(dollars)

* (Maximum Cost Ceiling is the sum of Contracted and Optional Services. If

your scope has no Optional Services, delete the Contracted and Optional

Services columns.)

The Maximum Cost Ceiling shown above is based upon the cost estimate and

labor hours attached hereto as Exhibit B-1 and Exhibit B-2. Costs described

above, comprising Direct Labor, Indirect Costs, Subconsultant Services and Other

Direct Costs shall be payable up to the Maximum Cost Ceiling as specified

herein.

2.7 Billing and Payment

CONSULTANT shall invoice DISTRICT monthly for the actual costs incurred

for work performed during the previous month. Actual costs shall include Direct

Labor, Indirect Costs, Subconsultant Services, and Other Direct Costs as specified

herein. Actual costs shall be invoiced by task as described in Exhibit A. Invoices

shall set forth a description of the actual costs incurred and the services

performed, the date the services were performed and the amount of time spent

rounded to the nearest quarterly hour increment (.25) on each date services were

performed and by whom. Supporting documentation for the invoice shall be

organized to clearly identify the task charged and shall be supported by such

copies of invoices, payroll records, and other documents as may be required by

DISTRICT to authenticate invoiced costs. Copies of all invoices from any

subconsultant(s) and outside service(s) shall be attached. (Insert the following

sentence if paragraph 2.9 below applies and is included in agreement. “Where

CONSULTANT is required by law to pay prevailing wage rates, supporting

documentation for such work shall be in accordance with guidelines set forth

below and shall include certified payroll reports. “) DISTRICT shall pay

CONSULTANT within thirty (30) days, upon receipt of a proper CONSULTANT

invoice, (Optional insert - include the following words here only if retention will

be accumulated: "the amount invoiced less a ten percent (10%) retention

amount,"), provided that all invoices are accompanied by sufficient cost

documentation, and DISTRICT Form P-47 (Subcontractor Payment Report - CEP

Participation), to allow the determination of the reasonableness and accuracy of

said invoice. (Optional insert - include the following sentence here only if

retention will be accumulated: "The retention accumulated to date shall be paid

by DISTRICT upon DISTRICT's acceptance of the final version of all

documents specified in ARTICLE 1 - SCOPE OF WORK, paragraph 1.6.")

The Maximum Cost Ceiling is in effect for the entire Scope of Services. If the

authorized Maximum Cost Ceiling is reached, CONSULTANT shall complete the

agreed-upon work for the authorized Maximum Cost Ceiling. Labor hours may be

reallocated within the tasks without renegotiation of the Agreement with written

approval from the DISTRICT Project Manager in such a manner so as not to

exceed the Maximum Cost Ceiling. In no event shall the Maximum Cost Ceiling

be increased unless there is a written amendment of this Agreement.

2.8 Budget Status Reports

For the duration of this Agreement, the CONSULTANT shall provide DISTRICT

with ("bi-weekly" or "monthly" depending on duration of project) budget status

reports that include, in tabular or graphical format, for each report period: (1) the

original cumulative projected cash flows for the duration of the project (prepared

at the start of the project), (2) the actual cash flows for the work completed to

date, (3) the current projected cash flows to complete the project, and (4) the

earned value (the amount of work actually completed to date compared to the

budget expended). Current projected cash flows shall be based on all

CONSULTANT and subconsultant time sheets up to a date within 3 weeks of the

date of the budget status report.

2.9 Prevailing Wages and Other Requirements for Construction Inspection, and

Construction Related Work During Design and Preconstruction Phases of

Construction. (Optional Insert – include this paragraph 2.9 and all its

subparagraphs if your Scope of Services includes construction, alteration,

demolition, installation, maintenance, repair work, or other construction

related work during the design or preconstruction phases of construction

including but not limited to inspection and land surveying.)

2.9.1 All Contractors and Subcontractors of any tier bidding on, or offering to

performing work on a public works project shall first be registered with

the State Department of Industrial Relations (DIR) pursuant to Section

1725.5 of the Labor Code. No bid will be accepted nor any contract

entered into without proof of the Contractor and Subcontractors’ current

registration with the DIR (LC § 1771.1).

2.9.2 All public works projects awarded after January 1, 2015, are subject to

compliance monitoring and enforcement by the DIR (LC § 1771.4) and all

Contractors are required post job site notices, “as prescribed by

regulation” (LC § 1771.4).

2.9.3 Pursuant to Section 1773 of the Labor Code, the District has obtained

from the Director of Industrial Relations of the State of California, the

general prevailing rates of per diem wages and the general prevailing rates

for holiday and overtime work in the locality in which the Work is to be

performed, for each craft, classification, or type of worker needed to

execute the contract. A copy of the prevailing wage rates is on file with

the District and available for inspection by any interested party at

www.dir.ca.gov.

2.9.4 The Contractor shall post a copy of the general prevailing rate of per diem

wages at the jobsite pursuant to Section 1773.2 of the Labor Code.

2.9.5 Pursuant to Section 1774 of the Labor Code, the Contractor and any of its

Subcontractors shall not pay less than the specified prevailing rate of

wages to all workers employed in the execution of the contract.

2.9.6 The Contractor shall, as a penalty to the State or the District, forfeit not

more than the maximum set forth in Section 1775 of the Labor Code for

each calendar day, or portion thereof, for each worker paid less than the

prevailing rates for the work or craft in which the worker is employed

under the contract by the Contractor or by any Subcontractor under him.

The difference between the prevailing wage rates and the amount paid to

each worker for each calendar day or portion thereof for which such

worker was paid less than the stipulated prevailing wage rate shall be paid

to such worker by the Contractor.

2.9.7 General prevailing wage determinations have expiration dates with either

a single asterisk or a double asterisk. Pursuant to California Code of

Regulations, Title 8, Section 16204, the single asterisk means that the

general prevailing wage determination shall be in effect for the specified

contract duration. The double asterisk means that the predetermined wage

modification shall be paid after the expiration date. No adjustment in the

Contract Sum will be made for the Contractor’s payment of these

predetermined wage modifications.

2.9.8 The Contractor and each Subcontractor shall keep an accurate payroll

record, showing the name, address, social security number, work

classification, 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 connection with the Work. The

payroll records shall be certified and shall be available for inspection in

accordance with the provisions of Section 1776 of the Labor Code.

Certified payroll records shall be on the forms provided by the DIR or

contain the same information required on the Department’s form

2.9.9 For public works projects awarded on or after April 1, 2015, or that are

still ongoing after April 1, 2016, no matter when awarded, each Contractor

and Subcontractor shall furnish the certified payroll related records as

more specifically described above and in Labor Code section 1776 directly

to the Labor Commissioner (see LC § 1771.4). These records shall be

provided to the Labor Commissioner at least monthly or more frequently

if required by the terms of the Contract. For exception on projects covered

by collective bargaining agreements like a PLA, please see Labor Code

section 1771.4.

2.9.10 In the event of noncompliance with the requirements of Section 1776 of

the Labor Code, the Contractor shall have 10 days in which to comply

subsequent to receipt of written notice specifying in what respects such

Contractor must comply with said Section. Should noncompliance still be

evident after such 10-day period, the Contractor shall, as a penalty to the

State or the District, forfeit the amount set forth in Section 1776 of the

Labor Code for each calendar day, or portion thereof, for each worker,

until strict compliance is effectuated. Upon the request of the Division of

Apprenticeship Standards or the Division of Labor Standards

Enforcement, such penalties shall be withheld from progress payments

then due.

2.9.11 Pursuant to the provisions of Sections 1810, et seq. of the Labor Code the

time of service of any worker employed upon the work shall be limited

and restricted to eight hours during any one calendar day, and forty hours

during any one calendar week, unless work performed by employees of

the Contractor in excess of eight hours per day, and forty hours during any

one calendar week, shall be permitted upon compensation for all hours

worked in excess of eight hours per day at not less than one and one half

times the basic rate of pay.

2.9.12 The Contractor shall, as a penalty to the State or the District, forfeit the

amount set forth in Section 1813 of the Labor Code for each worker

employed by the Contractor or by any Subcontractor for each calendar day

during which such worker is required or permitted to work more than eight

hours in any calendar day and forty hours in any one calendar week in

violation of the provisions of Labor Code, Sections 1810, et seq.

2.9.13 The Contractor and every Subcontractor shall keep an accurate record

showing the name of and the actual hours worked each calendar day and

each calendar week by each worker employed by him in connection with

the Work; the record shall be kept open at all reasonable hours to the

inspection of the District and to the Division of Labor Standards

Enforcement of the State of California.

2.9.14 In the performance of a public works contract, the Contractor and any

Subcontractor shall comply with the provisions concerning the

employment of apprentices in Section 1777.5 of the Labor Code and any

amendments thereof. In the event the Contractor or any Subcontractor

willfully fails to comply with this requirement the Contractor or

Subcontractor shall be subject to the penalties for noncompliance in Labor

Code section 1777.7.

2.9.15 The Contractor and every Subcontractor shall post at the workplace and

comply with all required wage related workplace postings. Copies of the

required postings may be downloaded or ordered electronically from the

Department of Industrial Relations website at

http://www.dir.ca.gov/wpnodb.html.

(Note: this table is prepared by the consultant. The following is provided to show format.)

EXHIBIT B-1

East Bay Municipal Utility District

(Project Title)

COST DISTRIBUTION

Consultant

Subconsultants**

Direct Labor

Subconsultant # 1

Subconsultant # 2

Project

Manager

Project

Engineer

Drafting

Project

Engineer

Assist.

Engineer

Project

Engineer

Assist.

Engineer

Hourly Rate ($/hr.)

(***)

Total

Indirect

Costs

ODCs*

(***)

Total

Cost

(***)

Total

Cost

Total

I. Contracted Services

Task 1.1:

Task 1.2:

Task 2.1:

Task 2.2:

Subtotal I.

II. Optional Services

Task 3:

Task 4:

Subtotal II.

TOTAL of

Subtotals I. & II

* ODCs = Other Direct Costs.

** Includes any prime consultant markup in subconsultant hourly rates.

*** Insert hourly rate.

(Note: this table is prepared by the consultant. The following is provided to show format.)

EXHIBIT B-2

East Bay Municipal Utility District

(Project Title)

LABOR DISTRIBUTION*

Consultant

Subconsultants***

Subconsultant # 1

Subconsultant # 2

Project

Manager

Project

Engineer

Drafting

Subtotal

Project

Engineer

Assist.

Engineer

Subtotal

Project

Engineer

Assist.

Engineer

Subtotal

Total

I. Contracted Services

Task 1.1:

Task 1.2:

Task 2.1:

Task 2.2:

Subtotal I.

II. Optional Services

Task 3:

Task 4:

Subtotal II.

TOTAL

(* Include both consultant and subconsultant hours. Also, include the percent time commitment for key personnel if a critical

issue for success of the project.)

EXHIBIT C

East Bay Municipal Utility District

(Project Title)

CEP COMPLIANCE

FIRMS UTILIZED MINIMUM MINIMUM

AMOUNT* PERCENT**

(Name of

Subconsultant's firm) $(dollars) (1 to 99)

(Name of

Subconsultant's firm) $(dollars) (1 to 99)

TOTAL $(dollars) (1 to 99)

* Does not include consultant's markup. (Include this footnote only if your contract

includes markup on subconsultants.)

** Based on a Maximum Cost Ceiling amount of $(dollars).

EXHIBIT D

INSURANCE REQUIREMENTS

(THIS SECTION IS SAMPLE ONLY, SEE RFP EXHIBIT B FOR LIMITS)

I. Provisions Applicable to All Required Insurance

A. Prior to the beginning of and throughout the duration of Services, and for any additional

period of time as specified below, CONSULTANT shall, at its sole cost and expense, maintain

insurance in conformance with the requirements set forth below.

B. CONSULTANT shall provide Verification of Insurance as required by this Agreement by

providing the completed Verification of Insurance as requested below signing and submitting

this Exhibit D to the DISTRICT. The Exhibit D may be signed by an officer of the

CONSULTANT (Agent) or by the Insurance Broker for the CONSULTANT. CONSULTANT

shall update Exhibit D throughout the specified term of the insurance required by this Agreement

by resubmitting the completed Exhibit D prior to the expiration date of any of the required

insurance. The updated Exhibit D shall become a part of the Agreement but shall not require a

change order to the Agreement. The Notice to Proceed shall not be issued, and CONSULTANT

shall not commence Services until such insurance has been accepted by the DISTRICT.

C. CONSULTANT shall carry and maintain the minimum insurance requirements as defined in

this Agreement. CONSULTANT shall require any subcontractor to carry and maintain the

minimum insurance required in this Agreement to the extent they apply to the scope of the

services to be performed by subcontractor.

D. Acceptance of verification of Insurance by the DISTRICT shall not relieve CONSULTANT

of any of the insurance requirements, nor decrease liability of CONSULTANT.

E. The insurance required hereunder may be obtained by a combination of primary, excess

and/or umbrella insurance, and all coverage shall be at least as broad as the requirements listed in

this Agreement.

F. Any deductibles, self-insurance, or self-insured retentions (SIRs) applicable to the required

insurance coverage must be declared to and accepted by the DISTRICT.

G. At the option and request of the DISTRICT, CONSULTANT shall provide documentation of

its financial ability to pay the deductible, self-insurance, or SIR.

H. Any policies with a SIR shall provide that any SIR may be satisfied, in whole or in part, by

the DISTRICT or the additional insured at its sole and absolute discretion.

I. Unless otherwise accepted by the DISTRICT, all required insurance must be placed with

insurers with a current A.M. Best’s rating of no less than A- V.

J. CONSULTANT shall defend the DISTRICT and pay any damages as a result of failure to

provide the waiver of subrogation from the insurance carrier.

K. For any coverage that is provided on a claims-made coverage form (which type of form is

permitted only where specified) the retroactive date must be shown and must be before the date

of this Agreement, and before the beginning of any Services related to this Agreement.

L. Insurance must be maintained and updated Verification of Insurance be provided to the

DISTRICT before the expiration of insurance by having CONSULTANT’s insurance broker or

agent update, sign and return Exhibit D to the DISTRICT’s contract manager. For all claims-

made policies the updated Verification of Insurance must be provided to the DISTRICT for at

least three (3) years after expiration of this Agreement.

M. If claims-made coverage is canceled or non-renewed, and not replaced with another claims-

made policy form with a retroactive date prior to the effective date of this Agreement or the start

of any Services related to this Agreement, CONSULTANT must purchase an extended reporting

period for a minimum of three (3) years after expiration of the Agreement.

N. If requested by the DISTRICT, a copy of the policies’ claims reporting requirement must be

submitted to the DISTRICT for review.

O. Where additional insured coverage is required, the additional insured coverage shall be

“primary and non-contributory,” and will not seek contribution from the DISTRICT’s insurance

or self-insurance.

P. CONSULTANT agrees to provide immediate Notice to the DISTRICT of any loss or claim

against CONSULTANT arising out of, pertaining to, or in any way relating to this Agreement, or

Services performed under this Agreement. The DISTRICT assumes no obligation or liability by

such Notice, but has the right (but not the duty) to monitor the handling of any such claim or

claims if they are likely to involve the DISTRICT.

Q. CONSULTANT agrees, upon request by the DISTRICT, to provide complete, certified

copies of any policies and endorsements within 10 days of such request (copies of policies may

be redacted to eliminate premium details.)

R. It is CONSULTANT’s responsibility to ensure its compliance with the insurance

requirements. Any actual or alleged failure on the part of the DISTRICT to obtain proof of

insurance required under this Agreement shall not in any way be construed to be a waiver of any

right or remedy of the DISTRICT, in this or any regard.

S. Notice of Cancellation/Non-Renewal/Material Reduction The insurance requirements

hereunder are mandatory and the DISTRICT may, at its sole and absolute discretion, terminate

the services provided by CONSULTANT, should CONSULTANT breach its obligations to

maintain the required coverage and limits set forth in this Agreement. No coverage required

hereunder shall be cancelled, non-renewed or materially reduced in coverage or limits without

the DISTRICT being provided at least thirty (30) days prior written notice, other than

cancellation for the non-payment of premiums, in which event the DISTRICT shall be provided

ten (10) days prior written notice. Replacement of coverage with another policy or insurer,

without any lapse in coverage or any reduction of the stated requirements does not require notice

beyond submission to the DISTRICT of an updated Verification of Insurance which shall be met

by having the CONSULTANT’s insurance broker or agent update, sign and return this Exhibit D

II. Workers’ Compensation and Employer’s Liability Insurance Coverage

A. Workers’ Compensation insurance including Employer’s Liability insurance with minimum

limits as follows:

Coverage A. Statutory Benefits Limits

Coverage B. Employer’s Liability of not less than:

Bodily Injury by accident: $1,000,000 each accident

Bodily Injury by disease: $1,000,000 each employee

Bodily Injury by disease: $1,000,000 policy limit

B. CONSULTANT’s insurance shall be primary and any insurance or self-insurance procured or

maintained by the DISTRICT shall not be required to contribute to it.

C. If there is an onsite exposure of injury to CONSULTANT, subcontractor, and/or

subcontractor’s employees under the U.S. Longshore and Harbor Workers' Compensation Act, the

Jones Act, or under laws, regulations or statutes applicable to maritime employees, coverage is

required for such injuries or claims.

D. If CONSULTANT is self-employed, a sole proprietorship or a partnership, with no

employees, and is exempt from carrying Workers’ Compensation Insurance, CONSULTANT

must return the completed Verification of Insurance confirming that CONSULTANT has no

employees and is exempt from the State of California Workers’ Compensation requirements.

E. If CONSULTANT is self-insured with respect to Workers’ Compensation coverage,

CONSULTANT shall provide to the DISTRICT a Certificate of Consent to Self-Insure from the

California Department of Industrial Relations. Such self-insurance shall meet the minimum limit

requirements and shall waive subrogation rights in favor of the DISTRICT as stated below in

section “F.”

F. Waiver of Subrogation. Workers’ Compensation policies, including any applicable excess and

umbrella insurance, must contain a waiver of subrogation endorsement providing that

CONSULTANT and each insurer waive any and all rights of recovery by subrogation, or

otherwise, against the DISTRICT, its directors, board, and committee members, officers, officials,

employees, agents, and volunteers. CONSULTANT shall defend and pay any and all damages,

fees, and costs, of any kind arising out of, pertaining to, or in any way relating to

CONSULTANT’s failure to provide waiver of subrogation from the insurance carrier.

Verification of Workers’ Compensation and Employer’s Liability Insurance Coverage

By checking the box and signing below, I hereby verify that the CONSULTANT is

exempt from the State of California’s requirement to carry workers’ compensation

insurance.

As the CONSULTANT’s insurance broker/agent, I hereby verify that I have reviewed and

confirmed that the CONSULTANT carries workers’ compensation insurance as required

by this Agreement, including the relevant provisions applicable to all required insurance.

Self-Insured Retention:Amount: $

Policy Limit: $

Policy Number:

Policy Period: from: to:

Insurance Carrier Name:________________________________________________________

Insurance Broker or Agent: Print Name:___________________________________________

Insurance Broker or Agent’s Signature: ____________________________________________

III. Commercial General Liability Insurance (“CGL”) Coverage

A. CONSULTANT’s insurance shall be primary and any insurance or self-insurance procured or

maintained by the DISTRICT shall not be required to contribute to it.

B. The insurance requirements under this Agreement shall be the greater of (1) the minimum

coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits

of coverage of any insurance policies or proceeds available to the Named Insured. It is agreed that

these insurance requirements shall not in any way act to reduce coverage that is broader or that

includes higher limits than the minimums required herein. No representation is made that the

minimum insurance requirements of this Agreement are sufficient to cover the obligations of the

CONSULTANT.

C. Minimum Requirements. CGL insurance with minimum per occurrence and aggregate limits

as follows:

Bodily Injury and Property Damage $2,000,000 per occurrence & aggregate

Personal Injury/Advertising Injury $2,000,000 per occurrence & aggregate

Products/Completed Operations $2,000,000 per occurrence & aggregate

D. Coverage must be on an occurrence basis.

E. Coverage for Products, and Completed Operations, and Ongoing Operations must be included

in the insurance policies and shall not contain any “prior work” coverage limitation or exclusion

applicable to any Services performed by CONSULTANT and/or subcontractor under this

Agreement.

F. Insurance policies and Additional Insured Endorsement(s) Coverage shall be included for all

premises and operations in any way related to this Agreement.

G. There will be no exclusion for explosions, collapse, or underground liability (XCU).

H. Insurance policies and Additional Insured Endorsement(s) shall not exclude liability and

damages to work arising out of, pertaining to, or in any way relating to services performed by

Subcontractor on CONSULTANT’s behalf.

I. Contractual liability coverage shall be included and shall not limit, by any modification or

endorsement, coverage for liabilities assumed by CONSULTANT under this Agreement as an

“insured contract.”

J. Waiver of Subrogation. The policy shall be endorsed to include a Waiver of Subrogation

ensuring that the CONSULTANT and its insurer(s) waive any rights of recovery by subrogation,

or otherwise, against the DISTRICT, its directors, board, and committee members, officers,

officials, agents, volunteers, and employees. CONSULTANT shall defend and pay any and all

damages, fees, and costs, of any kind, arising out of, pertaining to, or in any way resulting from

CONSULTANT’s failure to provide the waiver of subrogation from its insurance carrier(s).

K. “Independent CONSULTANT’s Liability” shall not limit coverage for liability and/or

damages arising out of, pertaining to, or in any way resulting from Services provided under this

Agreement.

To the fullest extent permitted by law, the DISTRICT, its directors, board, and committee

members, officers, officials, employees, agents, and volunteers must be covered as Additional

Insureds on a primary and noncontributory basis on all underlying, excess and umbrella policies

that shall be evidenced in each case by an endorsement. The Additional Insureds must be covered

for liability arising in whole, or in part, from any premises, Products, Ongoing Operations, and

Completed Operations by or on behalf of CONSULTANT, in any way related to Services

performed under this Agreement.

L. A severability of interest provision must apply for all the Additional Insureds, ensuring that

CONSULTANT’s insurance shall apply separately to each insured against whom a claim is made

or suit is brought, except with respect to the policies’ limit(s).

Verification of Commercial General Liability (CGL) Insurance Coverage

As the CONSULTANT’S insurance broker/agent, I hereby verify that I have reviewed and

confirmed that the CONSULTANT carries Commercial General Liability insurance, as

required by this Agreement, including the relevant provisions applicable to all required

insurance:

Self-Insured: Amount: $

Policy Limit: Per Occurrence: $ Aggregate: $

Policy Number:

Policy Period: from: to:

Insurance Carrier Name:________________________________________________________

Insurance Broker or Agent: Print Name:___________________________________________

Insurance Broker or Agent’s Signature: ____________________________________________

IV. Business Auto Liability Insurance Coverage

CONSULTANT’s insurance shall be primary and any insurance or self-insurance procured or

maintained by the DISTRICT shall not be required to contribute to it.

A. The insurance requirements under this Agreement shall be the greater of (1) the minimum

coverage and limits specified in this Agreement; or (2) the broader coverage and maximum

limits of coverage of any insurance policies or proceeds available to the Named Insured. It is

agreed that these insurance requirements shall not in any way act to reduce coverage that is

broader or that includes higher limits than the minimums required herein. No representation is

made that the minimum insurance requirements of this Agreement are sufficient to cover the

obligations of the CONSULTANT.

B. Minimum Requirements. Auto insurance with minimum coverage and limits as follows:

Each Occurrence Limit (per accident) and in the Aggregate: $2,000,000

Bodily Injury and Property Damage: $2,000,000

C. Coverage must include either “owned, non-owned, and hired” autos or “any” automobile

This provision ensures the policy covers losses arising out of use of company-owned vehicles

(“owned autos”), employee’s personal autos (“non-owned autos” meaning not owned by

company/insured) or autos that are rented or leased (“hired autos”).

D. If CONSULTANT is transporting hazardous materials or contaminants, evidence of the

Motor Carrier Act Endorsement-hazardous materials clean-up (MCS-90, or its equivalent) must

be provided.

E. If CONSULTANT’s Scope of Services under this Agreement exposes a potential pollution

liability risk related to transport of potential pollutants, seepage, release, escape or discharge of

any nature (threatened or actual) of pollutants into the environment arising out of, pertaining to,

or in any way related to CONSULTANT’s and/or Subcontractor’s performance under this

Agreement, then Auto Liability Insurance policies must be endorsed to include Transportation

Pollution Liability insurance. Alternatively, coverage may be provided under the

CONSULTANT’s Pollution Liability Policies if such policy has no exclusions that would restrict

coverage under this Agreement. Coverage shall also include leakage of fuel or other “pollutants”

needed for the normal functioning of covered autos.

F. To the fullest extent permitted by law, the DISTRICT, its directors, board, and committee

members, officers, officials, employees, agents, and volunteers must be covered as Additional

Insureds on a primary and noncontributory basis on all underlying and excess and umbrella

policies. The Additional Insureds must be covered for liability arising in whole, or in part, from

any premises, Products, Ongoing Operations, and Completed Operations by or on behalf of

CONSULTANT, in any way related to Services performed under this Agreement.

G. A severability of interest provision must apply for all the Additional Insureds, ensuring that

CONSULTANT’s insurance shall apply separately to each insured against whom a claim is made

or suit is brought, except with respect to the insurer’s limits of liability.

Verification of Business Auto Liability Insurance Coverage

As the CONSULTANT’S insurance broker/agent, I hereby verify that I have reviewed and

confirmed that the CONSULTANT carries Business Automobile Liability insurance, as

required by this Agreement, including the relevant provisions applicable to all required

insurance:

Self-Insured: Amount: $

Policy Limit: Per Accident/Occurrence $ Aggregate: $

Policy Number:

Policy Period: from: to:

Insurance Carrier Name:________________________________________________________

Insurance Broker or Agent: Print Name:___________________________________________

Insurance Broker or Agent’s Signature: ____________________________________________

V. Professional Liability (also known as Errors and Omissions) Insurance Coverage