RFP - Document Scanning & Quality Control Services
REQUEST FOR PROPOSALS
DOCUMENT SCANNING
AND
QUALITY CONTROL
SERVICES
DUE DATE:
JULY 7, 2017 AT 4:00 P.M.
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 2 of 34
REQUEST FOR PROPOSALS
PROJECT TITLE: Document Scanning and Quality Control Services
DUE DATE: July 7, 2017 at 4:00 p.m.
RELEASE DATE: June 19, 2017
REQUESTING DEPARTMENT: City Clerk’ Office
To obtain a Request for Proposal (RFP) packet please contact Monika Radeva, Deputy
City Clerk, at (760) 777 – 7035 or MRadeva@La-Quinta.org. Prior to releasing the RFP
packet, your contact information will be added to a registration list so that you may be
notified by e-mail should there be an addendum to this RFP.
SUBMISSION REQUIREMENTS
Proposals can be submitted via e-mail, hand delivery, or mail. All proposals must bear
original or electronic signatures.
Submit three (3) paper original in a sealed envelope or e-mail one (1) electronic
original to the following:
Paper Original Response to RFP Electronic Response to RFP
City of La Quinta Attn: Monika Radeva
Attn: Monika Radeva E-mail address: MRadeva@La-Quinta.org
78495 Calle Tampico E-mail subject line: RFP – SCANNING SERVICES
La Quinta, CA 92253
RE: RFP – SCANNING SERVICES
SUBMISSION RESTRICTIONS
All proposals must be submitted in writing; no oral, facsimile, or telephone proposals
or modifications will be considered. Proposals received after the due date and time
will be returned unopened.
QUESTIONS or REQUESTS FOR CLARIFICATIONS
Any requests for clarification or other questions concerning this RFP must be
submitted in writing by June 26, 2017; and sent via e-mail to the e-mail address
below:
Monika Radeva, Deputy City Clerk: MRadeva@La-Quinta.org
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 3 of 34
INTRODUCTION
The City of La Quinta has two (2) repositories for scanned records:
(1) Laserfiche
(2) Internal Drives:
a) “J” drive for Public Works documents and plans
b) “U” drive for Building documents and plans
For more than a decade, the City has been steadily scanning, in house and through
third-party contract services, current and historic records into these repositories. This
multi-year project scope consists of scanning records in hundreds of file boxes and
plan rolls.
The City desires to procure contract services for some or all of its document scanning
needs and for quality control services of the scanned documents starting in fiscal year
2017/18 (July 1 through June 30). Through this RFP, the City seeks a contractor that
can provide the highest quality product at the most affordable price. The City
anticipates a partnership spanning multiple years with the selected contractor.
SCOPE OF SERVICES
Some of the file types to be scanned will consist of:
Building Permits
Building Plans
Planning Case Files
Engineering Plans
Encroachment Permits
Capital Improvement Projects
Code Compliance Permits
Specialized Studies
File folders may contain flat and folded documents of varying sizes from 6” x 9” to 36”
x 48”, and plan rolls will vary in size from under an inch to 12” or more in diameter.
Proposers may assume that all paper records are in good condition.
The work will commence when an agreement is fully executed. The City reserves the
right to extend the agreement for up to two (2) additional three (3) year terms, and
increase or decrease the budgeted amount for the additional terms, which the
scanning company may accept or decline.
The City desires the option to destroy some or all original records scanned. In order to
do so, the quality of scanned documents and the diligence of quality control must be
superior.
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 4 of 34
Prior to releasing each box/roll of documents for scanning, the City will prepare each
file by removing duplicates and non-records, organizing the documents in the desired
scanning order, creating a manifest, and providing indexing and Optical Character
Recognition (OCR) instructions.
PROPOSAL FORMAT
Firms are encouraged to keep their proposals brief and relevant to the specific
information requested herein. Proposals should be straightforward, concise, and
provide “layman” explanations of technical terms that are used.
Present the proposals in a format and order that corresponds to the numbering and
lettering contained herein with minimal reference to supporting documentation so that
the proposals can be accurately compared. All proposals should include the following:
I. Cover Letter
Signed by an official authorized to bind the firm with name, address, phone number,
and e-mail address of firm’s contract person, location of firm’s main office, location of
the office that would service this project, a validity statement stating that all
information and pricing provided in the proposal is valid for at least ninety (90) days,
and a statement that any individual who will perform work for the City of La Quinta is
free of any conflict of interest. Records may not leave the United States.
II. Firms Background, Qualifications, and Experience, including the following:
1. Number of years in business
2. Taxpayer identification number
3. Number of years scanning and indexing for government agencies
4. Resumes of the Project Manager and key personnel who will be responsible for
performance of any agreement resulting from this RFP
5. Firm ownership and if incorporated, the state in which the firm is incorporated
and the date of incorporation
6. If the firm is a subsidiary of a parent company, identify the parent company
III. References of California government agencies (preferably cities utilizing)
Laserfiche) for similar projects within the last three (3) years, which shall
include:
1. Client name, client project manager, telephone number and e-mail address
2. Project description
3. Project start date, and end date
4. Staff assigned to each project by the firm
5. Discuss final outcome
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 5 of 34
IV. Disclosures
Disclosure of any alleged significant prior or ongoing agreement failure, any civil or
criminal litigation or investigation pending, which involved the proposer or in which
the proposer has been judged guilty or liable within the last five years. If there is no
information to disclose, proposer must affirmatively state there is no negative history.
V. Explanation of methodology
VI. Description of proposer’s warranty / guarantee of work product
VII. Completed Pricing Chart (Attachment 1)
VIII. List of complementary services offered by proposer along with corresponding
prices.
IX. Subcontracting services
Subcontrancting any portion(s) of the Scope of Services is not preferable; however, if a
proposer can demonstrate to the City’s satisfaction that is in the best interest of the
project to permit a portion of the service(s) to be subcontracted by the proposer, it
may be considered. Provide details on the role of any subcontractor that will be used.
Assignment is prohibited.
X. List of services and / or information needed from the City in order for the project
to succeed.
XI. A statement that, if selected, the proposer will provide the minimum insurance
coverage and indemnification noted in Exhibit E of the City’s Professional
Services Agreement (Attachment 2).
XII. Non-Collusion Affidavit executed by an official authorized to bind the firm
(Attachment 3).
XIII. Acknowledgment of Addenda (Attachment 4)
If any addendum / addenda are issued, the proposer shall initial the Acknowledgment
of Addenda.
XIV. Submit three (3) identical paper copies of the complete proposal; including all
attachments with original signatures of an authorized company official.
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 6 of 34
PRICING ADJUSTMENTS
The City reserves the right to negotiate final pricing with the most qualified
respondent. Pricing shall remain firm for the entire first term of the agreement.
Thereafter, any proposed pricing adjustment for additional periods, if any, shall be
submitted to the City in writng at least thirty (30) days prior to the new agreement
term. Any proposed pricing adjustments shall not exceed the Bureau of Labor
Statistics Consumer Price Index (CPI) using the database for Los Angeles-Riverside-
Orange County, California; All Items, Not Seasonally Adjusted; annualized change
comparing the most recent month’s reported data to the same month of the prior
year. (Data available from the U.S. Department of Labor website.) The City may or may not
accept price adjustments.
PROPOSAL PREPARATION COSTS
Any costs incurred in the preparation of a proposal, preparation of changes or
additions requested by the City, presentation to the City, travel in conjunction with
such presentations, or samples of items, shall be the responsibility of the respondent.
The City assumes no responsibility and no liability for costs incurred by respondents
prior to issuance of an agreement.
NEGOTIATIONS AND FINAL AGREEMENT
The City’s Professional Services Agreement is attached (Attachment 2) for review prior
to submitting a proposal. An agreement will not be binding or valid with the City
unless and until it is executed by authorized representatives of the City and of the
selected proposer. At the discretion of the City, any or all parts of the successful
proposer’s proposal shall be made a binding part of the agreement.
ACCESS TO DOCUMENTS
The City must have access to all City documents in the Contractor’s possession upon
request, with a hard copy or electronic file provided within 24 hours.
PROPRIETARY, CONFIDENTIAL AND PUBLIC INFORMATION
PROPRIETARY AND TRADE SECRET INFORMATION:
A copy of each proposal will be retained as an official record and will become public
record after the project is awarded and an agreement is executed, unless the proposal
or specific parts can be shown to be exempt by law [California State Government Code
§6254.15 and §6276]. Each proposer may clearly label part of a proposal as
“Confidential” if the proposer thereby agrees to indemnify and defend the City for
honoring such a designation. The failure to so label any information that is released
by the City will constitute a complete waiver of all claims for damages caused by any
release of the information. If a public record request for labeled information is
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 7 of 34
received by the City, the City will notify the proposer of the request and delay access
to the material until seven working days after notification to the proposer. Within that
time delay, it will be the duty of the proposer to act in protection of its labeled
information. Failure to so act will constitute a complete waiver.
CONFIDENTIAL INFORMATION:
Evaluation scores, weight factors, and negotiation notes are confidential and will not
be released or retained [California State Government Code § 6254(a)].
PUBLIC INFORMATION:
All proposals will be opened on July 10, 2017, and a list of the proposer names will be
made available to the public upon request. No other information will be released until
an agreement is executed. The final, executed agreement will be a public document.
Proposals and other information will not be returned. By submitting a proposal, the
proposer acknowledges and accepts that the content of the proposal and associated
documents will become open to public inspection once a proposer is selected and an
agreement for Document Scanning and Quality Control Services is executed.
SELECTION PROCESS AND RFP TIMELINE
Proposals shall be reviewed and rated base on pricing and responses to all the
information requested by this RFP as well as responses from references and clients,
background checks, and any research on proposers or other information pertinent to
the evaluation process. Closely ranked firms may be asked to furnish evidence of
capability, equipment, and financial resources to adequately provide the service.
RFP Timeline:
Issue RFP June 19, 2017
Deadline for Proposers’ Questions June 26, 2017
City’s Response to Questions June 29, 2017
RFP Submittal Deadline July 7, 2017
Complete Evaluations July 11, 2017
Agreement Negotiations and Signing July 14, 2017
City Council Consideration and Approval July 18, 2017
Agreement Effective Date and Project Start Date August 1, 2017
MODIFICATIONS AND WITHDRAWALS OF SUBMITTED PROPOSALS
Proposers may withdraw proposals prior to the Submittal Deadline by submitting a
written request to Monika Radeva, Deputy City Clerk, at MRadeva@La-Quinta.org.
Withdrawn proposals will be returned unopened. Proposers may modify proposals
prior to the Submittal Deadline by withdrawing their proposal as noted above and re-
submitting it before the Submittal Deadline.
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 8 of 34
CITY RIGHTS AND OPTIONS
The City reserves the right to:
Issue addenda
Make the selection based on its sole discretion
Reject any and/or all proposals in whole or in part for any reason, including
suspicion of collusion among Proposers
Issue subsequent RFP
Postpone opening proposals or selection for any reason
Remedy errors in the RFP or in the RFP process
Modify the Scope of Services in the RFP
Approve or disapprove the use of particular subcontractors
Negotiate with any, all or none of the proposers
Accept other than the lowest offer
Waive informalities and irregularities in proposals
Request additional information or clarification
Request revisions during negotiations
Invite any consultant of its choosing to assist with the evaluation of proposal
responses or to provide the City with a second opinion
Enter into an agreement with another proposer in the event the originally-
selected proposer defaults or fails to execute an agreement with the City in a
timely manner
Attachments: 1. Pricing Chart
2. Professional Services Agreement
3. None-Collusion Affidavit Form
4. Addendum / Addenda Acknowledgment
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 9 of 34
ATTACHMENT 1
PRICING CHART
SERVICES PRICE per image
SHIPPING:
PRE-SCANNING DOCUMENT PREPARATION:
SCANNING (best image rate: 200 – 400 DPI):
Black & White (Sizes: 8.5 x 11 and 8.5 x 14)
Greyscale (Sizes: 8.5 x 11 and 8.5 x 14)
Full Color (Sizes: 8.5 x 11 and 8.5 x 14)
FILE RE-ASSEMBLY:
INDEXING (per field pricing):
OCR-ing:
DATA TRANSFER (per CD / DVD or Laserfiche Briefcase
or Volume)
QUALITY CONTROL:
OTHER CHARGES, FEES, OR BILLABLES:
Use additional copies of this form if space is needed Signed:
Document Scanning and Quality Control Services
Request for Proposals City of La Quinta
Due Date: July 7, 2017 at 4:00 p.m. Page 10 of 34
ATTACHMENT 2
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (the “Agreement”) is made and entered into
by and between the CITY OF LA QUINTA, (“City”), a California municipal corporation, and
(“Consultant”). The parties hereto agree as follows:
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement,
Consultant shall provide those services related to
, Project No. , as specified in the “Scope of Services”
attached hereto as Exhibit “A” and incorporated herein by this reference (the “Services”).
Consultant represents and warrants that Consultant is a provider of first-class services and
Consultant is experienced in performing the Services contemplated herein and, in light of such
status and experience, Consultant covenants that it shall follow the highest professional
standards in performing the Services required hereunder. For purposes of this Agreement, the
phrase “highest professional standards” shall mean those standards of practice recognized by
one or more first-class firms performing similar services under similar circumstances.
1.2 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all ordinances, resolutions, statutes, rules, regulations, and laws of the City
and any Federal, State, or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Except as otherwise specified herein,
Consultant shall obtain at its sole cost and expense such licenses, permits, and approvals as
may be required by law for the performance of the Services required by this Agreement,
including a City of La Quinta business license. Consultant and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term
of this Agreement any licenses, permits, and approvals that are legally required for the
performance of the Services required by this Agreement. Consultant shall have the sole
obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest,
which may be imposed by law and arise from or are necessary for the performance of the
Services required by this Agreement, and shall indemnify, defend (with counsel selected by
City), and hold City, its elected officials, officers, employees, and agents, free and harmless
against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed
against City hereunder. Consultant shall be responsible for all subcontractors’ compliance
with this Section.
1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that
(a) it has thoroughly investigated and considered the Services to be performed, (b) it has
investigated the site where the Services are to be performed, if any, and fully acquainted itself
with the conditions there existing, (c) it has carefully considered how the Services should be
performed, and (d) it fully understands the facilities, difficulties, and restrictions attending
performance of the Services under this Agreement. Should Consultant discover any latent or
unknown conditions materially differing from those inherent in the Services or as represented
by City, Consultant shall immediately inform City of such fact and shall not proceed except at
Document Scanning and Quality Control Services
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Consultant's risk until written instructions are received from the Contract Officer (as defined in
Section 4.2 hereof).
1.5 Standard of Care. Consultant acknowledges and understands that the Services
contracted for under this Agreement require specialized skills and abilities and that,
consistent with this understanding, Consultant’s work will be held to a heightened standard of
quality. Consistent with Section 1.4 hereinabove, Consultant represents to City that it holds
the necessary skills and abilities to satisfy the heightened standard of quality as set forth in
this Agreement. Consultant shall adopt reasonable methods during the life of this Agreement
to furnish continuous protection to the Services performed by Consultant, and the equipment,
materials, papers, and other components thereof to prevent losses or damages, and shall be
responsible for all such damages, to persons or property, until acceptance of the Services by
City, except such losses or damages as may be caused by City's own negligence. The
performance of Services by Consultant shall not relieve Consultant from any obligation to
correct any incomplete, inaccurate, or defective work at no further cost to City, when such
inaccuracies are due to the negligence of Consultant.
1.6 Additional Services. In accordance with the terms and conditions of this
Agreement, Consultant shall perform services in addition to those specified in the Scope of
Services (“Additional Services”) only when directed to do so by the Contract Officer, provided
that Consultant shall not be required to perform any Additional Services without
compensation. Consultant shall not perform any Additional Services until receiving prior
written authorization from the Contract Officer, incorporating therein any adjustment in (i) the
Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are
subject to the written approval of Consultant. It is expressly understood by Consultant that
the provisions of this Section shall not apply to the Services specifically set forth in the Scope
of Services or reasonably contemplated therein. It is specifically understood and agreed that
oral requests and/or approvals of Additional Services shall be barred and are unenforeceable.
Failure of Consultant to secure the Contract Officer’s written authorization for Additional
Services shall constitute a waiver of any and all right to adjustment of the Contract Sum or
time to perform this Agreement, whether by way of compensation, restitution, quantum
meruit, or the like, for Additional Services provided without the appropriate authorization from
the Contract Officer. Compensation for properly authorized Additional Services shall be made
in accordance with Section 2.3 of this Agreement.
1.7 Special Requirements. Additional terms and conditions of this Agreement, if any,
which are made a part hereof are set forth in Exhibit “D” (the “Special Requirements”), which
is incorporated herein by this reference and expressly made a part hereof. In the event of a
conflict between the provisions of the Special Requirements and any other provisions of this
Agreement, the provisions of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the Services rendered pursuant to this Agreement, Consultant
shall be compensated in accordance with Exhibit “B” (the “Schedule of Compensation”) in a
total amount not to exceed Dollars ($
) (the “Contract Sum”), except as provided in Section 1.6. The method of compensation
set forth in the Schedule of Compensation may include a lump sum payment upon
completion, payment in accordance with the percentage of completion of the Services,
payment for time and materials based upon Consultant's rate schedule, but not exceeding the
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Contract Sum, or such other methods as may be specified in the Schedule of Compensation.
The Contract Sum shall include the attendance of Consultant at all project meetings
reasonably deemed necessary by City; Consultant shall not be entitled to any additional
compensation for attending said meetings. Compensation may include reimbursement for
actual and necessary expenditures for reproduction costs, transportation expense, telephone
expense, and similar costs and expenses when and if specified in the Schedule of
Compensation. Regardless of the method of compensation set forth in the Schedule of
Compensation, Consultant’s overall compensation shall not exceed the Contract Sum, except
as provided in Section 1.6 of this Agreement.
2.2 Method of Billing. Any month in which Consultant wishes to receive
payment, Consultant shall submit to City no later than the tenth (10th) working day of such
month, in the form approved by City's Finance Director, an invoice for Services rendered prior
to the date of the invoice. Such invoice shall (1) describe in detail the Services provided,
including time and materials, and (2) specify each staff member who has provided Services
and the number of hours assigned to each such staff member. Such invoice shall contain a
certification by a principal member of Consultant specifying that the payment requested is for
Services performed in accordance with the terms of this Agreement. Subject to retention
pursuant to Section 8.3, City will pay Consultant for all items stated thereon which are
approved by City pursuant to this Agreement no later than thirty (30) days after invoices are
received by the City’s Finance Department.
2.3 Compensation for Additional Services. Additional Services approved in
advance by the Contract Officer pursuant to Section 1.6 of this Agreement shall be paid for in
an amount agreed to in writing by both City and Consultant in advance of the Additional
Services being rendered by Consultant. Any compensation for Additional Services amounting
to five percent (5%) or less of the Contract Sum may be approved by the Contract Officer. Any
greater amount of compensation for Additional Services must be approved by the La Quinta
City Council. Under no circumstances shall Consultant receive compensation for any
Additional Services unless prior written approval for the Additional Services is obtained from
the Contract Officer pursuant to Section 1.6 of this Agreement.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement. If
the Services not completed in accordance with the Schedule of Performance, as set forth in
Section 3.2 and Exhibit C, it is understood that the City will suffer damage.
3.2 Schedule of Performance. All Services rendered pursuant to this Agreement shall
be performed diligently and within the time period established in Exhibit C (the “Schedule of
Performance”). Extensions to the time period specified in the Schedule of Performance may
be approved in writing by the Contract Officer.
3.3 Force Majeure. The time period specified in the Schedule of Performance for
performance of the Services rendered pursuant to this Agreement shall be extended because
of any delays due to unforeseeable causes beyond the control and without the fault or
negligence of Consultant, including, but not restricted to, acts of God or of the public enemy,
fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes,
acts of any governmental agency other than City, and unusually severe weather, if Consultant
shall within ten (10) days of the commencement of such delay notify the Contract Officer in
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writing of the causes of the delay. The Contract Officer shall ascertain the facts and the
extent of delay, and extend the time for performing the Services for the period of the forced
delay when and if in his or her judgment such delay is justified, and the Contract Officer's
determination shall be final and conclusive upon the parties to this Agreement. Extensions to
time period in the Schedule of Performance which are determined by the Contract Officer to
be justified pursuant to this Section shall not entitle the Consultant to additional
compensation in excess of the Contract Sum.
3.4 Term. Unless earlier terminated in accordance with Sections 8.8 or 8.9 of this
Agreement, the term of this agreement shall commence on _________, ____, 20__ and
terminate on ____________, ___ 20___(“Initial Term”). This Agreement may be extended for
two (2) additional three-year terms upon mutual agreement by both parties (“Extended
Term”).
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following principals of Consultant (“Principals”)
are hereby designated as being the principals and representatives of Consultant authorized to
act in its behalf with respect to the Services specified herein and make all decisions in
connection therewith:
a.____________________________________
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 be responsible during the term of this
Agreement for directing all activities of Consultant and devoting sufficient time to personally
supervise the Services hereunder. For purposes of this Agreement, the foregoing Principals
may not be changed by Consultant and no other personnel may be assigned to perform the
Services required hereunder without the express written approval of City.
4.2 Contract Officer. The “Contract Officer” shall be or
such other person as may be designated in writing by the City Manager of City. It shall be
Consultant's responsibility to assure that the Contract Officer is kept informed of the progress
of the performance of the Services, and Consultant shall refer any decisions, that must be
made by City to the Contract Officer. Unless otherwise specified herein, any approval of City
required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall
have authority to sign all documents on behalf of City required hereunder to carry out the
terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability, and reputation of Consultant, its principals, and its employees were a substantial
inducement for City to enter into this Agreement. Except as set forth in this Agreement,
Consultant shall not contract with any other entity to perform in whole or in part the Services
required hereunder without the express written approval of City. In addition, neither this
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Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or
encumbered, voluntarily or by operation of law, without the prior written approval of City.
Transfers restricted hereunder shall include the transfer to any person or group of persons
acting in concert of more than twenty five percent (25%) of the present ownership and/or
control of Consultant, taking all transfers into account on a cumulative basis. Any attempted
or purported assignment or contracting by Consultant without City’s express written approval
shall be null, void, and of no effect. No approved transfer shall release Consultant of any
liability hereunder without the express consent of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have any
control over the manner, mode, or means by which Consultant, its agents, or its employees,
perform the Services required herein, except as otherwise set forth herein. City shall have no
voice in the selection, discharge, supervision, or control of Consultant’s employees, servants,
representatives, or agents, or in fixing their number or hours of service. Consultant shall
perform all Services required herein as an independent contractor of City and shall remain at
all times as to City a wholly independent contractor with only such obligations as are
consistent with that role. Consultant shall not at any time or in any manner represent that it
or any of its agents or employees are agents or employees of City. City shall not in any way or
for any purpose become or be deemed to be a partner of Consultant in its business or
otherwise or a joint venturer or a member of any joint enterprise with Consultant. Consultant
shall have no power to incur any debt, obligation, or liability on behalf of City. Consultant shall
not at any time or in any manner represent that it or any of its agents or employees are
agents or employees of City. Except for the Contract Sum paid to Consultant as provided in
this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for
performing the Services hereunder for City. City shall not be liable for compensation or
indemnification to Consultant for injury or sickness arising out of performing the Services
hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or
ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors
providing services under this Agreement shall not qualify for or become entitled to any
compensation, benefit, or any incident of employment by City, including but not limited to
eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an
employee of City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits. Consultant agrees to pay all
required taxes on amounts paid to Consultant under this Agreement, and to indemnify and
hold City harmless from any and all taxes, assessments, penalties, and interest asserted
against City by reason of the independent contractor relationship created by this Agreement.
Consultant shall fully comply with the workers’ compensation laws regarding Consultant and
Consultant’s employees. Consultant further agrees to indemnify and hold City harmless from
any failure of Consultant to comply with applicable workers’ compensation laws. City shall
have the right to offset against the amount of any payment due to Consultant under this
Agreement any amount due to City from Consultant as a result of Consultant’s failure to
promptly pay to City any reimbursement or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Consultant represents that it employs or will
employ at its own expense all personnel required for the satisfactory performance of any and
all of the Services set forth herein. Consultant represents that the Services required herein will
be performed by Consultant or under its direct supervision, and that all personnel engaged in
such work shall be fully qualified and shall be authorized and permitted under applicable State
and local law to perform such tasks and services.
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4.6 City Cooperation. City shall provide Consultant with any plans, publications,
reports, statistics, records, or other data or information pertinent to the Services to be
performed hereunder which are reasonably available to Consultant only from or through
action by City.
5.0 INSURANCE
5.1 Insurance. Prior to the beginning of any Services under this Agreement and
throughout the duration of the term of this Agreement, Consultant shall procure and
maintain, at its sole cost and expense, and submit concurrently with its execution of this
Agreement, policies of insurance as set forth in Exhibit E (the “Insurance Requirements”)
which is incorporated herein by this reference and expressly made a part hereof.
5.2 Proof of Insurance. Contractor shall provide certificates of Insurance to Agency as
evidence of the insurance coverage required herein, along with all required endorsements,
Insurance certificates and endorsements must be approved by Agency’s Risk Manager prior to
commencement of performance.
6.0 INDEMNIFICATION.
6.1 Indemnification. To the fullest extent permitted by law, Consultant shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and
all of its officers, employees, agents, and volunteers as set forth in Exhibit F
(“Indemnification”) which is incorporated herein by this reference and expressly made a part
hereof.
7.0 RECORDS AND REPORTS.
7.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer
such reports concerning Consultant's performance of the Services required by this Agreement
as the Contract Officer shall require. Consultant hereby acknowledges that City is greatly
concerned about the cost of the Services to be performed pursuant to this Agreement. For
this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances,
techniques, or events that may or will materially increase or decrease the cost of the Services
contemplated herein or, if Consultant is providing design services, the cost of the project being
designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance,
technique, or event and the estimated increased or decreased cost related thereto and, if
Consultant is providing design services, the estimated increased or decreased cost estimate
for the project being designed.
7.2 Records. Consultant shall keep, and require any subcontractors to keep, such
ledgers, books of accounts, invoices, vouchers, canceled checks, reports (including but not
limited to payroll reports), studies, or other documents relating to the disbursements charged
to City and the Services performed hereunder (the “Books and Records”), as shall be necessary
to perform the Services required by this Agreement and enable the Contract Officer to
evaluate the performance of such Services. Any and all such Books and Records shall be
maintained in accordance with generally accepted accounting principles and shall be
complete and detailed. The Contract Officer shall have full and free access to such Books and
Records at all times during normal business hours of City, including the right to inspect, copy,
audit, and make records and transcripts from such Books and Records. Such Books and
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Records shall be maintained for a period of three (3) years following completion of the
Services hereunder, and City shall have access to such Books and Records in the event any
audit is required. In the event of dissolution of Consultant’s business, custody of the Books
and Records may be given to City, and access shall be provided by Consultant’s successor in
interest. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds Ten Thousand Dollars ($10,000.00), this Agreement
shall be subject to the examination and audit of the State Auditor, at the request of City or as
part of any audit of City, for a period of three (3) years after final payment under this
Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps, designs,
photographs, studies, surveys, data, notes, computer files, reports, records, documents, and
other materials plans, drawings, estimates, test data, survey results, models, renderings, and
other documents or works of authorship fixed in any tangible medium of expression, including
but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically,
or in any other medium prepared or caused to be prepared by Consultant, its employees,
subcontractors, and agents in the performance of this Agreement (the “Documents and
Materials”) shall be the property of City and shall be delivered to City upon request of the
Contract Officer or upon the expiration or termination of this Agreement, and Consultant shall
have no claim for further employment or additional compensation as a result of the exercise
by City of its full rights of ownership use, reuse, or assignment of the Documents and Materials
hereunder. Any use, reuse or assignment of such completed Documents and Materials for
other projects and/or use of uncompleted documents without specific written authorization by
Consultant will be at City’s sole risk and without liability to Consultant, and Consultant’s
guarantee and warranties shall not extend to such use, revise, or assignment. Consultant
may retain copies of such Documents and Materials for its own use. Consultant shall have an
unrestricted right to use the concepts embodied therein. All subcontractors shall provide for
assignment to City of any Documents and Materials prepared by them, and in the event
Consultant fails to secure such assignment, Consultant shall indemnify City for all damages
resulting therefrom.
In the event City or any person, firm, or corporation authorized by City reuses said
Documents and Materials without written verification or adaptation by Consultant for the
specific purpose intended and causes to be made or makes any changes or alterations in said
Documents and Materials, City hereby releases, discharges, and exonerates Consultant from
liability resulting from said change. The provisions of this clause shall survive the termination
or expiration of this Agreement and shall thereafter remain in full force and effect.
7.4 Licensing of Intellectual Property. This Agreement creates a non-exclusive and
perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights,
designs, rights of reproduction, and other intellectual property embodied in the Documents
and Materials. Consultant shall require all subcontractors, if any, to agree in writing that City
is granted a non-exclusive and perpetual license for the Documents and Materials the
subcontractor prepares under this Agreement. Consultant represents and warrants that
Consultant has the legal right to license any and all of the Documents and Materials.
Consultant makes no such representation and warranty in regard to the Documents and
Materials which were prepared by design professionals other than Consultant or provided to
Consultant by City. City shall not be limited in any way in its use of the Documents and
Materials at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City’s sole risk.
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7.5 Release of Documents. The Documents and Materials shall not be released
publicly without the prior written approval of the Contract Officer or as required by law.
Consultant shall not disclose to any other entity or person any information regarding the
activities of City, except as required by law or as authorized by City.
8.0 ENFORCEMENT OF AGREEMENT.
8.1 California Law. This Agreement shall be interpreted, construed, and governed
both as to validity and to performance of the parties in accordance with the laws of the State
of California. Legal actions concerning any dispute, claim, or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County of Riverside,
State of California, or any other appropriate court in such county, and Consultant covenants
and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 Disputes. In the event of any dispute arising under this Agreement, the injured
party shall notify the injuring party in writing of its contentions by submitting a claim
therefore. The injured party shall continue performing its obligations hereunder so long as the
injuring party commences to cure such default within ten (10) days of service of such notice
and completes the cure of such default within forty-five (45) days after service of the notice,
or such longer period as may be permitted by the Contract Officer; provided that if the default
is an immediate danger to the health, safety, or general welfare, City may take such
immediate action as City deems warranted. Compliance with the provisions of this Section
shall be a condition precedent to termination of this Agreement for cause and to any legal
action, and such compliance shall not be a waiver of any party's right to take legal action in
the event that the dispute is not cured, provided that nothing herein shall limit City's right to
terminate this Agreement without cause pursuant to Section 8.8. During the period of time
that Consultant is in default, City shall hold all invoices and shall, when the default is cured,
proceed with payment on the invoices. In the alternative, City may, in its sole discretion, elect
to pay some or all of the outstanding invoices during any period of default.
8.3 Retention of Funds. City may withhold from any monies payable to Consultant
sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably
believes were suffered by City due to the default of Consultant in the performance of the
Services required by this Agreement.
8.4 Waiver. No delay or omission in the exercise of any right or remedy of a non-
defaulting party on any default shall impair such right or remedy or be construed as a waiver.
City's consent or approval of any act by Consultant requiring City's consent or approval shall
not be deemed to waive or render unnecessary City's consent to or approval of any
subsequent act of Consultant. Any waiver by either party of any default must be in writing
and shall not be a waiver of any other default concerning the same or any other provision of
this Agreement.
8.5 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.
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8.6 Legal Action. In addition to any other rights or remedies, either party may take
legal action, at law or at equity, to cure, correct, or remedy any default, to recover damages
for any default, to compel specific performance of this Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this
Agreement.
8.7 Termination Prior To Expiration Of Term. This Section shall govern any termination
of this Agreement, except as specifically provided in the following Section 8.9 for termination
for cause. City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of
termination, Consultant shall immediately cease all Services hereunder except such as may be
specifically approved by the Contract Officer. Consultant shall be entitled to compensation for
all Services rendered prior to receipt of the notice of termination and for any Services
authorized by the Contract Officer thereafter in accordance with the Schedule of
Compensation or such as may be approved by the Contract Officer, except as provided in
Section 8.3.
8.8 Termination for Default of Consultant. If termination is due to the failure of
Consultant to fulfill its obligations under this Agreement, City may, after compliance with the
provisions of Section 8.2, take over the Services and prosecute the same to completion by
contract or otherwise, and Consultant shall be liable to the extent that the total cost for
completion of the Services required hereunder exceeds the compensation herein stipulated
(provided that City shall use reasonable efforts to mitigate such damages), and City may
withhold any payments to Consultant for the purpose of setoff or partial payment of the
amounts owed City as previously stated in Section 8.3.
8.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend
or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to reasonable attorneys’ fees; provided,
however, that the attorneys’ fees awarded pursuant to this Section shall not exceed the
hourly rate paid by City for legal services multiplied by the reasonable number of hours spent
by the prevailing party in the conduct of the litigation. Attorneys’ fees shall include attorneys’
fees on any appeal, and in addition a party entitled to attorneys’ fees shall be entitled to all
other reasonable costs for investigating such action, taking depositions and discovery, and all
other necessary costs the court allows which are incurred in such litigation. All such fees shall
be deemed to have accrued on commencement of such action and shall be enforceable
whether or not such action is prosecuted to judgment. The court may set such fees in the
same action or in a separate action brought for that purpose.
9.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1 Non-liability of City Officers and Employees. No officer, official, employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event or any default or breach by City or for any amount which may become
due to Consultant or to its successor, or for breach of any obligation of the terms of this
Agreement.
9.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or
principal of it, has or shall acquire any interest, directly or indirectly, which would conflict in
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any manner with the interests of City or which would in any way hinder Consultant’s
performance of the Services under this Agreement. Consultant further covenants that in the
performance of this Agreement, no person having any such interest shall be employed by it as
an officer, employee, agent, or subcontractor without the express written consent of the
Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the
appearance of any conflicts of interest with the interests of City in the performance of this
Agreement.
No officer or employee of City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to
this Agreement which effects his financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly, interested, in violation of any
State statute or regulation. Consultant warrants that it has not paid or given and will not pay
or give any third party any money or other consideration for obtaining this Agreement.
9.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that there shall be
no discrimination against or segregation of, any person or group of persons on account of any
impermissible classification including, but not limited to, race, color, creed, religion, sex,
marital status, sexual orientation, national origin, or ancestry in the performance of this
Agreement. Consultant shall take affirmative action to insure that applicants are employed
and that employees are treated during employment without regard to their race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.0 MISCELLANEOUS PROVISIONS
10.1 Notice. Any notice, demand, request, consent, approval, or communication either
party desires or is required to give the other party or any other person shall be in writing and
either served personally or sent by prepaid, first-class mail to the address set forth below.
Either party may change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from the time of
mailing if mailed as provided in this Section.
To City: To Consultant:
CITY OF LA QUINTA Company Name
Frank Spevacek, City Manager Representative Name, Title
78-495 Calle Tampico Address
La Quinta, California 92253 City, State, Zip
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 Consultant and by the City Council of City. The parties
agree that this requirement for written modifications cannot be waived and that any
attempted waiver shall be void.
10.7 Severability. In the event that any one or more of the articles, phrases, sentences,
clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or
unenforceable, such invalidity or unenforceability shall not affect any of the remaining
articles, phrases, sentences, clauses, paragraphs, or sections of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent of the parties
hereunder unless the invalid provision is so material that its invalidity deprives either party of
the basic benefit of their bargain or renders this Agreement meaningless.
10.8 Unfair Business Practices Claims. In entering into this Agreement, Consultant
offers and agrees to assign to City all rights, title, and interest in and to all causes of action it
may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act
(Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or materials related to this
Agreement. This assignment shall be made and become effective at the time City renders
final payment to Consultant without further acknowledgment of the parties.
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 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
Dated:
CONSULTANT:
By:
Name:
Title:
Dated:
ATTEST:
SUSAN MAYSELS, City Clerk La Quinta,
California
By:
Name:
Title:
Dated:
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.
(2) CONTRACTOR’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
CONTRACTOR’S BUSINESS ENTITY.
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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]
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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 Consultant under this
Agreement is _______________________($_____________) (“Contract Sum”). The Contract Sum
shall be paid to Consultant in installment payments made on a monthly basis and in an
amount identified in Consultant’s schedule of compensation attached hereto for the work
tasks performed and properly invoiced by Consultant in conformance with Section 2.2 of this
Agreement.
[insert Consultant’s schedule of compensation]
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Exhibit C
Schedule of Performance
Consultant shall complete all services identified in the Scope of Services, Exhibit A of this
Agreement, in accordance with the Project Schedule, attached hereto and incorporated herein
by this reference.
[insert Project Schedule]
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Exhibit D
Special Requirements
[insert Special Requirements or indicate, “None” if there are none]
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Exhibit E
Insurance Requirements
E.1 Insurance. Prior to the beginning of and throughout the duration of this
Agreement, the following policies shall be maintained and kept in full force and effect
providing insurance with minimum limits as indicated below and issued by insurers with A.M.
Best ratings of no less than A-:VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers’ Compensation
(per statutory requirements)
Consultant shall procure and maintain, at its cost, and submit concurrently with its
execution of this Agreement, Commercial General Liability insurance against all claims for
injuries against persons or damages to property resulting from Consultant's acts or omissions
rising out of or related to Consultant's performance under this Agreement. The insurance
policy shall contain a severability of interest clause providing that the coverage shall be
primary for losses arising out of Consultant's performance hereunder and neither City nor its
insurers shall be required to contribute to any such loss. A certificate evidencing the foregoing
and naming City and its officers and employees as additional insured (on the Commercial
General Liability policy only) shall be delivered to and approved by City prior to
commencement of the services hereunder.
Consultant shall carry automobile liability insurance of $1,000,000 per accident
against all claims for injuries against persons or damages to property arising out of the use of
any automobile by Consultant, its officers, any person directly or indirectly employed by
Consultant, any subcontractor or agent, or anyone for whose acts any of them may be liable,
arising directly or indirectly out of or related to Consultant's performance under this
Agreement. If Consultant or Consultant’s employees will use personal autos in any way on
this project, Consultant shall provide evidence of personal auto liability coverage for each such
person. The term “automobile” includes, but is not limited to, a land motor vehicle, trailer or
semi-trailer designed for travel on public roads. The automobile insurance policy shall contain
a severability of interest clause providing that coverage shall be primary for losses arising out
of Consultant's performance hereunder and neither City nor its insurers shall be required to
contribute to such loss.
Professional Liability or Errors and Omissions Insurance as appropriate shall be
written on a policy form coverage specifically designed to protect against acts, errors or
omissions of the consultant and “Covered Professional Services” as designated in the policy
must specifically include work performed under this agreement. The policy limit shall be no
less than $1,000,000 per claim and in the aggregate. The policy must “pay on behalf of” the
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insured and must include a provision establishing the insurer’s duty to defend. The policy
retroactive date shall be on or before the effective date of this agreement.
Consultant shall carry Workers' Compensation Insurance in accordance with State
Worker's Compensation laws with employer’s liability limits no less than $1,000,000 per
accident or disease.
Consultant shall provide written notice to City within ten (10) working days if:
(1) any of the required insurance policies is terminated; (2) the limits of any of the required
polices are reduced; or (3) the deductible or self-insured retention is increased. In the event
any of said policies of insurance are cancelled, Consultant shall, prior to the cancellation date,
submit new evidence of insurance in conformance with this Exhibit to the Contract Officer.
The procuring of such insurance or the delivery of policies or certificates evidencing the same
shall not be construed as a limitation of Consultant’s obligation to indemnify City, its officers,
employees, contractors, subcontractors, or agents.
E.2 Remedies. In addition to any other remedies City may have if Consultant fails to
provide or maintain any insurance policies or policy endorsements to the extent and within
the time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under this Agreement.
b. Order Consultant to stop work under this Agreement and/or withhold any
payment(s) which become due to Consultant hereunder until Consultant demonstrates
compliance with the requirements hereof.
c. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other
remedies City may have. The above remedies are not the exclusive remedies for Consultant's
failure to maintain or secure appropriate policies or endorsements. Nothing herein contained
shall be construed as limiting in any way the extent to which Consultant may be held
responsible for payments of damages to persons or property resulting from Consultant's or its
subcontractors' performance of work under this Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage by Consultant.
Consultant and City agree to the following with respect to insurance provided by Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds City, its officials, employees, and
agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992.
Consultant also agrees to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant’s employees, or agents, from waiving the right of
subrogation prior to a loss. Consultant agrees to waive subrogation rights against City
regardless of the applicability of any insurance proceeds, and to require all contractors and
subcontractors to do likewise.
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3. All insurance coverage and limits provided by Consultant and available or
applicable to this Agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to City or its operations limits
the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called “third party action over” claims, including any exclusion for bodily injury to
an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Consultant shall not make any
reductions in scope of coverage (e.g. elimination of contractual liability or reduction of
discovery period) that may affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all of the coverages required and an additional insured
endorsement to Consultant’s general liability policy, shall be delivered to City at or prior to the
execution of this Agreement. In the event such proof of any insurance is not delivered as
required, or in the event such insurance is canceled at any time and no replacement coverage
is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to
protect its interests under this or any other agreement and to pay the premium. Any premium
so paid by City shall be charged to and promptly paid by Consultant or deducted from sums
due Consultant, at City option.
8. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Consultant or any subcontractor, is intended to apply first
and on a primary, non-contributing basis in relation to any other insurance or self-insurance
available to City.
9. Consultant agrees to ensure that subcontractors, and any other party involved
with the project that is brought onto or involved in the project by Consultant, provide the
same minimum insurance coverage required of Consultant. Consultant agrees to monitor and
review all such coverage and assumes all responsibility for ensuring that such coverage is
provided in conformity with the requirements of this section. Consultant agrees that upon
request, all agreements with subcontractors and others engaged in the project will be
submitted to City for review.
10. Consultant agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein (with the exception of
professional liability coverage, if required) and further agrees that it will not allow any
contractor, subcontractor, Architect, Engineer or other entity or person in any way involved in
the performance of work on the project contemplated by this agreement to self-insure its
obligations to City. If Consultant’s existing coverage includes a deductible or self-insured
retention, the deductible or self-insured retention must be declared to the City. At that time
the City shall review options with the Consultant, which may include reduction or elimination
of the deductible or self-insured retention, substitution of other coverage, or other solutions.
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11. The City reserves the right at any time during the term of this Agreement to
change the amounts and types of insurance required by giving the Consultant ninety (90) days
advance written notice of such change. If such change results in substantial additional cost
to the Consultant, the City will negotiate additional compensation proportional to the
increased benefit to City.
12. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that can
be deemed to be in furtherance of or towards performance of this Agreement.
13. Consultant acknowledges and agrees that any actual or alleged failure on
the part of City to inform Consultant of non-compliance with any insurance requirement in no
way imposes any additional obligations on City nor does it waive any rights hereunder in this
or any other regard.
14. Consultant will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or terminated
for any reason. Termination of this obligation is not effective until City executes a written
statement to that effect.
15. Consultant shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other policies
providing at least the same coverage. Proof that such coverage has been ordered shall be
submitted prior to expiration. A coverage binder or letter from Consultant’s insurance agent
to this effect is acceptable. A certificate of insurance and/or additional insured endorsement
as required in these specifications applicable to the renewing or new coverage must be
provided to City within five (5) days of the expiration of coverages.
16. The provisions of any workers’ compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not to use any
statutory immunity defenses under such laws with respect to City, its employees, officials, and
agents.
17. Requirements of specific coverage features or limits contained in this section
are not intended as limitations on coverage, limits or other requirements nor as a waiver of
any coverage normally provided by any given policy. Specific reference to a given coverage
feature is for purposes of clarification only as it pertains to a given issue, and is not intended
by any party or insured to be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and distinct from
any other provision in this Agreement and are intended by the parties here to be interpreted
as such.
19. The requirements in this Exhibit supersede all other sections and provisions of
this Agreement to the extent that any other section or provision conflicts with or impairs the
provisions of this Exhibit.
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20. Consultant agrees to be responsible for ensuring that no contract used by
any party involved in any way with the project reserves the right to charge City or Consultant
for the cost of additional insurance coverage required by this agreement. Any such provisions
are to be deleted with reference to City. It is not the intent of City to reimburse any third party
for the cost of complying with these requirements. There shall be no recourse against City for
payment of premiums or other amounts with respect thereto.
21. Consultant agrees to provide immediate notice to City of any claim or loss
against Consultant arising out of the work performed under this agreement. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
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Exhibit F
Indemnification
F.1 General Indemnification Provision.
a. Indemnification for Professional Liability. When the law establishes a
professional standard of care for Consultant’s Services, to the fullest extent permitted by law,
Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officials, employees, and agents (“Indemnified Parties”) from and
against any and all claims, losses, liabilities of every kind, nature, and description, damages,
injury (including, without limitation, injury to or death of an employee of Consultant or of any
subcontractor), costs and expenses of any kind, whether actual, alleged or threatened,
including, without limitation, incidental and consequential damages, court costs, attorneys’
fees, litigation expenses, and fees of expert consultants or expert witnesses incurred in
connection therewith and costs of investigation, to the extent same are cause in whole or in
part by any negligent or wrongful act, error or omission of Consultant, its officers, agents,
employees or subcontractors (or any entity or individual that Consultant shall bear the legal
liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Consultant shall not be liable for any
injuries or property damage resulting from the reuse of the design at a location other than
that specified in Exhibit A without the written consent of the Consultant.
b. Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Consultant shall
indemnify, defend (with counsel selected by City), and hold harmless the Indemnified Parties
from and against any liability (including liability for claims, suits, actions, arbitration
proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of
any kind, whether actual, alleged or threatened, including, without limitation, incidental and
consequential damages, court costs, attorneys’ fees, litigation expenses, and fees of expert
consultants or expert witnesses) incurred in connection therewith and costs of investigation,
where the same arise out of, are a consequence of, or are in any way attributable to, in whole
or in part, the performance of this Agreement by Consultant or by any individual or entity for
which Consultant is legally liable, including but not limited to officers, agents, employees, or
subcontractors of Consultant.
F.2 Standard Indemnification Provisions. Consultant agrees to obtain executed indemnity
agreements with provisions identical to those set forth herein this section from each and
every subcontractor or any other person or entity involved by, for, with or on behalf of
Consultant in the performance of this Agreement. In the event Consultant fails to obtain such
indemnity obligations from others as required herein, Consultant agrees to be fully responsible
according to the terms of this Exhibit. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as a waiver of
any rights hereunder. This obligation to indemnify and defend City as set forth herein is
binding on the successors, assigns or heirs of Consultant and shall survive the termination of
this agreement or this section.
a. Indemnity Provisions for Contracts Related to Construction. Without
affecting the rights of City under any provision of this agreement, Consultant shall not be
required to indemnify and hold harmless City for liability attributable to the active negligence
of City, provided such active negligence is determined by agreement between the parties or by
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the findings of a court of competent jurisdiction. In instances where City is shown to have
been actively negligent and where City’s active negligence accounts for only a percentage of
the liability involved, the obligation of Consultant will be for that entire portion or percentage
of liability not attributable to the active negligence of City.
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ATTACHMENT 3
NON-COLLUSION AFFIDAVIT FORM
Must be executed by proposer and submitted with the proposal
I, ______________________________________________ (name) hereby declare as follows:
I am ______________________________________ of _______________________________ ,
(Title) (Company)
the party making the foregoing proposal, that the proposal is not made in the interest
of, or on behalf of, any undisclosed person, partnership, company, association,
organization, or corporation; that the proposal is genuine and not collusive or sham;
that the proposer has not directly or indirectly induced or solicited any other proposer
to put in a false or sham proposal, and has not directly or indirectly colluded,
conspired, connived, or agreed with any proposer or anyone else to put in a sham
proposal, or that anyone shall refrain from proposing; that the proposer has not in any
manner, directly or indirectly, sought by agreement, communication, or conference
with anyone to fix the proposal price of the proposer or any other proposer, or to fix
any overhead, profit, or cost element of the proposal price, or of that of any other
proposer, or to secure any advantage against the public body awarding the
agreement of anyone interested in the proposed agreement; that tall statements
contained in the proposal are true; and, further, that the proposer has not, directly or
indirectly, submitted his or her proposal price or any breakdown thereof, or the
contents thereof, or divulged information or data relative hereto, or paid, and will not
pay, any fee to any corporation, partnership, company, association, organization,
proposal depository, or to any member or agent thereof to effectuate a collusive or
sham proposal.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Proposer Signature: _______________________________________
Proposer Name: _______________________________________
Proposer Title: _______________________________________
Company Name: _______________________________________
Address: _______________________________________
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ATTACHMENT 4
ACKNOWLEDGEMENT OF RECEIPT OF ADDENDA
ADDENDUM NO. SIGNATURE INDICATING RECEIPT