RFP - Amended Banking Services 2018-12-07
City of La Quinta
RFP Banking and Merchant Services * pg. 1
REQUEST FOR PROPOSAL
Banking and Merchant Services
City of La Quinta
BID ISSUED DATE December 7, 2018
Title: Finance Director
Contact: Karla Campos
Email: kcampos@laquintaca.gov
Phone Number: 760-777-7073
PROPOSAL DUE
Date: Friday, February 15, 2019, 5:00PM
Mail Address and Bid Opening Location: City Clerk
City of La Quinta
78495 Calle Tampico
La Quinta, CA 92253
Sealed written responses must be received by the City Clerk no later than the date, time, and location
indicated above for the Bid Opening. Late submission of responses shall not be considered. Submittal of
response by email or fax are not acceptable.
This Request for Proposals (RFP) was originally issued on August 30, 2018. Bids received may be
utilized in response to this new bid issuance by providing written confirmation on company
letterhead that pricing, information, and terms provided in the response shall remain in effect
through May 30, 2019. Confirmation should be sent via U.S. Postal Service or email to
kcampos@laquintaca.gov. Upon receipt, the City shall provide a written confirmation of your
intent to use the former response for this RFP issuance.
BID CONTENTS
Section I - Purpose of Request for Proposal and General Terms and Conditions
Section II - Introduction
Section III - Schedule of Events
Section IV - Proposer Qualifications
Section V - Evaluation and Award Criteria
Section VI - Proposal Instructions and Scope of Work
Section VII - Bid Form
Appendix A - Consultant Agreement Sample
Appendix B - Reference Submittal Form
Appendix C - Local Business Preference and Certification Request
Note: This bid does not constitute an order for the goods or services specified.
City of La Quinta
RFP Banking and Merchant Services * pg. 2
SECTION I
PURPOSE OF REQUEST FOR PROPOSAL
AND GENERAL TERMS AND CONDITIONS
1.0 PURPOSE OF REQUEST FOR PROPOSAL
The City of La Quinta (“the City”), Finance Department is currently seeking proposals from qualified
financial institutions for Banking and Merchant Services for its bank accounts and related cash
management services. The primary objective of this proposal is to obtain the most efficient, high
quality services at the most reasonable cost.
1.1 PRE-PROPOSAL CONFERENCE – None
1.2 QUESTIONS REGARDING THE RFP
Any questions, interpretations, or clarifications, either administrative or technical, about this RFP
must be requested via email prior to the date indicated in Section III. All pertinent questions will be
answered and conveyed to all Proposers. Oral statements concerning the meaning or intent of the
contents of this RFP by any person is unauthorized and invalid. All questions either technical,
commercial, or contractual in nature shall be directed to: Karla Campos, Finance Director,
kcampos@laquintaca.gov.
1.3 ERRORS AND OMISSIONS
If a Proposer discovers any ambiguity, conflict, discrepancy, omission, or other error in the RFP or
any of its attachments, he/she shall immediately notify the City of such error in writing and request
modification or clarification of the document. Modifications will be made by addenda. Clarifications
will be given by written notice to all parties who have been furnished or who have requested an RFP
for proposing purposes, without divulging the source of the request for same.
If a Proposer fails to notify the City prior to the date fixed for submission of proposals of an error in
the RFP known to him/her, or an error that reasonably should have been known to him/her, he/she
shall bid at his/her own risk, and if he/she is awarded the contract, he/she shall not be entitled to
additional compensation or time by reason of the error or its later correction.
1.4 ADDENDA
The City may modify this RFP, any of its key action dates, or any of its attachments, prior to the bid
submittal date. Addenda will be numbered consecutively as a suffix to the RFP Reference Number.
It is the Proposer’s responsibility to ensure they have incorporated all addenda. Failure to
acknowledge and incorporate addenda will not relieve the Proposer of the responsibility to meet all
terms and conditions of the RFP and any subsequent addenda.
1.5 SUBMISSION OF PROPOSAL
Proposals will be accepted on or before the date and time indicated in the Schedule of Events, Section
III, in accordance with Section VI, Proposal Instructions and Format.
1.6 PROPOSER’S COST
Costs for developing proposals are entirely the responsibility of the Proposer and shall not be
chargeable to the City of La Quinta.
1.7 EXCEPTIONS
If a Bidder takes exception to any part of these specifications as written, or as amended by any
addenda subsequently issued, or the Agreement, they must do so in writing. Said exceptions must
City of La Quinta
RFP Banking and Merchant Services * pg. 3
be submitted with the proposal. Failure to do so will be construed as acceptance of all items of the
specification and the Agreement.
1.8 DELIVERY OF PROPOSALS
Proposals submitted by mail should be postmarked sufficiently in advance of the bid opening to ensure
delivery to the City Clerk, City of La Quinta, prior to the specified opening time. The City assumes no
responsibility for delay in delivery of the proposal by U.S. Mail or any other service. LATE PROPOSALS
WILL NOT BE ACCEPTED.
1.9 PROPOSALS BECOME THE PROPERTY THE OF CITY OF LA QUINTA
Proposals become the property of the City and information contained therein shall become public
property subject to disclosure laws after Notice of Intent to Award. The City reserves the right to
make use of any information or ideas contained in the proposal.
1.10 CONFIDENTIAL MATERIAL
Proposer must notify City in advance of any proprietary or confidential material contained in the
proposal and provide justification for not making such material public. City shall have sole discretion
to disclose or not disclose such material subject to any protective order which Proposer may obtain.
1.11 REJECTION OF PROPOSALS
City may reject any or all proposals and may waive any immaterial deviation in a proposal. City of
La Quinta's waiver of an immaterial defect shall in no way modify the RFP documents or excuse the
Proposer from full compliance with the specifications if he/she is awarded the contract. Proposals
referring to terms and conditions other than City of La Quinta’s terms and conditions may be rejected
as being non-responsive.
The City may make investigations as deemed necessary to determine the ability of the Proposer to
perform the work, and the Proposer shall furnish to City of La Quinta all such information and data
for this purpose as requested by the City. The City reserves the right to reject any proposal if the
evidence submitted by, or investigation of, such Proposer fails to satisfy the City that such Proposer
is properly qualified to carry out the obligations of the contract and to complete the work specified.
1.12 CANCELLATION
This solicitation does not obligate the City to enter into an agreement. City of La Quinta retains the
right to cancel this RFP at any time, should the project be canceled, City of La Quinta loses the
required funding, or it is deemed in the best interest of the City. No obligation, either expressed or
implied, exists on the part of the City to make an award or to pay any cost incurred in the preparation
or submission of a proposal.
1.13 INSURANCE REQUIREMENTS
The City requires a certificate of insurance prior to commencement of any work. An underwriter’s
endorsement is also required with additional insured verbiage and must be an admitted surety in the
State of California. Insurance requirements are outlined in the Contract Service Agreement (Exhibit
A).
1.14 LOCAL BUSINESS PREFERENCE
Local vendors are encouraged but not required. For purposes of this section, a “local” shall be defined
as an individual, partnership or corporation which regularly maintains a place of business within a
40-mile radius of the City.
City of La Quinta
RFP Banking and Merchant Services * pg. 4
1.15 DISPUTES/PROTESTS
The City encourages Proposers to resolve issues regarding the requirements or the procurement
process through written correspondence and discussions during the period in which clarifying
addenda may be issued. The City wishes to foster cooperative relationships and to reach a fair
agreement in a timely manner. Formal proposals for major professional and technical services shall
be governed by the City’s Purchasing Policy (Exhibit B).
1.16 AWARD OF CONTRACT
Award, if any, will be to the Proposer whose proposal best complies with all of the requirements of
the RFP documents and any addenda. Evaluation methodology and basis for award are described in
Section V – Evaluation and Award Criteria.
1.17 TERM OF CONTRACT
The period of services shall be five years with the option to renew for five additional one-year periods.
Annual renewals shall be automatic and based on satisfactory performance of service and unless
terminated by either party with thirty (30) days written notice prior to the expiration of each renewal.
Contract Services Agreement (Exhibit A) shall be approved as to form. If modifications are desired, they
shall be disclosed in the response for legal review and approval.
1.18 CONTRACT DOCUMENTS
In the event of a conflict between documents the following order of precedence shall apply:
1. City of La Quinta Contract Services Agreement
2. City of La Quinta Request for Proposal
3. Proposer's Proposal
1.19 EXECUTION OF THE CONTRACT
Upon approval by the City Council, the contract shall be signed by the Proposer and returned, along
with the required attachments to the City of La Quinta within ten (10) working days. The period for
execution may be changed by mutual agreement of the parties. Contracts are not effective until
approved by the appropriate City of La Quinta officials. Any work performed prior to receipt of a fully
executed contract shall be at Proposer's own risk.
1.20 FAILURE TO EXECUTE THE CONTRACT
Failure to execute the contract within the time frame identified above shall be sufficient cause for
voiding the award. Failure to comply with other requirements within the set time shall constitute
failure to execute the contract. If the successful Proposer refuses or fails to execute the contract,
the City may award the contract to the next qualified highest ranked Proposer.
1.21 NON-ENDORSEMENT
If a proposal is accepted, the Proposer shall not issue any news releases or other statements
pertaining to the award or servicing of the agreement which state or imply the City endorsement of
Proposer’s services.
1.22 CONFLICT OF INTEREST
The City requires a Statement of Economic Interest (Form 700) to be filed by any proposer who is
involved in the making, of the decisions which may have a foreseeable material effect on any City
financial interest [reference Government Code § 82019].
City of La Quinta
RFP Banking and Merchant Services * pg. 5
SECTION II
INTRODUCTION
2.0 INTRODUCTION
The City is requesting proposals from qualified financial institutions for Banking and Merchant
Services for its bank accounts and related cash management services. The primary objective
of this proposal is to obtain the most efficient, high quality services at the most reasonable
cost.
The City of La Quinta is located 120 miles east of Los Angeles in the eastern portion of
Riverside County known as the Coachella Valley. The City is governed by a five-member City
Council under the Council/Manager form of government. The City was originally incorporated
in 1982 as a general law City and became a charter city in November 1996.
The City provides a range of services, which include construction and maintenance of streets
and other infrastructure; community development and planning; construction and code
compliance; recreational and cultural activities; and general municipal services.
The City contracts with other government agencies and organizations for specific services,
including police and fire protection, library and museum services, water and sewer service,
electricity service, refuse collection, public transit, and street sweeping.
The City is also financially accountable for a legally separate Successor Agency for the former
Redevelopment Agency, a Financing Authority, and a Housing Authority
The City will endeavor to administer the proposal process in accordance with the terms and
dates outlined in this RFP, however, the City reserves the right to modify the activities, time
line, or any other aspect of the process at any time, as deemed necessary by City staff. By
requesting the proposals, the City is in no way obligated to award a contract or pay the
expenses of proposing banks in connection with the preparation or submission of a proposal.
The awarding of any contract shall be contingent on the availability of the funds and the
requisite staff and Council approvals. The decision to award any contract to a particular bank
will be based on a variety of factors as listed in the RFP. It is in the City’s interest to do
business with banking professionals who are dedicated to the government market. No single
factor will determine the final award decision.
City of La Quinta
RFP Banking and Merchant Services * pg. 6
SECTION III
SCHEDULE OF EVENTS
Advertisement December 7, 2018
Release of Request for Proposal December 7, 2018
Last Day for Submission of Questions January 11, 2019
City Response to Questions submitted via
Addendum
January 25, 2019
Deadline for Receipt of Proposals February 15, 2019 at 5:00PM
Evaluation February 18, 2019
Optional Interview if Required Week of March 18, 2019
Tentative Contract Award Date April 16, 2019
*NOTE: The dates subsequent to receipt of proposal may be adjusted without further notice.
SECTION IV
PROPOSER QUALIFICATIONS
City of La Quinta
RFP Banking and Merchant Services * pg. 7
4.0 In addition to meeting all other requirements of this RFP, all responding Proposers
shall furnish verifiable evidence that their firm and personnel, at a minimum, meet the
following qualifications.
a. Be a Federal or State of California chartered institution.
b. Be a member of the Federal Reserve System and have access to all services.
c. Be a qualified State depository for public funds.
d. Be a full-service bank in good standing among other comparable banks.
e. Be capable of providing the services sought by the City, to include a wide range of
electronic payment and deposit services.
f. Agree to assign experienced and dedicated staff committed and capable of servicing
the City’s accounts.
g. Be in compliance and good standing with the Community Reinvestment Act.
h. Be sufficiently capitalized to accommodate the City’s cash management needs and
ensure collateralization of funds.
i. Banking institution shall provide their current ICD rating.
City of La Quinta
RFP Banking and Merchant Services * pg. 8
SECTION V
EVALUATION AND AWARD CRITERIA
5.1 EVALUATION METHOD
The selection of the bank to provide banking and merchant services to the City will be based on a
comprehensive review of the bank’s qualifications as presented in this proposal, overall price and
cost to the City, the experience and success of the bank in providing banking services to similar
clients, the firm’s ability to provide the services outlined in the RFP and an evaluation of the bank’s
ability to be a good business partner with the City.
Proposals will be reviewed and evaluated by an evaluation committee comprised of City of La Quinta
Finance personnel and two Financial Advisory Commission members (La Quinta residents, appointed by
City Council). Award will be made in the best interest of the City of La Quinta.
5.2 EVALUATION CRITERIA
The proposals will be evaluated and ranked in accordance with the evaluation criteria described
below.
Bank financial strength and ability to protect and collateralize City deposits.
Overall cost to City and ability to guarantee pricing for contract period.
Revenue sharing and/or cost reduction opportunities offered by the bank.
Ability to meet minimum required service levels and offer required bank products.
Quality references and overall experience with public agencies.
Qualifications and strength of the relationship management team.
Ability to offer product and service enhancements.
Location of bank offices.
Other qualitative characteristics as may be presented in the RFP.
Discussions may be conducted with the most qualified bidders for the purpose of clarification
to assure the full understanding of, and conformance to, the solicitation requirements.
Revisions may be permitted after submissions, and prior to award, for the purpose of
obtaining best and final offer.
City of La Quinta
RFP Banking and Merchant Services * pg. 9
SECTION VI
PROPOSAL INSTRUCTIONS, FORMAT, AND SCOPE OF WORK
6.1 INSTRUCTIONS
To be considered responsive to this RFP, Proposer must submit proposals in the format identified in this
section. All requirements and questions in the RFP must be addressed and all requested data must be
supplied. The City of La Quinta reserves the right to request additional information that, in the City’s
opinion, is necessary to assure that the Proposer’s competence, number of qualified employees, business
organization, and financial resources are adequate to perform according to contract. The City also reserves
the right to reject any and all proposals, to waive any non-material irregularities or informalities, and to
accept or reject any item or combination of items. This RFP and the bank’s response, including all
promises, warranties, commitments, and representations made in the successful proposal, will become
binding contractual obligations. Proposed services and related pricing and warranties contained in the
proposal must be valid for a period of 120 days after the submission of the proposal. Any questions
concerning the RFP must be submitted via email to kcampos@laquintaca.gov. All banks wishing to
participate in this selection process are to provide an email address by January 4, 2019 to ensure the City
can respond to questions via email to all proposing parties, thus ensuring all participating parties have
access to the same information.
6.2 NUMBER OF COPIES
The Proposer shall provide a minimum of one (1) original and five (5) duplicates of the proposal
containing section tabs with responses following the same order as the RFP. Each question of the
RFP should be repeated with the bank’s response following. Please refrain from including extraneous
or marketing information. If a service requirement or section of the proposal cannot be met by a
proposer, then “No Proposal” should be indicated on the Bid Form and the relevant section of the
proposal. An alternate equivalent service may be offered. All copies of the proposal must be delivered
sealed. One copy of the proposal must be clearly marked “Master Copy”.
6.3 DELIVERY OF PROPOSALS
a. Address/Deliver proposals to: City Clerk,
City of La Quinta
78495 Calle Tampico
La Quinta, CA 92253
b. Proposals must be received by the City Clerk, no later than 5:00 p.m., Friday, October
5, 2018. Late submissions, including fax or email delivery, will not be accepted.
6.4 PREPARATION
Proposals should be prepared in such a way as to provide a straightforward, concise delineation of
capabilities to satisfy the requirements of this RFP. Emphasis should be on completeness and clarity of
content. Bank personnel signing the cover letter, or any other related forms submitted must be authorized
signers with the requisite authority to represent the bank and to enter into binding contracts with clients.
City of La Quinta
RFP Banking and Merchant Services * pg. 10
6.5 PROPOSAL FORMAT
To assist the City to adequately compare and evaluate each bank’s qualifications objectively, all
proposals must be submitted in the prescribed format.
Cover Letter
It should include the name of the proposing bank, its principle business address where the relationship
will be managed, and the branch address that can meet the daily banking needs of the City and its
employees.
Table of Contents
Tab A – Transmittal Letter: The letter should address the bank’s willingness and
commitment, if selected to provide the service, and why the bank believes it should be
selected. The letter should contain a statement that the bank has read and will comply with
all the terms and conditions of the RFP. The letter should be addressed to Karla Campos,
Finance Director, and signed by an individual authorized to bind the bank.
Tab B – Bank and Personnel File: Please respond to the following:
Bank Overview – Provide a general overview of the bank’s operations, fundamental
management, and customer service philosophy, and financial strength. Identify the primary
office or branch that the City will be assigned to and where the City will conduct its primary
banking business.
Experience – Describe the bank’s direct experience in servicing public sector clients. Please
include the information such as the number of nationwide and California public agency clients,
the dollar amount of public funds on deposit for each of these categories, and the bank’s
knowledge of and adherence to the California Government Code and other applicable laws.
Relationship Management – Identify the size and scope of your California-based public
banking unit, banking officers responsible for the City’s accounts, what each person’s role and
responsibilities will be, and the relevant credentials and experience of each person on the
relationship management team.
Customer Service – Describe how the bank handles problem resolution, customer service,
day-to-day contact, and ongoing maintenance for governmental entities. Specify whom the
City will be calling for day-to-day banking and treasury management issues. Explain the
process for elevating an issue to a higher level to obtain a quick resolution when the day-to-
day contact is not responsive.
Compliance and Exceptions – Include a statement to confirm the bank’s compliance to specific
minimum qualifications, listing any exceptions to required services.
Responsible Banking Description – Describe the bank’s responsible banking policies and
practices. Discuss any current efforts, or those that may be implemented in the City of La
Quinta, if the bank were awarded the City banking contract. Lastly, describe any other
efforts/contributions the bank has made/would make relative to investment in the local
community (such as fraud prevention seminars hosted at the City’s multi-generational
Wellness Center.)
City of La Quinta
RFP Banking and Merchant Services * pg. 11
Tab C – References: Please provide three (3) references. References should include other
California cities of similar size and scope of service utilization as the City of La Quinta. Select
both long standing and recent customers. Include the following information for each
reference:
Contact name and title
Name of agency
Telephone number and email address
Services provided
Tab D – Demand Deposit Accounts: The City currently uses three (3) demand deposit
accounts (DDAs). One is a Zero Balance Accounts with the Deposit Account serving as the
Parent ZBA. Checks are issued using the Accounts Payable Account and Payroll Account.
1. How many days after month-end will the City receive its bank statements?
2. Are the bank statements available on-line?
3. Does the bank offer Zero Balance Accounts (ZBA’s)? If so, please describe the service.
Are the transfers to or from the Parent Account automatic?
4. Does the bank offer ACH blocks or filters? If so, please explain.
5. Does the option exist to create sub-accounts under the primary account?
Tab E – Collateralization of Deposits: The bank is required to collateralize public funds
deposits under the California Government Code, Sections 53651 and 53652. Copies of the
reports filed with the State of California shall be made available to the City upon request.
Please detail the bank’s procedures for collateralizing public funds deposits.
1. What types of securities are used as collateral?
2. Which bank department is responsible for tracking deposits and monitoring collateral?
3. What is the bank’s current level ($ amount) of California public funds deposits and the
related collateral?
4. What is the frequency of reporting to the State Treasurer’s Office?
5. Please include a copy of the Bank’s Contract for Deposit of Moneys in this section.
Tab F – Bank Compensation: The City has historically paid for bank services with a
combination of hard-dollar fees and compensating balances. Please indicate the following in
this section:
1. Can the City compensate the bank for services with fees, balances, or a combination
of the two at its own election? Please describe any differences in related costs to the
City with either option.
2. Can the City choose between paying for analysis deficiencies by check, auto debit, or
ACH credit?
3. What is the bank’s Earning Credit Rate (ECR) based on, and how is it calculated each
month?
4. List the bank’s average ECR for each of the last eight months (January – August,
2018).
5. Using the ECR for the month of August 2018, please calculate the level of
compensating balances (after float and reserves) needed to offset one dollar of the
bank services. ($1 in services = $ _______ in compensating balances.)
6. Please explain in detail, how and when the FDIC assessment is computed and charged.
7. What is the bank’s settlement period for account analysis and billing purposes –
monthly, quarterly, semiannually, or annually? How long can any excess balances be
carried forward to apply to charges in future billing periods?
City of La Quinta
RFP Banking and Merchant Services * pg. 12
8. How long will the bank’s pricing, as indicated in this proposal and the Banking Services
Bid Form, be fixed?
9. Please detail which types of items and services can be applied against the account
analysis in addition to the standard bank services, such as merchant bankcard
processing, messenger service, armored carrier (currently with Garda World picked up
weekly), check stock, supplies, etc. Is there a markup for any of the items? If so, how
much?
10. How does the bank charge for overdrafts? Does the bank charge for the use of
uncollected funds? If so, how is the charge calculated?
11. Please state the negative collected balance charge that the City will pay and, in detail,
explain how this charge is computed. Is the rate quoted in this proposal good for the
term of the contract?
12. Are Account Analysis Reports available on-line? If so, specify the cost.
13. What procedure is used to make any adjustments to the Account Analysis statements
and how long does it take for adjustments to take effect?
Tab G – Deposit Activity: The City currently utilizes a variety of methods to process daily
deposits. The City requires weekly deposit pick-up from City Hall.
Total monthly deposits consist of approximately 600 to 800 un-encoded checks and
approximately $20,000.00 to $30,000.00 in coin and currency. Deposited items should be
automatically re-cleared once. Checks that are returned are mailed to the City. The City
requires the ability to use the branch to make branch deposits, to get change, to allow
employees to cash payroll checks, and for other miscellaneous activities. The City currently
visits a local branch once per month.
1. Please identify your branch locations within the City of La Quinta. Do all locations
provide night depository services?
2. Please describe the bank’s deposit requirements. How should the coin and currency
deposits be prepared? How should un-encoded check deposits be prepared?
3. How would the City order cash vault supplies? How is payment made for such supplies?
4. Please describe in detail the bank’s procedures for handling deposit adjustments. What
documentation on discrepancies does the bank provide?
5. Is the deposit adjustment documentation different from cash deposits and check
deposits? What is the minimum adjustment amount? How soon would support
documentation of a deposit discrepancy be provided to the City?
6. Please describe the bank’s returned item handling and notification procedures. Is an
automatic re-clear option available? How long does it take for returned items to be
sent to the City? Include any online tools available for this purpose.
7. What are the cut-off times for deposits at the bank’s local branch and at the bank’s
Processing Center to ensure same day credit? Where is the Processing Center/Cash
Vault located? Will the City deal directly with the Cash Vault on deposit adjustments
or with a local representative?
Tab H – Bill Concentration Service:
1. Does the bank have the capability to provide a bill concentration service? If so, please
describe the service. The City currently does not use Bill Concentration services nor
has large volume of bills for collection. Electronic payments are encouraged; however,
the City would like to know if the bank provides centralized bill payment processing
should it be needed in the future.
City of La Quinta
RFP Banking and Merchant Services * pg. 13
Tab I – Wire Transfers: The City currently transacts wire transfers on-line, initiating
approximately five (5) wires and book transfers a month and receiving approximately two (2)
incoming wires per month.
1. Please describe the bank’s on-line wire transfer capabilities. What is the deadline for
initiating wire transfers?
2. What safeguards and security measures does the bank have in place to protect the
City?
Tab J – Automated Clearing House (ACH) Service Requirements
ACH Direct Deposit of Payroll: The City utilizes direct deposit services for bi-weekly payroll
for the City. Approximately 95% of the 110 City’s employees take advantage of the direct
deposit service. Please address the following:
1. Describe the bank’s direct deposit services, including the software requirements and
transmission options available.
2. Discuss screening measures that the bank uses to minimize errors on files sent to the
bank. Describe the process and timing available for file/error correction.
3. Indicate the transmission deadlines for direct deposit ACH files, including date and
time when the bank needs the file from the City and when the funds are debited from
the City’s account.
4. Discuss any employee benefit programs for City employees and indicate if the bank
would be able to participate in City-hosted employee benefits presentations.
5. Is there direct support for file testing?
ACH Vendor Payments: The City would like to make payments electronically. Describe the
program used by the bank to facilitate these payments. The City currently uses Tyler Incode
10 for its financial software.
ACH Auto Debit: The bank must have the capability to accommodate an online bill collection
services.
Tab K – Payroll Tax Processing: Please describe the bank’s payroll tax withholding services
and its related costs. The City requires the ability to report and pay state and federal tax
withholdings automatically online or by telephone.
Tab L – State Activity/LAIF Transfers: The City transacts State of California Local Agency
Investment Fund (LAIF) transfers on a regular basis and receives State electronic payments.
1. Please describe the LAIF transfer process. Are the transfers done by telephone, email,
fax, wire transfer, etc.? How is the accuracy of transfers assured?
2. What is the charge per transfer to LAIF? From LAIF?
3. Does the bank have an office in Sacramento that maintains a direct DDA banking
relationship with the State Treasurer’s office and the State Controller’s office?
4. Is the bank an approved State of California depository?
5. What is the charge for the deposit of State electronic payments? State warrants?
6. What is the bank’s position on past issuance of IOU’s by the State of CA? Does the
bank accept IOU’s for deposit?
City of La Quinta
RFP Banking and Merchant Services * pg. 14
Tab M – On-line Bank Processes and Information Reporting: The City currently utilizes
a web-based on-line system to perform a variety of processes, such as placing stop payments
and accessing online balance reporting information for all accounts.
1. Please describe the banks on-line banking and information reporting system(s)
including a list of all services provided.
2. What are the current computer hardware and software specifications for most
effectively utilizing the bank’s on-line system?
3. At what time (Pacific Standard Time) is prior day information available?
4. Is the per item fee for prior day reporting based on the number of items reported or
accessed?
5. Can the reports be customized? Exported to Excel?
6. What types of security measures are in place? How is the assignment of user I.D.’s
and passwords managed?
7. What is the bank’s contingency plan for providing this information in the event of an
unexpected bank system problem or natural disaster?
8. Does the bank offer electronic delivery of statements, reports, and notices?
Tab N – Account Reconcilement: The City currently issues approximately 400 Accounts
Payable and Payroll checks monthly and utilizes Full Account Reconcilement with Positive Pay
services for its disbursement accounts.
1. Does the bank offer Full Account Reconcilement Services with Positive Pay? If so,
please describe the service including accepted methods for receiving the Positive Pay
data and the format specifications for that data.
2. Does the bank offer Teller Positive Pay and Payee Positive Pay?
3. How are the exception items under the Positive Pay reported to the City? What is the
procedure and timeline for paying or returning exception items?
4. How are manual checks issued by the City sent to the bank for inclusion in Positive
Pay?
5. Does the bank provide on-line check imaging for exception items?
6. Describe the bank’s check truncation service. Is on-line check imaging available for
paid items? Deposit slips? Bank correction advices?
7. Does the bank offer a CD-ROM imaging service? If so, please describe the service and
associated costs.
8. Describe the bank’s on-line stop payment, void, and cancellation services and features.
How long is a stop payment effective via any method available?
9. Describe how long online images are available for display and what type of images are
available.
Tab O – Daylight Overdraft Protection: The City currently requires daylight overdraft
protection. Sweep account services are currently not used but may be included in the response
if upon evaluation of services needs there is a benefit to resume using this service. The City
currently maintains an average of $1,000,000 in the bank and has both LAIF and CAMP
accounts for liquidity purposes.
1. Describe any issues, concerns, and charges associated with the use of daylight
overdraft facility.
2. Will the bank guarantee payment of all the items even if it results in the account being
overdrawn temporarily for the day?
City of La Quinta
RFP Banking and Merchant Services * pg. 15
Tab P – Merchant Bankcard: The City currently accepts Visa and MasterCard credit card
payments approximating $62,000.00 in collections per month, with transactions averaging at
approximately 500 per month. The City currently has three (3) merchant locations or I.D.s
accepting payment for the City for services. The City prefers a single point of contact for
technical issues, configuration changes, upgrades, maintenance, and troubleshooting for any
merchant bankcard issues. Current payments received are for business licenses, permits,
construction permits, wellnesses center classes and membership dues, merchandise from the
museum gift shop. The City does not collect any form of utility payments. Current credit card
terminals utilize EMV chip reader technology and are compatible with Canadian license exempt
RSS Standards, and are part 15 of the FCC rules.
1. Please describe the bank’s Merchant Bankcard and Point-of-Sale processing
capabilities.
2. Please describe your reporting methodology and how adjustments and charge backs
and other debit adjustments are netted from daily proceeds or debited from daily
proceeds or debited separately? Is the discount fee refunded when a charge back or
refund occurs? What is the rebuttal process?
3. When and how will the City receive funds for each day’s transactions? Is the settlement
by ACH or Fed wire? Are settlement amounts listed separately on the bank statement
or will they appear in one lump sum? Will the bank break out settlement amounts by
merchant location?
4. What is the cutoff time for card transactions?
5. The City has three (3) credit card terminals with third party vendor settlements
(Ingenico brand with chip reader technology). Can the bank supply the City with
additional terminals if needed? Does the bank have a preferred credit card third party
vendor for daily settlements?
6. Is the bankcard relationship managed by a separate unit of the bank, or by the Account
Relationship Manager? Please briefly describe the structure of this area.
7. When and how are the discount rate fees charged to the City? Can this fee be paid
through analysis? Is tiered pricing available?
8. Is reporting information available online? What is the fee associated with this service?
Is a “corporate level” view available to see all the merchant accounts?
9. What network will be used for front-end and back-end operations?
10. Please explain your rate increase policies. Can the rates be fixed for any period of time
during the City’s contract?
11. What payment gateway platforms are accepted or provided?
12. The following pertains to the associated discount rate and other applicable charges.
Please provide the following:
a. Visa Authorization Fee
b. MasterCard Authorization Fee
c. Monthly Service Fee
d. Monthly Statement Fee
e. Please list any and all other applicable fees that the City would be charged.
f. List any other credit cards accepted (Discover, American Express, etc.) and provide
information answering the questions in this section for such other services.
Tab Q – Purchasing Card: The City currently has a purchasing card program in place for
employees to make various types of purchases and incur expenses for City-related business.
The approximate annual spend of the program is estimated at $1,000,000 with an average
transaction size of $5,000 and 5 to 10 cards being issued. Online monitoring and
administrative management is preferred.
City of La Quinta
RFP Banking and Merchant Services * pg. 16
1. Does the bank offer a purchasing card service? If so, please describe the service.
2. Please detail all of the fees associated with the service and/or any rebate available
with the program.
3. How often are the statements and reports remitted to the City? Is the reporting
available on line?
4. Is there an interface available to download cardholder purchase information, either in
an Excel format or directly to the City’s accounting system?
5. Do you provide an online application to review/approve procurement card transactions
and to manage other aspects of the program?
6. Identify how fraud protection is identified, prevented, and monitored.
7. Describe if credit cards can be managed online? Including requesting additional cards,
editing purchasing limits, editing availability of vendors for each card, making online
payments, and any other online services available for the management of credit cards.
Tab R – City Disaster Preparedness Program:
1. Please describe any processes in place to assist the City in the event of a natural
disaster.
Tab S – Implementation Plan: As part of any conversion, the City requires an efficient
transition to the new bank or to enhanced services with its existing bank.
1. Please describe the overall plan the bank would coordinate to ensure such a
conversion.
2. Please detail all costs and the responsible party (bank or City) associated with the
conversion of all new services.
3. What size conversion allowance will the bank provide to the City? Please state a specific
dollar amount or identify those supplies, products, or services included.
4. Will the bank provide on-site training for City personnel for all the services selected?
How is the training typically structured?
5. The target implementation date is July 1, 2019.
Tab T – Service Enhancements: Based on the information provided in the RFP and your
firm’s knowledge of the public sector, please describe any services or technological
enhancements, not previously mentioned, that should be considered for further improving
effectiveness of the City’s treasury management operations.
Exhibits for Banking Services Submittals:
Tab U – Banking Services Bid Form: Complete the Bid Form with pricing information.
Tab V – Sample Account Analysis Statement and Users Guide:
Tab W – Relevant Cash Management Agreements:
Tab X – Financial Statements and Ratings: Provide the most recent audited financial
statements or annual report for the bank (a reference to electronic availability will suffice).
Also include the bank’s most current Standard and Poor’s, Moody’s, and/or Fitch credit ratings,
where available. A current IDC rating should also be provided.
City of La Quinta
RFP Banking and Merchant Services * pg. 17
SECTION VII
BID FORM- utilize AFP codes when applicable?
Tab U – Banking Services Bid Form: Please complete all items on this attachment. If the
bank does not or cannot provide the specific requested service, please indicate “no proposal”
and if appropriate, recommend an alternative service and include as a specified attachment.
Per unit cost x Estimated Monthly Unit Volume = Total Monthly Cost x 12 = Estimated Total
Annual Cost. Where fees vary for this formula, please indicate and provide an estimate of the
total annual cost. Volumes indicated represent average monthly activity. The City shall
provide client analysis statements and responses shall be based on the analysis from April
2018, which most closely resembles average city banking service needs.
Item Per
Unit
Cost
Estimated
Monthly Unit
Volume
Total
Monthly
Cost
Estimated
Total
Annual Cost
Balance & Compensation
Information Services
Deposit Insurance-Bank Assessment
General Account Services
Account Maintenance
ZBA Depository + Master Maint
ZBA Subsidiary Account Maint
Debits Posted-Other
Credits Posted-Other
Paper Deposit Statement Mailed
Depository Services
Banking Center Deposit-CA
Vault Deposit-CA
Dep Conditioning-Surchg-Vault
Curr/Coin Dep/$100 Vault-CA
Vault Deposit-Extended Hours-CA
CKS Dep Un-Encoded Items
Returns-Chargeback
3rd Party Courier-Vault
Mail Notification-Receipt-Vault
Deposit Correction-Cash
Deposit Correction-Non Cash
Paper Disbursement Services
ARP PPay Maint-No Recon
General Checks Paid Truncated
NSF Items Paid/Returned
Payee Positive Pay Maint
Payee Positive Pay-Issue Match
City of La Quinta
RFP Banking and Merchant Services * pg. 18
Banking Services Bid Form
Bank Name: __________________________________________
Item Per
Unit
Cost
Estimated
Monthly
Unit Volume
Total
Monthly
Cost
Estimated
Total
Annual
Cost
Paper Disbursement Services
(Con’t.)
Positive Pay Exceptions
Stop Pay Automated-12 months
ARP PPay No Recon Input Item
CD Rom Maintenance
Image Maintenance
Image Retrieval CPO
On Line Image Retrieval CPO
CD Rom Disk
CD Rom per Image
ARP Positive Pay Notif
ARP Issue Posted Notif
ARP Issue Recd Notif
ARP PPay Input File Trans
Paper Disb Recon Services
ARP Void Cancel Items
General ACH Services
ACH Monthly Maintenance (w)
ACH Corporate On Us Credits
ACH Corporate Off Us Credits
Consumer Credit On Us Credits (w)
Consumer Credit Off Us Credits (w)
PC Tax Payment
ACH Blocks Auth Instructions
ACH Blocks Auth Maintenance
City of La Quinta
RFP Banking and Merchant Services * pg. 19
Banking Services Bid Form
Bank Name: _______________________________________
Item Per
Unit
Cost
Estimated
Monthly
Unit Volume
Total
Monthly
Cost
Estimated
Total
Annual
Cost
General ACH Services (Con’t.)
ACH Blocks Auth Add-Change
ACH Debit Received Item (w)
ACH Credit Received Item (w)
ACH Return Item (w)
ACH Input-Transmission (w)
ACH Delete/Reversal (w)
ACH Notif of Change (NOC)
ACH Optional Reports-Electronic
ACH Optional Reports-Fax (w)
ACH Optional Reports-Mail (w)
ACH Standard Reports-Mail (w)
ACH Standard Reports-Electronic
ACH Standard Reports-Fax (w)
Wire & Other Funds Transfer Svc
GP Mthly Maint Basic
Electronic Wire Out-Domestic
Book Credit
Outgoing Wire Confirm Notif
Wire Payee Advising
GPS Confirms
Pend Wire Approval Notif
Incoming Wire Notif-Email
GP Cust Mant Temp Storage
City of La Quinta
RFP Banking and Merchant Services * pg. 20
Banking Service Bid Form
Bank Name: ____________________________________
Item Per
Unit
Cost
Estimated
Monthly Unit
Volume
Total
Monthly
Cost
Estimated
Total
Annual
Cost
Wire & Other Funds Trans Svc
(Con’t.)
Incoming Domestic Wire
Wire Advice-Phone
On Line Information Services
Previous Day Account Fee
Previous Day Standard Item
Previous Day Maintenance
Email Notification Schedule
Online Subscription
Per Image Access
Service Enhancements/Other
Remote Deposit Services
Image Cash Letter Deposits
Totals – Monthly and Annual Fees
Other Information
Earnings Credit Rate for August 2018
Uncollected Funds Rate (%)015
Overdraft Rate (%)
Fixed Pricing Guarantee (# of Years)
Bank Information
Name of Contact Bank Officer
Signature of Authorized Bank Officer
Bank Officer’s Telephone Number
Bank Officer’s E-mail Address
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 _________________________, a
_________________________ [insert type of business entity, e.g. sole
proprietorship, California Limited Liability Corporation, etc.] (“Contracting
Party”). The parties hereto agree as follows:
1. SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions
of this Agreement, Contracting Party shall provide those services related to
_________________________________, Project No. ____NA___________,
as specified in the “Scope of Services” attached hereto as “Exhibit A” and
incorporated herein by this reference (the “Services”). Contracting Party
represents and warrants that Contracting Party is a provider of first-class
work and/or services and Contracting Party is experienced in performing the
Services contemplated herein and, in light of such status and experience,
Contracting Party covenants that it shall follow industry standards in
performing the Services required hereunder, and that all materials, if any,
will be of good quality, fit for the purpose intended. For purposes of this
Agreement, the phrase “industry 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 Wage and Hour Compliance, Contracting Party shall comply with
applicable Federal, State, and local wage and hour laws.
1.4 Licenses, Permits, Fees and Assessments. Except as otherwise
specified herein, Contracting Party 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. Contracting Party 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. Contracting Party 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
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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. Contracting Party shall be responsible for
all subcontractors’ compliance with this Section.
1.5 Familiarity with Work. By executing this Agreement, Contracting
Party warrants that (a) it has thoroughly investigated and considered the
Services to be 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 Contracting Party discover any latent or unknown conditions
materially differing from those inherent in the Services or as represented by
City, Contracting Party shall immediately inform City of such fact and shall
not proceed except at Contracting Party’s risk until written instructions are
received from the Contract Officer (as defined in Section 4.2 hereof).
1.6 Standard of Care. Contracting Party acknowledges and
understands that the Services contracted for under this Agreement require
specialized skills and abilities and that, consistent with this understanding,
Contracting Party’s work will be held to an industry standard of quality and
workmanship. Consistent with Section 1.5 hereinabove, Contracting Party
represents to City that it holds the necessary skills and abilities to satisfy the
industry standard of quality as set forth in this Agreement. Contracting
Party shall adopt reasonable methods during the life of this Agreement to
furnish continuous protection to the Services performed by Contracting
Party, 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 Contracting Party shall not relieve Contracting
Party 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 Contracting Party.
1.7 Additional Services. In accordance with the terms and
conditions of this Agreement, Contracting Party 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
Contracting Party shall not be required to perform any Additional Services
without compensation. Contracting Party shall not perform any Additional
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Services until receiving prior written authorization (in the form of a written
change order if Contracting Party is a contractor performing the Services)
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 Contracting Party. It is
expressly understood by Contracting Party 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 Contracting Party 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 Contract Officer. Compensation for
properly authorized Additional Services shall be made in accordance with
Section 2.3 of this Agreement.
1.8 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. COMPENSATION.
2.1 Contract Sum. For the Services rendered pursuant to this
Agreement, Contracting Party shall be compensated in accordance with
“Exhibit B” (the “Schedule of Compensation”) in a total amount not to
exceed ______________________________ Dollars ($____________)
(the “Contract Sum”), except as provided in Section 1.7. 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
Contracting Party’s rate schedule, but not exceeding the Contract Sum, or
such other reasonable methods as may be specified in the Schedule of
Compensation. The Contract Sum shall include the attendance of
Contracting Party at all project meetings reasonably deemed necessary by
City; Contracting Party 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
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compensation set forth in the Schedule of Compensation, Contracting Party’s
overall compensation shall not exceed the Contract Sum, except as provided
in Section 1.7 of this Agreement.
2.2 Method of Billing & Payment. Any month in which Contracting
Party wishes to receive payment, Contracting Party 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 Contracting Party specifying that the payment requested is for
Services performed in accordance with the terms of this Agreement. Upon
approval in writing by the Contract Officer and subject to retention pursuant
to Section 8.3, City will pay Contracting Party 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.
2.3 Compensation for Additional Services. Additional Services
approved in advance by the Contract Officer pursuant to Section 1.7 of this
Agreement shall be paid for in an amount agreed to in writing by both City
and Contracting Party in advance of the Additional Services being rendered
by Contracting Party. 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, the City Manager,
or Department Director, depending upon City laws, regulations, rules and
procedures concerning public contracting. Under no circumstances shall
Contracting Party receive compensation for any Additional Services unless
prior written approval for the Additional Services is obtained from the
Contract Officer pursuant to Section 1.7 of this Agreement.
3. 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.
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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 Contracting
Party, 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 Contracting Party 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 the Contract Officer’s 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
Contracting Party to additional compensation in excess of the Contract Sum.
3.4 Term. Unless earlier terminated in accordance with the
provisions in Article 8.0 of this Agreement, the term of this agreement shall
commence on _________, ____, 20__ and terminate on ____________,
___ 20___ (“Initial Term”). This Agreement may be extended for _____
additional year(s) upon mutual agreement by both parties (“Extended
Term”).
4. COORDINATION OF WORK.
4.1 Representative of Contracting Party. The following principals of
Contracting Party (“Principals”) are hereby designated as being the principals
and representatives of Contracting Party authorized to act in its behalf with
respect to the Services specified herein and make all decisions in connection
therewith:
(a)
E-mail:
(b)
E-mail:
(c)
E-mail:
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
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be responsible during the term of this Agreement for directing all activities of
Contracting Party and devoting sufficient time to personally supervise the
Services hereunder. For purposes of this Agreement, the foregoing
Principals may not be changed by Contracting Party 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
____________________ or such other person as may be designated in
writing by the City Manager of City. It shall be Contracting Party’s
responsibility to assure that the Contract Officer is kept informed of the
progress of the performance of the Services, and Contracting Party 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 Against Subcontracting or Assignment. The
experience, knowledge, capability, and reputation of Contracting Party, its
principals, and its employees were a substantial inducement for City to enter
into this Agreement. Except as set forth in this Agreement, Contracting
Party shall not contract or subcontract 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 Contracting Party, taking all
transfers into account on a cumulative basis. Any attempted or purported
assignment or contracting or subcontracting by Contracting Party without
City’s express written approval shall be null, void, and of no effect. No
approved transfer shall release Contracting Party 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
Contracting Party, 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 Contracting
Party’s employees, servants, representatives, or agents, or in fixing their
number or hours of service. Contracting Party shall perform all Services
required herein as an independent contractor of City and shall remain at all
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times as to City a wholly independent contractor with only such obligations
as are consistent with that role. Contracting Party 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 Contracting Party in its business or otherwise
or a joint venture or a member of any joint enterprise with Contracting
Party. Contracting Party shall have no power to incur any debt, obligation,
or liability on behalf of City. Contracting Party 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 Contracting Party as
provided in this Agreement, City shall not pay salaries, wages, or other
compensation to Contracting Party for performing the Services hereunder for
City. City shall not be liable for compensation or indemnification to
Contracting Party 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, Contracting Party 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. Contracting Party agrees to pay all required taxes on
amounts paid to Contracting Party 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. Contracting Party shall fully comply
with the workers’ compensation laws regarding Contracting Party and
Contracting Party’s employees. Contracting Party further agrees to
indemnify and hold City harmless from any failure of Contracting Party to
comply with applicable workers’ compensation laws. City shall have the
right to offset against the amount of any payment due to Contracting Party
under this Agreement any amount due to City from Contracting Party as a
result of Contracting Party’s failure to promptly pay to City any
reimbursement or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Contracting Party
represents that it employs or will employ at its own expense all personnel
required for the satisfactory performance of any and all of the Services set
forth herein. Contracting Party represents that the Services required herein
will be performed by Contracting Party 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.
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4.6 City Cooperation. City shall provide Contracting Party 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 Contracting Party only from or through action by City.
5. INSURANCE.
5.1 Insurance. Prior to the beginning of any Services under this
Agreement and throughout the duration of the term of this Agreement,
Contracting Party 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.
5.2 Proof of Insurance. Contracting Party shall provide Certificate of
Insurance to Agency along with all required endorsements. Certificate of
Insurance and endorsements must be approved by Agency’s Risk Manager
prior to commencement of performance.
6. INDEMNIFICATION.
6.1 Indemnification. To the fullest extent permitted by law,
Contracting Party 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. RECORDS AND REPORTS.
7.1 Reports. Contracting Party shall periodically prepare and submit
to the Contract Officer such reports concerning Contracting Party’s
performance of the Services required by this Agreement as the Contract
Officer shall require. Contracting Party hereby acknowledges that City is
greatly concerned about the cost of the Services to be performed pursuant
to this Agreement. For this reason, Contracting Party agrees that if
Contracting Party 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 Contracting Party is providing design
services, the cost of the project being designed, Contracting Party shall
promptly notify the Contract Officer of said fact, circumstance, technique, or
event and the estimated increased or decreased cost related thereto and, if
Contracting Party is providing design services, the estimated increased or
decreased cost estimate for the project being designed.
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7.2 Records. Contracting Party 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 Contracting Party’s business, custody of the Books and
Records may be given to City, and access shall be provided by Contracting
Party’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
Contracting Party, 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
Contracting Party 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 Contracting Party will be at City’s sole risk and without
liability to Contracting Party, and Contracting Party’s guarantee and
warranties shall not extend to such use, revise, or assignment. Contracting
Party may retain copies of such Documents and Materials for its own use.
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Contracting Party 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
Contracting Party fails to secure such assignment, Contracting Party shall
indemnify City for all damages resulting therefrom.
7.4 In the event City or any person, firm, or corporation authorized
by City reuses said Documents and Materials without written verification or
adaptation by Contracting Party 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 Contracting
Party 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.
7.5 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. Contracting
Party 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. Contracting
Party represents and warrants that Contracting Party has the legal right to
license any and all of the Documents and Materials. Contracting Party
makes no such representation and warranty in regard to the Documents and
Materials which were prepared by design professionals other than
Contracting Party or provided to Contracting Party 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.
7.6 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. Contracting Party 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.
7.7 Confidential or Personal Identifying Information. Contracting
Party covenants that all City data, data lists, trade secrets, documents with
personal identifying information, documents that are not public records,
draft documents, discussion notes, or other information, if any, developed or
received by Contracting Party or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Contracting Party to
any person or entity without prior written authorization by City or unless
required by law. City shall grant authorization for disclosure if required by
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any lawful administrative or legal proceeding, court order, or similar
directive with the force of law. All City data, data lists, trade secrets,
documents with personal identifying information, documents that are not
public records, draft documents, discussions, or other information shall be
returned to City upon the termination or expiration of this Agreement.
Contracting Party’s covenant under this section shall survive the termination
or expiration of this Agreement.
8. 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 Contracting
Party 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 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 this Article 8.0. During the period of time that
Contracting Party 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 Contracting Party sufficient funds to compensate City for any losses,
costs, liabilities, or damages it reasonably believes were suffered by City due
to the default of Contracting Party in the performance of the Services
required by this Agreement.
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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 Contracting Party 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 Contracting Party. 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 Rights 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 for termination for cause. City reserves the right to
terminate this Agreement at any time, with or without cause, upon thirty
(30) days’ written notice to Contracting Party. Upon receipt of any notice of
termination, Contracting Party shall immediately cease all Services
hereunder except such as may be specifically approved by the Contract
Officer. Contracting Party 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 amounts held as a retention pursuant to this Agreement.
8.8 Termination for Default of Contracting Party. If termination is
due to the failure of Contracting Party to fulfill its obligations under this
Agreement, Contracting Party shall vacate any City-owned property which
Contracting Party is permitted to occupy hereunder and 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 Contracting
Party 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),
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and City may withhold any payments to Contracting Party for the purpose of
setoff or partial payment of the amounts owed City.
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. 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 Contracting Party, or any successor in interest, in the event or any
default or breach by City or for any amount which may become due to
Contracting Party or to its successor, or for breach of any obligation of the
terms of this Agreement.
9.2 Conflict of Interest. Contracting Party covenants that neither it,
nor any officer or principal of it, has or shall acquire any interest, directly or
indirectly, which would conflict in any manner with the interests of City or
which would in any way hinder Contracting Party’s performance of the
Services under this Agreement. Contracting Party 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. Contracting Party
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
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association in which he is, directly or indirectly, interested, in violation of
any State statute or regulation. Contracting Party 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. Contracting Party 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. Contracting Party 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. 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: [insert Contract Officer –
Director decides]
78-495 Calle Tampico
La Quinta, California 92253
To Contracting Party:
10.2 Interpretation. 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.
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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
Contracting Party 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, Contracting Party 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 Contracting Party without
further acknowledgment of the parties.
10.9 No Third Party 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
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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]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the dates stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
FRANK J. SPEVACEK, City Manager
City of La Quinta, California
Dated:
CONTRACTING PARTY:
By:
Name:
Title:
ATTEST:
MONIKA RADEVA, City Clerk
La Quinta, California
By:
Name:
Title:
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
(DIRECTOR TO DETERMINE IF THE FOLLOWING IS TO BE FOLLOWED OR
DELETED:)
NOTE: (1) TWO SIGNATURES ARE REQUIRED IF A CORPORATION’S
BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE STATE THAT TWO SIGNATURES ARE REQUIRED
ON CONTRACTS, AGREEMENTS, AMENDMENTS, CHANGE ORDERS, ETC.
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(2)CONTRACTING PARTY’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 CONTRACTING PARTY’S
BUSINESS ENTITY.
Last revised summer 2017
Exhibit A
Scope of Services
1. Services to be Provided:
[TO BE PROVIDED BY STAFF (include location of work)]
2. Performance Standards:
[TO BE PROVIDED BY STAFF]
OR
[See Attached]
ADDENDUM TO AGREEMENT
Re: Scope of Services
If the Scope of Services include construction, alteration, demolition,
installation, repair, or maintenance affecting real property or structures or
improvements of any kind appurtenant to real property, the following apply:
1. Prevailing Wage Compliance. If Contracting Party is a contractor
performing public works and maintenance projects, as described in this
Section 1.3, Contracting Party shall comply with applicable Federal, State,
and local laws. Contracting Party is aware of the requirements of California
Labor Code Sections 1720, et seq., and 1770, et seq., as well as California
Code of Regulations, Title 8, Sections 16000, et seq., (collectively, the
“Prevailing Wage Laws”), and La Quinta Municipal Code Section 3.12.040,
which require the payment of prevailing wage rates and the performance of
other requirements on “Public works” and “Maintenance” projects. If the
Services are being performed as part of an applicable “Public works” or
“Maintenance” project, as defined by the Prevailing Wage Laws, and if
construction work over twenty-five thousand dollars ($25,000.00) and/or
alterations, demolition, repair or maintenance work over fifteen thousand
dollars ($15,000.00) is entered into or extended on or after January 1, 2015
by this Agreement,, Contracting Party agrees to fully comply with such
Prevailing Wage Laws including, but not limited to, requirements related to
the maintenance of payroll records and the employment of apprentices.
Pursuant to California Labor Code Section 1725.5, no contractor or
subcontractor may be awarded a contract for public work on a “Public works”
project unless registered with the California Department of Industrial
Relations (“DIR”) at the time the contract is awarded. If the Services are
being performed as part of an applicable “Public works” or “Maintenance”
project, as defined by the Prevailing Wage Laws, this project is subject to
compliance monitoring and enforcement by the DIR. Contracting Party will
maintain and will require all subcontractors to maintain valid and current
DIR Public Works contractor registration during the term of this Agreement.
Contracting Party shall notify City in writing immediately, and in no case
more than twenty-four (24) hours, after receiving any information that
Contracting Party’s or any of its subcontractor’s DIR registration status has
been suspended, revoked, expired, or otherwise changed. It is understood
that it is the responsibility of Contracting Party to determine the correct
salary scale. Contracting Party shall make copies of the prevailing rates of
per diem wages for each craft, classification, or type of worker needed to
execute the Services available to interested parties upon request, and shall
post copies at Contracting Party’s principal place of business and at the
project site, if any. The statutory penalties for failure to pay prevailing wage
or to comply with State wage and hour laws will be enforced. Contracting
Party must forfeit to City TWENTY FIVE DOLLARS ($25.00) per day for each
worker who works in excess of the minimum working hours when
Contracting Party does not pay overtime. In accordance with the provisions
of Labor Code Sections 1810 et seq., eight (8) hours is the legal working
day. Contracting Party also shall comply with State law requirements to
maintain payroll records and shall provide for certified records and
inspection of records as required by California Labor Code Section 1770 et
seq., including Section 1776. In addition to the other indemnities provided
under this Agreement, Contracting Party shall defend (with counsel selected
by City), indemnify, and hold City, its elected officials, officers, employees,
and agents free and harmless from any claim or liability arising out of any
failure or alleged failure to comply with the Prevailing Wage Laws. It is
agreed by the parties that, in connection with performance of the Services,
including, without limitation, any and all “Public works” (as defined by the
Prevailing Wage Laws), Contracting Party shall bear all risks of payment or
non-payment of prevailing wages under California law and/or the
implementation of Labor Code Section 1781, as the same may be amended
from time to time, and/or any other similar law. Contracting Party
acknowledges and agrees that it shall be independently responsible for
reviewing the applicable laws and regulations and effectuating compliance
with such laws. Contracting Party shall require the same of all
subcontractors.
2. Retention. Payments shall be made in accordance with the
provisions of Article 2.0 of the Agreement. In accordance with said Sections,
City shall pay Contracting Party a sum based upon ninety-five percent (95%)
of the Contract Sum apportionment of the labor and materials incorporated
into the Services under this Agreement during the month covered by said
invoice. The remaining five percent (5%) thereof shall be retained as
performance security to be paid to Contracting Party within sixty (60) days
after final acceptance of the Services by the City Council of City, after
Contracting Party has furnished City with a full release of all undisputed
payments under this Agreement, if required by City. In the event there are
any claims specifically excluded by Contracting Party from the operation of
the release, City may retain proceeds (per Public Contract Code § 7107) of
up to one hundred fifty percent (150%) of the amount in dispute. City’s
failure to deduct or withhold shall not affect Contracting Party’s obligations
under the Agreement.
3. Utility Relocation. City is responsible for removal, relocation, or
protection of existing main or trunkline utilities to the extent such utilities
were not identified in the invitation for bids or specifications. City shall
reimburse Contracting Party for any costs incurred in locating, repairing
damage not caused by Contracting Party, and removing or relocating such
unidentified utility facilities. Contracting Party shall not be assessed
liquidated damages for delay arising from the removal or relocation of such
unidentified utility facilities.
4. Trenches or Excavations. Pursuant to California Public Contract
Code Section 7104, in the event the work included in this Agreement
requires excavations more than four (4) feet in depth, the following shall
apply:
(a) Contracting Party shall promptly, and before the following
conditions are disturbed, notify City, in writing, of any: (1) material that
Contracting Party believes may be material that is hazardous waste, as
defined in Section 25117 of the Health and Safety Code, that is required to
be removed to a Class I, Class II, or Class III disposal site in accordance
with provisions of existing law; (2) subsurface or latent physical conditions
at the site different from those indicated by information about the site made
available to bidders prior to the deadline for submitting bids; or (3) unknown
physical conditions at the site of any unusual nature, different materially
from those ordinarily encountered and generally recognized as inherent in
work of the character provided for in the Agreement.
(b) City shall promptly investigate the conditions, and if it
finds that the conditions do materially so differ, or do involve hazardous
waste, and cause a decrease or increase in Contracting Party’s cost of, or
the time required for, performance of any part of the work shall issue a
change order per Section 1.8 of the Agreement.
(c) in the event that a dispute arises between City and
Contracting Party whether the conditions materially differ, or involve
hazardous waste, or cause a decrease or increase in Contracting Party’s cost
of, or time required for, performance of any part of the work, Contracting
Party shall not be excused from any scheduled completion date provided for
by this Agreement, but shall proceed with all work to be performed under
this Agreement. Contracting Party shall retain any and all rights provided
either by contract or by law which pertain to the resolution of disputes and
protests between the contracting Parties.
5. Safety. Contracting Party shall execute and maintain its work so
as to avoid injury or damage to any person or property. In carrying out the
Services, Contracting Party shall at all times be in compliance with all
applicable local, state, and federal laws, rules and regulations, and shall
exercise all necessary precautions for the safety of employees appropriate to
the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be
limited to: (A) adequate life protection and lifesaving equipment and
procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders,
bridges, gang planks, confined space procedures, trenching and shoring,
equipment and other safety devices, equipment and wearing apparel as are
necessary or lawfully required to prevent accidents or injuries; and
(C) adequate facilities for the proper inspection and maintenance of all
safety measures.
6. Liquidated Damages. Since the determination of actual damages
for any delay in performance of the Agreement would be extremely difficult
or impractical to determine in the event of a breach of this Agreement,
Contracting Party shall be liable for and shall pay to City the sum of One
Thousand dollars ($1,000.00) as liquidated damages for each working day of
delay in the performance of any of the Services required hereunder, as
specified in the Schedule of Performance. In addition, liquidated damages
may be assessed for failure to comply with the emergency call out
requirements, if any, described in the Scope of Services. City may withhold
from any moneys payable on account of the Services performed by
Contracting Party any accrued liquidated damages.
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for
in Section 2.3 of this Agreement, the maximum total compensation to be
paid to Contracting Party under this Agreement is
_______________________($_____________) (“Contract Sum”). The
Contract Sum shall be paid to Contracting Party in installment payments
made on a monthly basis and in an amount identified in Contracting Party’s
schedule of compensation attached hereto for the work tasks performed and
properly invoiced by Contracting Party in conformance with Section 2.2 of
this Agreement.
[insert Contracting Party’s schedule of compensation]
Exhibit C
Schedule of Performance
Contracting Party shall complete all services identified in the Scope of
Services, Exhibit A of this Agreement, in accordance with the Project
Schedule below [or… attached hereto and incorporated herein by this
reference].
[insert Project Schedule]
Exhibit D
Special Requirements
[insert Special Requirements or indicate, “None” if there are none]
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)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers’ Compensation
(per statutory requirements)
Must include the following endorsements:
Workers Compensation with Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if
applicable
Contracting Party 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 Contracting Party’s acts or omissions
rising out of or related to Contracting Party’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
Contracting Party’s performance hereunder and neither City nor its insurers
shall be required to contribute to any such loss. An endorsement evidencing
the foregoing and naming the City and its officers and employees as
additional insured (on the Commercial General Liability policy only) must be
submitted concurrently with the execution of this Agreement and approved
by City prior to commencement of the services hereunder.
Contracting Party 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 Contracting
Party, its officers, any person directly or indirectly employed by Contracting
Party, any subcontractor or agent, or anyone for whose acts any of them
may be liable, arising directly or indirectly out of or related to Contracting
Party’s performance under this Agreement. If Contracting Party or
Contracting Party’s employees will use personal autos in any way on this
project, Contracting Party 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 primary for losses arising out
of Contracting Party’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 Contracting Party 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.
Contracting Party 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.
Contracting Party 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, Contracting Party 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 Contracting Party’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
Contracting Party 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 Contracting Party to stop work under this Agreement
and/or withhold any payment(s) which become due to Contracting Party
hereunder until Contracting Party 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 Contracting Party’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 Contracting Party may
be held responsible for payments of damages to persons or property
resulting from Contracting Party’s or its subcontractors’ performance of work
under this Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage
by Contracting Party. Contracting Party and City agree to the following with
respect to insurance provided by Contracting Party:
1. Contracting Party 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. Contracting Party
also agrees to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this
Agreement shall prohibit Contracting Party, or Contracting Party’s
employees, or agents, from waiving the right of subrogation prior to a loss.
Contracting Party 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 Contracting Party
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.
Contracting Party 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 Contracting Party’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 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 Contracting Party or deducted from
sums due Contracting Party, at City option.
8. It is acknowledged by the parties of this agreement that all
insurance coverage required to be provided by Contracting Party 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. Contracting Party agrees to ensure that subcontractors, and any
other party involved with the project that is brought onto or involved in the
project by Contracting Party, provide the same minimum insurance coverage
required of Contracting Party. Contracting Party 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. Contracting Party agrees that upon request, all agreements with
subcontractors and others engaged in the project will be submitted to City
for review.
10. Contracting Party 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 Contracting Party’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 Contracting Party, 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 Contracting Party ninety (90) days advance written notice of such
change. If such change results in substantial additional cost to the
Contracting Party, 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.
13. Contracting Party acknowledges and agrees that any actual or
alleged failure on the part of City to inform Contracting Party 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. Contracting Party 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. Contracting Party 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 Contracting Party’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 Contracting Party under this agreement.
Contracting Party 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. Contracting Party 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 Contracting Party 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 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. Contracting Party agrees to provide immediate notice to City of
any claim or loss against Contracting Party 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.
Exhibit F
Indemnification
F.1 Indemnity for the Benefit of City.
a. Indemnification for Professional Liability. When the law
establishes a professional standard of care for Contracting Party’s Services,
to the fullest extent permitted by law, Contracting Party 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 Contracting Party 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 caused in whole or in part by any negligent or wrongful act,
error or omission of Contracting Party, its officers, agents, employees or
subcontractors (or any entity or individual that Contracting Party shall bear
the legal liability thereof) in the performance of professional services under
this agreement. With respect to the design of public improvements, the
Contracting Party 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 Contracting Party.
b. Indemnification for Other Than Professional Liability. Other
than in the performance of professional services and to the full extent
permitted by law, Contracting Party 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 Contracting Party or by any individual or entity for which
Contracting Party is legally liable, including but not limited to officers,
agents, employees, or subcontractors of Contracting Party.
c. Indemnity Provisions for Contracts Related to Construction
(Limitation on Indemnity). Without affecting the rights of City under any
provision of this agreement, Contracting Party 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 Contracting Party will be for that
entire portion or percentage of liability not attributable to the active
negligence of City.
d. Indemnification Provision for Design Professionals.
1. Applicability of this Section F.1(d). Notwithstanding
Section F.1(a) hereinabove, the following indemnification provision shall
apply to a Contracting Party who constitutes a “design professional” as the
term is defined in paragraph 3 below.
2. Scope of Indemnification. When the law establishes a
professional standard of care for Contracting Party’s Services, to the fullest
extent permitted by law, Contracting Party shall indemnify and hold
harmless City and any and all of its officials, employees, and agents
(“Indemnified Parties”) from and against any and all losses, liabilities of
every kind, nature, and description, damages, injury (including, without
limitation, injury to or death of an employee of Contracting Party or of any
subcontractor), costs and expenses, including, without limitation, incidental
and consequential damages, court costs, reimbursement of 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 caused by any negligent or wrongful act, error or omission of
Contracting Party, its officers, agents, employees or subcontractors (or any
entity or individual that Contracting Party shall bear the legal liability
thereof) in the performance of professional services under this agreement.
With respect to the design of public improvements, the Contracting Party
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 Contracting Party..
3. Design Professional Defined. As used in this
Section F.1(d), 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.
F.2 Obligation to Secure Indemnification Provisions.
Contracting Party agrees to obtain executed indemnity agreements with
provisions identical to those set forth herein this Exhibit F, as applicable to
the Contracting Party, from each and every subcontractor or any other
person or entity involved by, for, with or on behalf of Contracting Party in
the performance of this Agreement. In the event Contracting Party fails to
obtain such indemnity obligations from others as required herein,
Contracting Party 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 obligations to indemnify and defend City as
set forth in this Agreement are binding on the successors, assigns or heirs of
Contracting Party and shall survive the termination of this Agreement.