2018-19 NIA Consulting - CIP Project Mgmt & Engineering Servicesta Qaigrev
GEM of tlyr DESERT —
MEMORANDUM
TO: Frank J. Spevacek, City Manager
FROM: Carley Escarrega, Management Assistant
DATE: June 6, 2018
RE: Agreement for Contract Services between the City of La Quinta and NAI
Consulting, Inc. for Project Management and Contract Administrative
Support Services
Attached for your signature is an Agreement for Contract Services between NAI Consulting
and the City of La Quinta for the services referenced above.
Please sign the attached agreement(s) and return to the City Clerk for processing and
distribution.
Reauestina department shall check and attach the items below as aomonriate:
X Contract payments will be charged to account number: Various CIP Accounts
X Amount of Agreement, Amendment, Change Order, etc.: $487,455
X A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with
no reportable interests in LQ or reportable interests
N/A A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant
does not meet the definition in FPPC regulation 18701(2).
Authoritv to execute this aareement is based upon:
X Approved by the City Council on Mav 15. 2018
N/A City Manager's signature authority provided under Resolution No. 2015-045 for budgeted expenditures
of $50,000 or less. This expenditure is $ and authorized by contract approved by
N/A Initial to certify that 3 written informal bids or proposals were received and considered in selection
The following required documents are attached to the aareement:
X Insurance certificates as required by the agreement (approved by Risk Manager on date)
N/A Performance bonds as required by the agreement (originals)
X City of La Quinta Business License number LIC-0005699 EXP 4/30/2019
X A requisition for a Purchase Order has been prepared (amounts over $5,000)
X A copy of this Cover Memo has been emailed to Finance (Sandra)
Revised May 2017
AGREEMENT FOR CONTRACT SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made
and entered into by and between the CITY OF LA QUINTA, ("City"), a California
municipal corporation, and NAI CONSULTING, INC. ("Consultant"). The parties
hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Consultant shall provide those services related to Project Management
and Contract Administrative Support- Services, as specified in the "Scope of
Services" attached hereto as Exhibit "A" and incorporated herein by this reference
(the "Services"). Consultant represents and warrants that Consultant is a provider
of first-class services and Consultant is experienced in performing the Services
contemplated herein and, in light of such status and experience, Consultant
covenants that it shall follow the highest professional standards in performing the
Services required hereunder. For purposes of this Agreement, the phrase "highest
professional standards" shall mean those standards of practice recognized by one
or more first-class firms performing similar services under similar circumstances.
1.2 Compliance with Law. All services rendered hereunder shall be provided
in accordance with all ordinances, resolutions, statutes, rules, regulations, and laws
of the City and any Federal, State, or local governmental agency of competent
jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Except as otherwise specified
herein, Consultant shall obtain at its sole cost and expense such licenses, permits,
and approvals as may be required by law for the performance of the Services
required by this Agreement, including a City of La Quinta business license.
Consultant and its employees, agents, and subcontractors shall, at their sole cost
and expense, keep in effect at all times during the term of this Agreement any
licenses, permits, and approvals that are legally required for the performance of the
Services required by this Agreement. Consultant shall have the sole obligation to
pay for any fees, assessments, and taxes, plus applicable penalties and interest,
which may be imposed by law and arise from or are necessary for the performance
of the Services required by this Agreement, and shall indemnify, defend (with
counsel selected by City), and hold City, its elected officials, officers, employees,
and agents, free and harmless against any such fees, assessments, taxes,
penalties, or interest levied, assessed, or imposed against City hereunder.
Consultant shall be responsible for all subcontractors' compliance with this Section.
1.4 Familiarity with Work. By executing this Agreement, Consultant
warrants that (a) it has thoroughly investigated and considered the Services to be
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performed, (b) it has investigated the site where the Services are to be performed,
if any, and fully acquainted itself with the conditions there existing, (c) it has
carefully considered how the Services should be performed, and (d) it fully
understands the facilities, difficulties, and restrictions attending performance of the
Services under this Agreement. Should Consultant discover any latent or unknown
conditions materially differing from those inherent in the Services or as represented
by City, Consultant shall immediately inform City of such fact and shall not proceed
except at Consultant's risk until written instructions are received from the Contract'
Officer (as defined in Section 4.2 hereof).
1.5 Standard of Care. Consultant acknowledges and understands that the
Services contracted for under this Agreement require specialized skills and abilities
and that, consistent with this understanding, Consultant's work will be held to a
heightened standard of quality. Consistent with Section 1.4 hereinabove,
Consultant represents to City that it holds the necessary skills and abilities to
satisfy the heightened standard of quality as set forth in this Agreement.
Consultant shall adopt reasonable methods during the life of this Agreement to
furnish continuous protection to the Services performed by Consultant, and the
equipment, materials, papers, and other components thereof to prevent losses or
damages, and shall be responsible for all such damages, to persons or property,
until acceptance of the Services by City, except such losses or damages as may be
caused by City's own negligence. The performance of Services by Consultant shall
not relieve Consultant from any obligation to correct any incomplete, inaccurate, or
defective work at no further cost to City, when such inaccuracies are due to the
negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this
Agreement, Consultant shall perform services in addition to those specified in the
Scope of Services ("Additional Services") only when directed to do so by the
Contract Officer, provided that Consultant shall not be required to perform any
Additional Services without compensation. Consultant shall not perform any
Additional Services until receiving prior written authorization from the Contract
Officer, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the
time to perform this Agreement, which said adjustments are subject to the written
approval of Consultant. It is expressly understood by Consultant that the
provisions of this Section shall not apply to the Services specifically set forth in the
Scope of Services or reasonably contemplated therein. It is specifically understood
and agreed that oral requests and/or approvals of Additional Services shall be
barred and are unenforceable. Failure of Consultant to secure the Contract
Officer's written authorization for Additional Services shall constitute a waiver of
any and all right to adjustment of the Contract Sum or time to perform this
Agreement, whether by way of compensation, restitution, quantum meruit, or the
like, for Additional Services provided without the appropriate authorization from the
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Contract Officer. Compensation for properly authorized Additional Services shall be
made in accordance with Section 2.3 of this Agreement.
1.7 Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof are set forth in Exhibit "D" (the
"Special Requirements"), which is incorporated herein by this reference and
expressly made a part hereof. In the event of a conflict between the provisions of
the Special Requirements and any other provisions of this Agreement, the
provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the Services rendered pursuant to this Agreement,
Consultant shall be compensated in accordance with Exhibit "B" (the "Schedule of
Compensation") in a total amount not to exceed Four Hundred Eighty -Seven
Thousand, Four Hundred Fifty -Five Dollars ($487,455.00) (the "Contract Sum"),
except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion,
payment in accordance with the percentage of completion of the Services,
payment for time and materials based upon Consultant's rate schedule, but not
exceeding the Contract Sum, or such other methods as may be specified in the
Schedule of Compensation. The Contract Sum shall include the attendance of
Consultant at all project meetings reasonably deemed necessary by City;
Consultant shall not be entitled to any additional compensation for attending said
meetings. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense,
and similar costs and expenses when and if specified in the Schedule of
Compensation. Regardless of the method of compensation set forth in the
Schedule of Compensation, Consultant's overall compensation shall not exceed the
Contract Sum, except as provided in Section 1.6 of this Agreement.
2.2 Method of Billing.. Any month in which Consultant wishes to receive
payment, Consultant shall submit to City no later than the tenth (10th) working day
of such month, in the form approved by City's Finance Director, an invoice for
Services rendered prior to the date of the invoice. Such invoice shall (1) describe in
detail the Services provided, including time and materials, and (2) specify each
staff member who has provided Services and the number of hours assigned to each
such staff member. Such invoice shall contain a certification by a principal member
of Consultant specifying that the payment requested is for Services performed in
accordance with the terms of this Agreement. Subject to retention pursuant to
Section 8.3, City will pay Consultant for all items. stated thereon which are
approved by City pursuant to this Agreement no later than thirty (30) days after
invoices are received by the City's Finance Department.
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2.3 Compensation for Additional Services. Additional Services approved in
advance by the Contract Officer pursuant to Section 1.6 of this Agreement shall be
paid for in an amount agreed to in writing by both City and Consultant in advance
of the Additional Services being rendered by Consultant. Any compensation for
Additional Services amounting to five percent (5%) or less of the Contract Sum
may be approved by the Contract Officer. Any greater amount of compensation for
Additional Services must be approved by the La Quinta City Council. Under no
circumstances shall Consultant receive compensation for any Additional Services
unless prior written approval for the Additional Services is obtained from the
Contract Officer pursuant to Section 1.6 of this Agreement.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement. If the Services not completed in accordance with the Schedule of
Performance, as set forth in Section 3.2 and Exhibit C, it is understood that the
City will suffer damage.
3.2 Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period established in
Exhibit C (the "Schedule of Performance"). Extensions to the time period specified
in the Schedule of Performance may be approved in writing by the Contract Officer.
3.3 Force Majeure. The time period specified in the Schedule of Performance
for performance of the Services rendered pursuant to this Agreement shall be
extended because of any delays due to unforeseeable causes beyond the control
and without the fault or negligence of Consultant, including, but not restricted to,
acts of God or of the public enemy, fires, earthquakes, floods, epidemic, quarantine
restrictions, riots, strikes, freight embargoes, acts of any governmental agency
other than City, and unusually severe weather, if Consultant shall within ten (10)
days of the commencement of such delay notify the Contract Officer in writing of
the causes of the delay. The Contract Officer shall ascertain the facts and the
extent of delay, and extend the time for performing the Services for the period of
the forced delay when and if in his or her judgment such delay is justified, and the
Contract Officer's determination shall be final and conclusive upon the parties to
this Agreement. Extensions to time period in the Schedule of Performance which
are determined by the Contract Officer to be justified pursuant to this Section shall
not entitle the Consultant to additional compensation in excess of the Contract
Sum.
3.4 Term. Unless earlier terminated in accordance with Sections 8.8 or 8.9
of this Agreement, the term of this Agreement shall commence on May 1,
2018and terminate on April 30, 2019("Initial Term"). This Agreement may be
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extended for two additional year(s) upon mutual agreement by both parties
("Extended Term").
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant
("Principals") are hereby designated as being the principals and representatives of
Consultant authorized to act in its behalf with respect to the Services specified
herein and make all decisions in connection therewith:
a. Lloyd "Nick" Nickerson, Jr., President
Email: nnickerson@naicansulting.com
It is expressly understood that the experience, knowledge, capability,
and reputation of the foregoing Principals were a substantial inducement for City to
enter into this Agreement. Therefore, the foregoing Principals shall be responsible
during the term of this Agreement for directing all activities of Consultant and
devoting sufficient time to personally supervise the Services hereunder. For
purposes of this Agreement, the foregoing Principals may not be changed by
Consultant and no other personnel may be assigned to perform the Services
required hereunder without the express written approval of City.
4.2 Contract Officer. The "Contract Officer" shall be Bryan McKinney, P.E.,
City Engineer or such other person as may be designated in writing by the City
Manager of City. It shall be Consultant's responsibility to assure that the Contract
Officer is kept informed of the progress of the performance of the Services, and
Consultant shall refer any decisions, that must be made by City to the Contract
Officer. Unless otherwise specified herein, any approval of City required hereunder
shall mean the approval of the Contract Officer. The Contract Officer shall have
authority to sign all documents on behalf of City required hereunder to carry out
the terms of this Agreement.
4.3 Prohibition Aqainst Subcontractinq or Assignment. The experience,
knowledge, capability, and reputation of Consultant, its principals, and its
employees were a substantial inducement for City to enter into this Agreement.
Except as set forth in this Agreement, Consultant shall not contract with any other
entity to perform in whole or in part the Services required hereunder without the
express written approval of City. In addition, neither this Agreement nor any
interest herein may be transferred, assigned, conveyed, hypothecated, or
encumbered, voluntarily or by operation of law, without the prior written approval
of City. Transfers restricted hereunder shall include the transfer to any person or
group of persons acting in concert of more than twenty five percent (25%) of the
present ownership and/or control of Consultant, taking all transfers into account on
a cumulative basis. Any attempted or purported assignment or contracting by
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Consultant without City's express written approval shall be null, void, and of no
effect. No approved transfer shall release Consultant of any liability hereunder
without the express consent of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have
any control over the manner, mode, or means by which Consultant, its agents, or
its employees, perform the Services required herein, except as otherwise set forth
herein. City shall have no voice in the selection, discharge, supervision, or control
of Consultant's employees, servants, representatives, or agents, or in fixing their
number or hours of service. Consultant shall perform all Services required herein as
an independent contractor of City and shall remain at all times as to City a wholly
independent contractor with only such obligations as are consistent with that role.
Consultant shall not at any time or in any manner represent that it or any of its
agents or employees are agents or employees of City. City shall not in any way or
for any purpose become or be deemed to be a partner of Consultant in its business
or otherwise or a joint venturer or a member of any joint enterprise with
Consultant. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City. Consultant shall not at any time or in any manner
represent that it or any of its agents or employees are agents or employees of City.
Except for the Contract Sum paid to Consultant as provided in this Agreement, City
shall not pay salaries, wages, or other compensation to Consultant for performing
the Services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing the
Services hereunder. Notwithstanding any other City, state, or federal policy, rule,
regulation, law, or ordinance to the contrary, Consultant and any of its employees,
agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of
employment by City, including but not limited to eligibility to enroll in the California
Public Employees Retirement System ("PERS") as an employee of City and
entitlement to any contribution to be paid by City for employer contributions and/or
employee contributions for PERS benefits. Consultant agrees to pay all required
taxes on amounts paid to Consultant under this Agreement, and to indemnify and
hold City harmless from any and all taxes, assessments, penalties, and interest
asserted against City by reason of the independent contractor relationship created
by this Agreement. Consultant shall fully comply with the workers' compensation
laws regarding Consultant and Consultant's employees. Consultant further agrees
to indemnify and hold City harmless from any failure of Consultant to comply with
applicable workers' compensation laws. City shall have the right to offset against
the amount of any payment due to Consultant under this Agreement any amount
due to City from Consultant as a result of Consultant's failure to promptly pay to
City any reimbursement or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Consultant represents that it
employs or will employ at its own expense all personnel required for the
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satisfactory performance of any and all of the Services set forth herein. Consultant
represents that the Services required herein will be performed by Consultant or
under its direct supervision, and that all personnel engaged in such work shall be
fully qualified and shall be authorized and permitted under applicable State and
local law to perform such tasks and services.
4.6 City Cooperation. City shall provide Consultant with any plans,
publications, reports, statistics, records, or other data or information pertinent to
the Services to be performed hereunder which are reasonably available to
Consultant only from or through action by City.
5.0 INSURANCE
5.1 Insurance. Prior to the beginning of any Services under this Agreement
and throughout the duration of the term of this Agreement, Consultant shall
procure and maintain, at its sole cost and expense, and submit concurrently with
its execution of this Agreement, policies of insurance as set forth in Exhibit E (the
"Insurance Requirements") which is incorporated herein by this reference and
expressly made a part hereof.
6.0 INDEMNIFICATION.
6.1 Indemnification. To the fullest extent permitted by law, Consultant shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City
and any and all of its officers, employees, agents, and volunteers as set forth in
Exhibit F ("Indemnification") which is incorporated herein by this reference and
expressly made a part hereof.
7.0 RECORDS AND REPORTS.
7.1 Reports. Consultant shall periodically prepare and submit to the Contract
Officer such reports concerning Consultant's performance of the Services required
by this Agreement as the Contract Officer shall require. Consultant hereby
acknowledges that City is greatly concerned about the cost of the Services to be
performed pursuant to this Agreement. For this reason, Consultant agrees that if
Consultant becomes aware of any facts, circumstances, techniques, or events that
may or will materially increase or decrease the cost of the Services contemplated
herein or, if Consultant is providing design services, the cost of the project being
designed, Consultant shall promptly notify the Contract Officer of said fact,
circumstance, technique, or event and the estimated increased or decreased cost
related thereto and, if Consultant is providing design services, the estimated
increased or decreased cost estimate for the project being designed.
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7.2 Records. Consultant shall keep, and require any subcontractors to keep,
such ledgers, books of accounts, invoices, vouchers, canceled checks, reports
(including but not limited to payroll reports), studies, or other documents relating to
the disbursements charged to City and the Services performed hereunder (the
"Books and Records"), as shall be necessary to perform the Services required by
this Agreement and enable the Contract Officer to evaluate the performance of
such Services. Any and all such Books and Records shall be maintained in
accordance with generally accepted accounting principles and shall be complete
and detailed. The Contract Officer shall have full and free access to such Books
and Records at all times during normal business hours of City, including the right to
inspect, copy, audit, and make records and transcripts from such Books and
Records. Such Books and Records shall be maintained for a period of three (3)
years following completion of the Services hereunder, and City shall have access to
such Books and Records in the event any audit is required. In the event of
dissolution of Consultant's business, custody of the Books and Records may be
given to City, and access shall be provided by Consultant's successor in interest.
Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds Ten Thousand Dollars ($10,000.00), this
Agreement shall be subject to the examination and audit of the State Auditor, at
the request of City or as part of any audit of City, for a period of three (3) years
after final payment under this Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps, designs,
photographs, studies, surveys, data, notes, computer files, reports, records,
documents, and other materials plans, drawings, estimates, test data, survey
results, models, renderings, and other documents or works of authorship fixed in
any tangible medium of expression, including but not limited to, physical drawings,
digital renderings, or data stored digitally, magnetically, or in any other medium
prepared or caused to be prepared by Consultant, its employees, subcontractors,
and agents in the performance of this Agreement (the "Documents and Materials")
shall be the property of City and shall be delivered to City upon request of the
Contract Officer or upon the expiration or termination of this Agreement, and
Consultant shall have no claim for further employment or additional compensation
as a result of the exercise by City of its full rights of ownership use, reuse, or
assignment of the Documents and Materials hereunder. Any use, reuse or
assignment of such completed Documents and Materials for other projects and/or
use of uncompleted documents without specific written authorization by
Consultant will be at City's sole risk and without liability to Consultant, and
Consultant's guarantee and warranties shall not extend to such use, revise, or
assignment. Consultant may retain copies of such Documents and Materials for its
own use. Consultant shall have an unrestricted right to use the concepts embodied
therein. All subcontractors shall provide for assignment to City of any Documents
and Materials prepared by them, and in the event Consultant fails to secure such
assignment, Consultant shall indemnify City for all damages resulting therefrom.
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In the event City or any person, firm, or corporation authorized by City reuses
said Documents and Materials without written verification or adaptation by
Consultant for the specific purpose intended and causes to be made or makes any
changes or alterations in said Documents and Materials, City hereby releases,
discharges, and exonerates Consultant from liability resulting from said change.
The provisions of this clause shall survive the termination or expiration of this
Agreement and shall thereafter remain in full force and effect.
7.4 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, rights of reproduction, and other intellectual
property embodied in the Documents and Materials. Consultant shall require all
subcontractors, if any, to agree in writing that City is granted a non-exclusive and
perpetual license for the Documents and Materials the subcontractor prepares
under this Agreement. Consultant represents and warrants that Consultant ,has the
legal right to license any and all of the Documents and Materials. Consultant
makes no such representation and warranty in regard to the Documents and
Materials which were prepared by design professionals other than Consultant or
provided to Consultant by City. City shall not be limited in any way in its use of
the Documents and Materials at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City's sole risk.
7.5 Release of Documents. The Documents and Materials shall not be
released publicly without the prior written approval of the Contract Officer or as
required by law. Consultant shall not disclose to any other entity or person any
information regarding the activities of City, except as required by law or as
authorized by City.
8.0 ENFORCEMENT OF AGREEMENT.
8.1 California Law. This Agreement shall be interpreted, construed, and
governed both as to validity and to performance of the parties in accordance with
the laws of the State of California. Legal actions concerning any dispute, claim, or
matter arising out of or in relation to this Agreement shall be instituted in the
Superior Court of the County of Riverside, State of California, or any other
appropriate court in such county, and Consultant covenants and agrees to submit
to the personal jurisdiction of such court in the event of such action.
8.2 Disputes. In the event of any dispute arising under this Agreement, the
injured party shall notify the injuring party in writing of its contentions by
submitting a claim therefore. The injured party shall continue performing its
obligations hereunder so long as the injuring party commences to cure such default
within ten (10) days of service of such notice and completes the cure of such
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default within forty-five (45) days after service of the notice, or such longer period
as may be permitted by the Contract Officer; provided that if the default is an
immediate danger to the health, safety, or general welfare, City may take such
immediate action as City deems warranted. Compliance with the provisions of this
Section shall be a condition precedent to termination of this Agreement for cause
and to any legal action, and such compliance shall not be a waiver of any party's
right to take legal action in the event that the dispute is not cured, provided that
nothing herein shall limit City's right to terminate this Agreement without cause
pursuant to Section 8.8. During the period of time that Consultant is in default,
City shall hold all invoices and shall, when the default is cured, proceed with
payment on the invoices. In the alternative, City may, in its sole discretion, elect
to pay some or all of the outstanding invoices during any period of default.
8.3 Retention of Funds. City may withhold from any monies payable to
Consultant sufficient funds to compensate City for any losses, costs, liabilities, or
damages it reasonably believes were suffered by City due to the default of
Consultant in the performance of the Services required by this Agreement.
8.4 Waiver. No delay or omission in the exercise of any right or remedy of a
non -defaulting party on any default shall impair such right or remedy or be
construed as a waiver. City's consent or approval of any act by Consultant
requiring City's consent or approval shall not be deemed to waive or render
unnecessary City's consent to or approval of any subsequent act of Consultant.
Any waiver by either party of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of this
Agreement.
8.5 ffights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and
remedies of the parties are cumulative and the exercise by either party of one or
more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other
default by the other party.
8.6 Legal Action. In addition to any other rights or remedies, either party
may take legal action, at law or at equity, to cure, correct, or remedy any default,
to recover damages for any default, to compel specific' performance of this
Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy
consistent with the purposes of this Agreement.
8.7 Termination Prior To Expiration Of Term. This Section shall govern any
termination of this Agreement, except as specifically provided in the following
Section 8.9 for termination for cause. City reserves the right to terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written
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notice to Consultant. Upon receipt of any notice of termination, Consultant shall
immediately cease all Services hereunder except such as may be specifically
approved by the Contract Officer. Consultant shall be entitled to compensation for
all Services rendered prior to receipt of the notice of termination and for any
Services authorized by the Contract Officer thereafter in accordance with the
Schedule of Compensation or such as may be approved by the Contract Officer,
except as provided in Section 8.3.
8.8 Termination for Default of Consultant. If termination is due to the failure
of Consultant to fulfill its obligations under this Agreement, City may, after
compliance with the provisions of Section 8.2, take over the Services and
prosecute the same to completion by contract or otherwise, and Consultant shall
be liable to the extent that the total cost for completion of the Services required
hereunder exceeds the compensation herein stipulated (provided that City shall use
reasonable efforts to mitigate such damages), and City may withhold any payments
to Consultant for the purpose of setoff or partial payment of the amounts owed
City as previously stated in Section 8.3.
8.9 Attorneys' Fees. If either party to this Agreement is required to initiate
or defend or made a party to any action or proceeding in any way connected with
this Agreement, the prevailing party in such action or proceeding, in addition to any
other relief which may be granted, whether legal or equitable, shall be entitled to
reasonable attorneys' fees; provided, however, that the attorneys' fees awarded
pursuant to this Section shall not exceed the hourly rate paid by City for legal
services multiplied by the reasonable number of hours spent by the prevailing party
in the conduct of the litigation. Attorneys' fees shall include attorneys' fees on any
appeal, and in addition a party entitled to attorneys' fees shall be entitled to all
other reasonable costs for investigating such action, taking depositions and
discovery, and all other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on commencement of
such action and shall be enforceable whether or not such action is prosecuted to
judgment. The court may set such fees in the same action or in a separate action
brought for that purpose.
9.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1 Non -liability of City Officers and Employees. No officer, official,
employee, agent, representative, or volunteer of City shall be personally liable to
Consultant, or any successor in interest, in the event or any default or breach by
City or for any amount which may become due to Consultant or to its successor, or
for breach of any obligation of the terms of this Agreement.
9.2 Conflict of Interest. Consultant covenants that neither it, nor any officer
or principal of it, has or shall acquire any interest, directly or indirectly, which
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would conflict in any manner with the interests of City or which would in any way
hinder Consultant's performance of the Services under this Agreement. Consultant
further covenants that in the performance of this Agreement, no person having any
such interest shall be employed by it as an officer, employee, agent, or
subcontractor without the express written consent of the Contract Officer.
Consultant agrees to at all times avoid conflicts of interest or the appearance of
any conflicts of interest with the interests of City in the performance of this
Agreement.
No officer or employee of City shall have any financial interest, direct or
indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to this Agreement which effects his financial interest or the
financial interest of any corporation, partnership or association in which he is,
directly or indirectly, interested, in violation of any State statute or regulation.
Consultant warrants that it has not paid or given and will not pay or give any third
party any money or other consideration for obtaining this Agreement.
9.3 Covenant against Discrimination. Consultant covenants that, by and for
itself, its heirs, executors, assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or group
of persons on account of any impermissible classification including, but not limited
to, race, color, creed, religion, sex, marital status, sexual orientation, national
origin, or ancestry in the performance of this Agreement. Consultant shall take
affirmative action to insure that applicants are employed and that employees are
treated during employment without regard to their race, color, creed, religion, sex,
marital status, sexual orientation, national origin, or ancestry.
10.0 MISCELLANEOUS PROVISIONS
10.1 Notice. Any notice, demand, request, consent, approval, or
communication either party desires or is required to give the other party or any
other person shall be in writing and either served personally or sent by prepaid,
first-class mail to the address set forth below. Either party may change its address
by notifying the other party of the change of address in writing. Notice shall be
deemed communicated forty-eight (48) hours from the time of mailing if mailed as
provided in this Section.
To City:
CITY OF LA QUINTA
Attention: Frank Spevacek,
City Manager
78-495 Calle Tampico
La Quinta, California 92253
Last revised April 2015 -12-
To Consultant:
NAI CONSULTING, INC.
Attention: Lloyd Nickerson, Jr.
President
68-955 Adelina Road
Cathedral City, CA 92234
10.2Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for
or against either party by reason of the authorship of this Agreement or any other
rule of construction which might otherwise apply.
10.3 Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only and
shall not limit or otherwise affect the terms of this Agreement.
10.4 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and such counterparts shall constitute one
and the same instrument
10.5 Integrated Agreement. This Agreement including the exhibits hereto is
the entire, complete, and exclusive expression of the understanding of the parties.
It is understood that there are no oral agreements between the parties hereto
affecting this Agreement and this Agreement supersedes and cancels any and all
previous negotiations, arrangements, agreements, and understandings., if any,
between the parties, and none shall be used to interpret this Agreement.
10.6 Amendment. No amendment to or, modification of this Agreement shall
be valid unless made in writing and approved by Consultant and by the City Council
of City. The parties agree that this requirement for written modifications cannot be
waived and that any attempted waiver shall be void.
10.7 Severability. In the event that any one or more of the articles, phrases,
sentences, clauses, paragraphs, or sections contained in this Agreement shall be
declared invalid or unenforceable, such invalidity or unenforceability shall not affect
any of the remaining articles, phrases, sentences, clauses, paragraphs, or sections
of this Agreement which are hereby declared as severable and shall be interpreted
to carry out the intent of the parties hereunder unless the invalid provision is so
material that its invalidity deprives either party of the basic benefit of their bargain
or renders this Agreement meaningless.
10.8 Unfair Business Practices Claims. In entering into this Agreement,
Consultant offers and agrees to assign to City all rights, title, and interest in and to
all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C.
§ 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700)
of Part 2 of Division 7 of the Business and Professions Code), arising from
purchases of goods, services, or materials related to this Agreement. This
assignment shall be made and become effective at the time City renders final
payment to Consultant without further acknowledgment of the parties.
Last revised April 2015 -13-
10.9 No Third Partv Beneficiaries. With the exception of the specific
provisions set forth in this Agreement, there are no intended third -party
beneficiaries under this Agreement and no such other third parties shall have any
rights or obligations hereunder.
10.10 Authority. The persons executing this Agreement on behalf of each of
the parties hereto represent and warrant that (i) such party is duly organized and
existing, (ii) they are duly authorized to execute and deliver this Agreement on
behalf of said party, (iii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iv) that entering into this
Agreement does not violate any provision of any other Agreement to which said
party is bound. This Agreement shall be binding upon the heirs, executors,
administrators, successors, and assigns of -the parties.
[SIGNATURES ON FOLLOWING PAGE]
Last revised April 2015 -14-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates stated below.
CITY OF LA QUINTA,
a California municipal corporation
NK ,f SPEVJJ CEK, City Manager
NTINW I •j
ATTEST: `J
tjkc -
MONIKA RAID A, D4�-tyCity Clerk,
La Quinta, California
APPROVED AS TO FORM:
i
a, L ', A WILLIAM H. IH K , City Attorney
City of La Quinta, California
CONSULTANT:
F
By:
Name:y��l- l,r.
Title: P
By:
Name:
Title:
Two signatures are required if Consultant is a corporation.
NOTE: CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY
THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
Last revised April 2015 -15-
Exhibit A
Scope of Services
As directed by City Staff, the consultant's services shall include, but are not limited
to the performance of the following assignments, duties and tasks:
• Project Management and Contract Administration Support Services for all
projects the contractor has initiated and managed since 2015, and to provide in-
house staff training on assuming current contracts project management.
a Prepare and submit necessary documents, and coordinate with various regional,
county, state and federal funding agencies to acquire and maintain funding
approval.
• Prepare and track project schedules.
• Prepare correspondence, reports, and memorandums necessary to administer
various City capital improvement projects.
■ Assist with bidding procedures, prepare bid summary comparisons in a table
format, and make recommendations for City Council consideration to award
Public Works contracts for construction.
• Prepare and conduct informal request for proposals to construction support sub -
consultants, summarize proposals received and make recommendations for
award of Professional Services Agreements.
• Monitor and report on project status, budget vs. actual expenditures, and
contract time vs. actual time.
• Prepare staff reports for City Council consideration, as necessary.
Other work objectives may include:
• Preparation and/or, management of the City's Development Impact Fee Update.
• Continued assistance with issues associated with the Coachella Valley
Transportation Uniform Mitigation Fee (TUMF) Program.
• Continued assistance with the Measure A '/2 Cent Sales Tax Capital
Improvement Plan and Maintenance of Effort requirements.
• Provide design services for minor Capital Improvement Projects.
• Other duties as assigned by the Public Works Director/City Engineer
Last revised April 2015 EXHIBIT A
Page 1 of 1
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for in Section
2.2 of this Agreement, the maximum total compensation to be paid to Consultant
under this Agreement is Four Hundred Eighty -Seven Thousand, Four Hundred Fifty -
Five Dollars ($487,455.00) ("Contract Sum"). The Contract Sum shall be paid to
Consultant in installment payments made on a monthly basis and in an amount
identified in Consultants Schedule of Compensation attached hereto for the work
tasks performed and properly invoiced by Consultant in conformance with Section
2.2 of the Agreement.
Project Manager
Professional Civil Engineer
Design Engineer
CAD Draftsman
Project Technician
Secretarial Support
$145.00 per hour
$145.00 per hour
$1 10.00 per hour
$85.00 per hour
$85.00 per hour
$65.00 per hour
Any reimbursable expenses shall be provided at cost, without mark-up or additional
overhead.
Last revised April 2015 EXHIBIT B
Page 1 of 1
Exhibit C
Schedule of Performance
Consultant shall complete all services within the TIME LINE ALLOWED BY THE
TOTAL CONTRACT SUM.
Last revised April 2015 EXHIBIT C
Page 1 of 1
Exhibit D
Special Requirements
Projects covered by this Agreement may be partially funded by various Program
funds administered through the California Department of Transportation (Caltrans).
As such, the Consultant shall comply with the requirements of 48 CFR, Federal
Acquisition Regulations System, Chapter 1, Part 31 et seq.; 49 CFR, Part 18,
Uniform Administrative Requirements for Grants and Cooperative Agreements to
State and Local Governments, and Caltrans Local Procedures Manual Processing
Procedures for Implementing Federal and/or State Funded Local Public
Transportation Projects.
Debarment And Suspension Certification.
TITLE 49, CODE OF FEDERAL REGULATIONS, PART 29
The Consultant's signature affixed to this Agreement shall constitute a
certification, under penalty of perjury, that, except as noted below, he/she or any
other person associated therewith in the capacity of owner, partner, director,
officer, and manager:
• Is not currently under suspension, debarment, voluntary exclusion, or
determination of ineligibility by any federal agency;
• Has not been suspended, debarred, voluntarily excluded or determined
ineligible by any federal agency within the past 3 years;
■ Does not have a proposed debarment pending; and
• Has not been indicted, convicted, or had a civil judgment rendered against it
by a court of competent jurisdiction in any matter involving fraud or official
misconduct within the past 3 years.
If there are any exceptions to this certification, insert the exceptions in the
following space.
None.
Exceptions will not necessarily result in denial of award, but will be considered in
determining bidder responsibility. For any exception noted above, indicate below to
whom it applies, initiating agency, and dates of action.
Notes: Providing false information may result in criminal prosecution or
administrative sanctions. The above certification is part of the
Agreement. Signing this Agreement on the signature portion thereof
shall also constitute signature of this Certification.
Last revised April 2015 EXHIBIT D
Page 1 of 1
1. Rebates, Kickbacks Or Other Unlawful Consideration. The CONSULTANT
warrants that this contract was not obtained or secured through rebates
kickbacks or other unlawful consideration, either promised or paid to any
LOCAL AGENCY employee. For breach or violation of this warranty, LOCAL
AGENCY shall have the right in its discretion; to terminate the contract
without liability; to pay only for the value of the work actually performed; or
to deduct from the contract price; or otherwise recover the full amount of
such rebate, kickback or other unlawful consideration.
2. Prohibition Of Expendinq Local Agency State Or Federal Funds For Lobbvinq.
A. The CONSULTANT certifies to the best of his or her knowledge and belief
that:
1) No state, federal or local agency appropriated funds have been paid, or
will be paid by -or -on behalf of the CONSULTANT to any person for
influencing or attempting to influence an officer or employee of any
state or federal agency; a Member of the State Legislature or United
States Congress; an officer or employee of the Legislature or
Congress; or any employee of a Member of the Legislature or
Congress, in connection with the awarding of any state or federal
contract; the making of any state or federal grant; the making of any
state or federal loan; the entering into of any cooperative agreement,
and the extension, continuation, renewal, amendment, or modification
of any state or federal contract, grant, loan, or cooperative agreement.
2) If any funds other than federal appropriated funds have been paid, or
will be paid to any person for influencing or attempting to influence an
officer or employee of any federal agency; a Member of Congress; an
officer or employee of Congress, or an employee of a Member of
Congress; in connection with this federal contract, grant, loan, or
cooperative agreement; the CONSULTANT shall complete and submit
Standard Form-LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was
placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction
imposed by Section 1352, Title 31, US. Code. Any person who fails to file
the required certification shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
EXHIBIT D
Page 2 of 7
C. The CONSULTANT also agrees by signing this document that he or she shall
require that the language of this certification be included in all lower -tier
subcontracts, which exceed $100,000, and that all such sub recipients shall
certify and disclose accordingly.
3. Certifications.
Caltrans LAPM Exhibits 10-F Certification of Consultant and 10-G
Certification of Local Agency, are attached and a part of this Agreement.
4. Cost Principles.
A. NAI agrees that the Contract Cost Principles and Procedures, 48 CFR,
Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq.,
shall be used to determine the allowability of cost individual items.
B. The NAI also agrees to comply with federal procedures in accordance with
49 CFR, Part 18, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments.
C. Any costs for which payment has been made to DESIGN PROFESSIONAL
that are determined by subsequent audit to be unallowable under 48 CFR,
Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are
subject to repayment by NAI to the City.
5. Retention of Records/Audit.
For the purpose of determining compliance with Public Contract Code
10115, et seq. and Title 21, California Code of Regulations, Chapter 21,
Section 2500 et seq., when applicable and other matters connected with the
performance of the contract pursuant to _ Government Code 8546.7; the
CONSULTANT, subcontractors, and the City shall maintain all books,
documents, papers, accounting records, and other evidence pertaining to the
performance of the contract, including but not limited to, the costs of
administering the contract. All parties shall make such materials available at
their respective offices at all reasonable times during the contract period and
for three years from the date of final payment under the contract. The state,
the State Auditor, City, FHWA, or any duly authorized representative of the
federal government shall have access to any books, records, and documents
of the CONSULTANT that are pertinent to the contract for audit,
examinations, excerpts, and transactions, and copies thereof shall be
furnished if requested. Subcontracts in excess of $25,000 shall contain this
provision.
EXHIBIT D
Page 3 of 7
Community Development Block Grant (CDBG) Project Regulations
CDBG funded work under this Professional Services Agreement is subject to all
applicable Federal, State, and local laws and regulations, including but not limited
to the regulations pertaining to the Community Development Block Grant program
(24 CFR and Part 570), Executive Order #1 1246,and other applicable requirements.
1. Access to Records and Records Retention:
The Consultant and any sub -consultants shall allow all duly authorized County,
Federal, or State officials or authorized representatives access to the work area, as
well as all books, documents, materials, papers, and records of the Consultant and
any Sub -consultants that are directly pertinent to a specific program for the
purpose of making audits, examinations, excerpts, and transcriptions.
The Consultant and any sub -consultants further agree to maintain and keep such
books, documents, materials, papers, and records, on a current basis, recording all
transactions pertaining to this agreement in a form in accordance with generally
acceptable accounting principles.
All such books and records shall be retained for such periods of time as required by
law, provided, however, notwithstanding any shorter periods of retention, all
books, records, and supporting detail shall be retained for a period of at least four
(4) years after the expiration of the term of this Agreement.
2. Federal Employee Benefit Clause:
No member of or delegate to the congress of the United States, and no Resident
Commissioner shall be admitted to any share or part of this agreement or to any
benefit to arise from the same.
3. Equal Opportunity
The Consultant will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, or national origin. Consultant will
ensure that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex or national origin. The Consultant will
take affirmative action to ensure that applicants are employed and the employees
are treated during employment, without regard to their race color, religion, sex, or
national origin. Such actions shall include, but are not limited to, the following:
employment, up -grading, demotion, or transfer; recruitment or recruitment
advertising; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Consultant agrees to post in a conspicuous place,
EXHIBIT D
Page 4 of 7
available to employees and applicants for employment, notices to be provided by
HUD setting forth the provisions of this non -discriminating clause.
4. Section 3 of the Housing and Community Development Act of 1968
Economic Opportunities for Section 3 Residents and Section 3 Business Concerns
Sec. 135.38 Section 3 clause.
All Section 3 covered contracts shall include the following clause (referred to as the
Section 3 Clause):
A. The work to be performed under this contract is subject to the
requirements of Section 3 of the Housing and Urban Development Act of 1968, as
amended, 12 U.S.C. 1701 u (Section 3). The purpose of Section 3 is to ensure that
employment and other economic opportunities generated by HUD assistance or
HUD -assisted projects covered by Section 3, shall, to the greatest extent feasible,
be directed to low- and very low-income persons, particularly persons who are
recipients of HUD assistance for housing.
B. The parties to this contract agree to comply with HUD's regulations in
24 CFR part 135, which implement Section 3. As evidenced by their execution of
this contract, the parties to this contract certify that they are under no contractual
or other impediment that would prevent them from complying with the part 135
regulations.
C. The contractor agrees to send to each labor organization or
representative of workers with which the contractor has a collective bargaining
agreement or other understanding, if any, a notice advising the labor organization
or workers' representative of the contractor's commitments under this Section 3
clause, and will post copies of the notice in conspicuous places at the work site
where both employees and applicants for training and employment positions can
see the notice. The notice shall describe the Section 3 preference, shall set forth
minimum number and job titles subject to hire, availability of apprenticeship and
training positions, the qualifications for each; and the name and location of the
person(s) taking applications for each of the positions; and the anticipated date the
work shall begin.
D. The contractor agrees to include this Section 3 clause in every
subcontract subject to compliance with regulations in 24 CFR part 135, and agrees
to take appropriate action, as provided in an applicable provision of the subcontract
EXHIBIT D
Page 5 of 7
or in this Section 3 clause, upon a finding that the subcontractor is in violation of
the regulations in 24 CFR part 135. The contractor will not subcontract with any
subcontractor where the contractor has notice or knowledge that the subcontractor
has been found in violation of the regulations in 24 CFR part 135.
E. The contractor will certify that any vacant employment positions,
including training positions, that are filled (1) after the contractor is selected but
before the contract is executed, and (2) with persons other than those to whom
the regulations of 24 CFR part 135 require employment opportunities to be
directed, were not filled to circumvent the contractor's obligations under 24 CFR
part 135.
F. The contractor will certify that any vacant employment positions,
including training positions, that are filled (1) after the contractor is selected but
before the contract is executed, and (2) with persons other than those to whom
the regulations of 24 CFR part 135 require employment opportunities to be
directed, were not filled to circumvent the contractor's obligations under 24 CFR
part 135.
G. Noncompliance with HUD's regulations in 24 CFR part 135 may result
in sanctions, termination of this contract for default, and debarment or suspension
from future HUD assisted contracts.
H. With respect to work performed in connection with Section 3 covered
Indian housing assistance, Section 7(b) of the Indian Self -Determination and
Education Assistance Act (25 U.S.C. 450e) also applies to the work to be
performed under this contract. Section 7(b) requires that to the greatest extent
feasible (i) preference and opportunities for training and employment shall be given
to Indians, and (ii) preference in the award of contracts and subcontracts shall be
given to Indian organizations and Indian -owned Economic Enterprises. Parties to
this contract that are subject to the provisions of Section 3 and Section 7(b) agree
to comply with Section 3 to the maximum extent feasible, but not in derogation of
compliance with Section 7(b).
5. Certifications and Reporting
Contractor agrees to complete and submit the following reporting forms at the
initiation of project activities:
A. Exhibit 13-5/13-6: BIDDER CERTIFICATION FOR AFFIRMATIVE ACTION
EXHIBIT D
Page 6 of 7
B. Exhibit B-8: QUESTIONNAIRE REGARDING BIDDER
Exhibit PA-5: SECTION 3 SUMMARY REPORT
EXHIBIT D
Page 7 of 7
Exhibit E
Insurance Requirements
E.1 Insurance. Prior to the beginning of and throughout the duration of this
Agreement, the following policies shall be maintained and kept in full force and
effect providing insurance with minimum limits as indicated below and issued by
insurers with A.M. Best ratings of no less than A -:VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers' Compensation
(per statutory requirements)
Consultant shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, Commercial General Liability
insurance against all claims for injuries against persons or damages to property
resulting from Consultant's acts or omissions rising out of or related to
Consultant's performance under this Agreement. The insurance policy shall contain
a severability of interest clause providing that the coverage shall be primary for
losses arising out of Consultant's performance hereunder and neither City nor its
insurers shall be required to contribute to any such loss. A certificate evidencing
the foregoing and naming City and its officers and employees as additional insured
(on the Commercial General Liability policy only) shall be delivered to and approved
by City prior to commencement of the services hereunder.
Consultant shall carry automobile liability insurance of $1,000,000 per
accident against all claims for injuries against persons or damages to property
arising out of the use of any automobile by Consultant, its officers, any person
directly or indirectly employed by Consultant, any subcontractor or agent, or
anyone for whose acts any of them may be liable, arising directly or indirectly out
of or related to Consultant's performance under this Agreement. If Consultant or
Consultant's employees will use personal autos in any way on this project,
Consultant shall provide evidence of personal auto liability coverage for each such
person. The term "automobile" includes, but is not limited to, a land motor vehicle,
trailer or semi -trailer designed for travel on public roads. The automobile insurance
policy shall contain a severability of interest clause providing that coverage shall be
Last revised April 2015 EXHIBIT E
Page 1 of 6
primary for losses arising out of Consultant's performance hereunder and neither
City nor its insurers shall be required to contribute to such loss.
Professional Liability or Errors and Omissions Insurance as appropriate
shall be written on a policy form coverage specifically designed to protect against
acts, errors or omissions of the consultant and "Covered Professional Services" as
designated in the policy must specifically include work performed under this
agreement. The policy limit shall be no less than $1,000,000 per claim and in the
aggregate. The policy must "pay on behalf of" the insured and must include a
provision establishing the insurer's duty to defend. The policy retroactive date shall
be on or before the effective date of this agreement.
Consultant shall carry Workers' Compensation Insurance in accordance
with State Worker's Compensation laws with employer's liability limits no less than
$1,000,000 per accident or disease.
Consultant shall provide written notice to City within ten (10) working
days if: (1) any of the required insurance policies is terminated; (2) the limits of
any of the required polices are reduced; or (3) the deductible or self -insured
retention is increased. In the event any of said policies of insurance are cancelled,
Consultant shall, prior to the cancellation date, submit new evidence of insurance
in conformance with this Exhibit to the Contract Officer. The procuring of such
insurance or the delivery of policies or certificates evidencing the same shall not be
construed as a limitation of Consultant's obligation to indemnify City, its officers,
employees, contractors, subcontractors, or agents.
E.2 Remedies. In addition to any other remedies City may have if Consultant
fails to provide or maintain any insurance policies or policy endorsements to the
extent and within the time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or
withhold any payment(s) which become due to Consultant hereunder until
Consultant demonstrates compliance with the requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any
other remedies City may have. The above remedies are not the exclusive remedies
for Consultant's failure to maintain or secure appropriate policies or endorsements.
Nothing herein contained shall be construed as limiting in any way the extent to
which Consultant may be held responsible for payments of damages to persons or
Last revised April 2015 EXHIBIT E
Page 2 of 6
property resulting from Consultant's or its subcontractors' performance of work
under this Agreement.
E.3 General Conditions Pertaininq to Provisions of Insurance Coveraqe by
Consultant. Consultant and City agree to the following with respect to insurance
provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds City, its officials,
employees, and agents, using standard ISO endorsement No. CG 2010 with an
edition prior to 1992. Consultant also agrees to require all contractors, and
subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this
Agreement shall prohibit Consultant, or Consultant's employees, or agents, from
waiving the right of subrogation prior to a loss. Consultant agrees to waive
subrogation rights against City regardless of the applicability of any insurance
proceeds, and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Consultant and
available or applicable to this Agreement are intended to apply to the full extent of
the policies. Nothing contained in this Agreement or any other agreement relating
to City or its operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with
these requirements if they include any limiting endorsement of any kind that has
not been first submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would
serve to eliminate so-called "third party action over" claims, including any exclusion
for bodily injury to an employee of the insured or of any contractor or
subcontractor.
6. All coverage types and limits required are subject to approval,
modification and additional requirements by the City, as the need arises.
Consultant shall not make any reductions in scope of coverage (e.g. elimination of
contractual liability or reduction of discovery period) that may affect City's
protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting
of certificates of insurance evidencing all of the coverages required and an
additional insured endorsement to Consultant's general liability policy, shall be
delivered to City at or prior to the execution of this Agreement. In the event such
proof of any insurance is not delivered as required, or in the event such insurance is
Last revised April 2015 EXHIBIT E
Page 3 of 6
canceled at any time and no replacement coverage is provided, City has the right,
but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid
by City shall be charged to and promptly paid by Consultant or deducted from
sums due Consultant, at City option.
8. It is acknowledged by the parties of this agreement that all
insurance coverage required to be provided by Consultant or any subcontractor, is
intended to apply first and on a primary, non-contributing basis in relation to any
other insurance or self-insurance available to City.
9. Consultant agrees to ensure that subcontractors, and any other
party involved with the project that is brought onto or involved in the project by
Consultant, provide the same minimum insurance coverage required of Consultant.
Consultant agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with the
requirements of this section. Consultant agrees that upon request, all agreements
with subcontractors and others engaged in the project will be submitted to City for
review.
10. Consultant agrees not to self -insure or to use any self -insured
retentions or deductibles on any portion of the insurance required herein (with the
exception of professional liability coverage, if required) and further agrees that it
will not allow any contractor, subcontractor, Architect, Engineer or other entity or
person in any way involved in the performance of work on the project
contemplated by this agreement to self -insure its obligations to City. If
Consultant's existing coverage includes a deductible or self -insured retention, the
deductible or self -insured retention must be declared to the City. At that time the
City shall review options with the Consultant, which may include reduction or
elimination of the deductible or self -insured retention, 'substitution of other
coverage, or other solutions.
11. The City reserves the right at any time during "the term of this
Agreement to change the amounts and types of insurance required by giving the
Consultant ninety (90) days advance written notice of such change. If such
change results in substantial additional cost to the Consultant, the City will
negotiate additional compensation proportional to the increased benefit to City.
12. For purposes of applying insurance coverage only, this Agreement
will be deemed to have been executed immediately upon any party hereto taking
any steps that can be deemed to be in furtherance of or towards performance of
this Agreement.
Last revised April 2015 EXHIBIT E
Page 4 of 6
13. Consultant acknowledges and agrees that any actual or alleged
failure on the part of City to inform Consultant of non-compliance with any
insurance requirement in no way imposes any additional obligations on City nor
does it waive any rights hereunder in this or any other regard.
14. Consultant will renew the required coverage annually as long as
City, or its employees or agents face an exposure from operations of any type
pursuant to this agreement. This obligation applies whether or not the agreement
is canceled or terminated for any reason. Termination of this obligation is not
effective until City executes a written statement to that effect.
15. Consultant shall provide proof that policies of insurance required
herein expiring during the term of this Agreement have been renewed or replaced
with other policies providing at least the same coverage. Proof that such coverage
has been ordered shall be submitted prior to expiration. A coverage binder or letter
from Consultant's insurance agent to this effect is acceptable. A certificate of
insurance and/or additional insured endorsement as required in these specifications
applicable to the renewing or new coverage must be provided to City within five (5)
days of the expiration of coverages.
16. The provisions of any workers' compensation or similar act will not
limit the obligations of Consultant under this agreement. Consultant expressly
agrees not to use any statutory immunity defenses under such laws with respect to
City, its employees, officials, and agents.
17. Requirements of specific coverage features or limits contained in
this section are not intended as limitations on coverage, limits or other
requirements nor as a waiver of any coverage normally provided by any given
policy. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue, and is not intended by any party or
insured to be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and
distinct from any other provision in this Agreement and are intended by the parties
here to be interpreted as such.
19. The requirements in this Exhibit supersede all other sections and
provisions of this Agreement to the extent that any other section or provision
conflicts with or impairs the provisions of this Exhibit.
20. Consultant agrees to be responsible for ensuring that no contract
used by any party involved in any way with the project reserves the right to charge
City or Consultant for the cost of additional insurance coverage required by this
agreement. Any such provisions are to be deleted with reference to City. It is not
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the intent of City to reimburse any third party for the cost of complying with these
requirements. There shall be no recourse against City for payment of premiums or
other amounts with respect thereto.
21. Consultant agrees to provide immediate notice to City of any claim
or loss against Consultant arising out of the work performed under this agreement.
City assumes no obligation or liability by such notice, but has the right (but not the
duty) to monitor the handling of any such claim or claims if they are likely to
involve City.
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Exhibit F
Indemnification
F.1 General Indemnification Provision.
a. Indemnification for Professional Liability. When the law establishes
a professional standard of care for Consultant's Services, to the fullest extent
permitted by law, Consultant shall indemnify, protect, defend (with counsel
selected by City), and hold harmless City and any and all of its officials, employees,
and agents ("Indemnified Parties") from and against any and all claims, losses,
liabilities of every kind, nature, and description, damages, injury (including, without
limitation, injury to or death of an employee of Consultant or of any subcontractor),
costs and expenses of any kind, whether actual, alleged or threatened, including,
without limitation, incidental and consequential damages, court costs, attorneys'
fees, litigation expenses, and' fees of expert consultants or expert witnesses
incurred in connection therewith and costs of investigation, to the extent same are
cause in whole or in part by any negligent or wrongful act, error or omission of
Consultant, its officers, agents, employees or subcontractors (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of
professional services under this agreement. With respect to the design of public
improvements, the Consultant shall not be liable for any injuries or property damage
resulting from the reuse of the design at a location other than that specified in
Exhibit A without the written consent of the Consultant.
b. Indemnification for Other Than Professional Liabilitv. Other than in
the performance of professional services and to the full extent permitted by law,
Consultant shall indemnify, defend (with counsel selected by City), and hold
harmless the Indemnified Parties from and against any liability (including liability for
claims, suits, actions, arbitration proceedings, administrative proceedings,
regulatory proceedings, losses, expenses or costs of any kind, whether actual,
alleged or threatened, including, without limitation, incidental and consequential
damages, court costs, attorneys' fees, litigation expenses, and fees of expert
consultants or expert witnesses) incurred in connection therewith and costs of
investigation, where the same arise out of, are a consequence of, or are in any way
attributable to, in whole or in part, the performance of this Agreement by
Consultant or by any individual or entity for which Consultant is legally liable,
including but not limited to officers, agents, employees, or subcontractors of
Consultant.
F.2 Standard Indemnification Provisions. Consultant agrees to obtain
executed indemnity agreements with provisions identical to those set forth herein
this section from each and every subcontractor or any other person or entity
involved by, for, with or on behalf of Consultant in the performance of this
Agreement. In the event Consultant fails to obtain such indemnity obligations from
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others as required herein, Consultant agrees to be fully responsible according to the
terms of this Exhibit. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as a
waiver of any rights hereunder. This obligation to indemnify and defend City as set
forth herein is binding on the successors, assigns or heirs of Consultant and shall
survive the termination of this agreement or this section.
a. Indemnity Provisions for Contracts Related to Construction.
Without affecting the rights of City under any provision of this agreement,
Consultant shall not be required to indemnify and hold harmless City for liability
attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of
competent jurisdiction. In instances where City is shown to have been actively
negligent and where City's active negligence accounts for only a percentage of the
liability involved, the obligation of Consultant will be for that entire portion or
percentage of liability not attributable to the active negligence of City.
b. Indemnification Provision for Design Professionals.
1. Applicability of Section F.2(b). Notwithstanding Section F.2(a)
hereinabove, the following indemnification provision shall apply to Consultants who
constitute "design professionals" as the term is defined in paragraph 3 below.
2. Scope of Indemnification. To the fullest extent permitted by
law, Consultant shall indemnify, defend (with counsel selected by City), and hold
harmless the Indemnified Parties from and against any and all claims, losses,
liabilities of every kind, nature and description, damages, injury (including, without
limitation, injury to or death of an employee of Consultant or of any subcontractor),
costs and expenses of any kind, whether actual, alleged or threatened, including,
without limitation, court costs, attorneys' fees, litigation expenses, and fees of
expert consultants or expert witnesses incurred in connection therewith and costs
of investigation, that arise out of, pertain to, or relate to, directly or indirectly, in
whole or in part, the negligence, recklessness, or willful misconduct of Consultant,
any subcontractor, anyone directly or indirectly employed by them or anyone that
they control.
3. Design Professional Defined. As used in this Section F.2(b),
the term "design professional" shall be limited to licensed architects, registered
professional engineers, licensed professional land surveyors and landscape
architects, all as defined under current law, and as may be amended from time to
time by Civil Code § 2782.8.
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