2019-22 Willdan Financial Services - L&L AD 89-1ta Qa�tra
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MEMORANDUM
TO: Frank J. Spevacek, City Manager
FROM: Steve Howlett, Facilities Director
DATE: April 22, 2019
RE: Professional Services Agreement with Willdan Financial Services
for Street Lighting and Landscape District 89-1 Administrative
Services
Attached for your signature is a Professional Services Agreement with Willdan
Financial Services for Street Lighting and Landscape District 89-1 Administrative
Services.
Please sign the attached agreement(s) and return to the City Clerk for processing
and distribution.
Requesting department shall check and attach the items below as appropriate:
X Contract payments will be charged to account number: 215-7004-60102
X Amount of Agreement, Amendment, Change Order, etc.: $15,000 per year; $45,000 for the life of the
Agreement.
X A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with
no reportable interests in LQ or _ reportable interests
NA A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant
does not meet the definition in FPPC regulation 18701(2).
Authority to execute this agreement is based upon:
NA Approved by the City Council on
X City Manager's signature authority provided under Resolution No. 2015-045 for budgeted expenditures
of $50,000 or less. This expenditure is $WWW and authorized by Steve Howlett, Facilities Director
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NA Initial to certify that 3 written informal bids or proposals were received and considered in selection
The following required documents are attached to the agreement:
X Insurance certificates as required by the agreement (approved by Risk Manager on �— date)
NA Performance bonds as required by the agreement (originals) - PC
X City of La Quinta Business License number 0105431, Expiration 12/31/19
X A requisition for a Purchase Order has been prepared (amounts over $5,000)
X A copy of this Cover Memo has been emailed to Finance (Claudia)
Revised May 2017
AGREEMENT FOR CONTRACT SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is
made and entered into by and between the CITY OF LA QUINTA, ("City"), a
California municipal corporation, and Willdan Financial Services ("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 Administrative services for
the Lighting & Landscape Assessment District 89-1 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
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, or assigned designee (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, or assigned designee,
provided that Contracting Party shall not be required to perform any
Additional Services without compensation. Contracting Party shall not
perform any Additional Services until receiving prior written authorization (in
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the form of a written change order if Contracting Party is a contractor
performing the Services) from the Contract Officer, or assigned designee,
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,
or assigned designee'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, or assigned
designee. 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.
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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 Fifteen Thousand Dollars ($15,000) per year, encompassing the
contract term. (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
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method of 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 (loth) 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 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, or assigned designee, 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, or assigned designee,
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, or assigned
designee. 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, or assigned designee, 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, or assigned designee.
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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, or assigned
designee, in writing of the causes of the delay. The Contract Officer, or
assigned designee, 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, or assigned designee, 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, or assigned designee, 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 July 1, 2019, for services performed each year, these services
begin in February or March and end in October each year, the
agreement will terminate on June 30, 2022 ("Contract Term").
4. COORDINATION OF WORK.
4.1 Representative of Consultant. 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) Name: Daniel Louie, Project Manager
E-mail: DLouie@Willdan.com
(b) Name: Gladys_Medina, Vice President
E-mail: GMedina@Willdan.com
(c) Name: Mark J. Risco, President and CEO
E-mail: MRisco@Willdan.com
It is expressly understood that the experience, knowledge, capability,
and reputation of the foregoing Principals were a substantial inducement for
City to enter into this Agreement. Therefore, the foregoing Principals shall
be responsible during the term of this Agreement for directing all activities of
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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", otherwise known as
the Steve Howlett, Facilities Director, or assigned designee may be
designated in writing by the City Manager of the City. It shall be Contracting
Party's responsibility to assure that the Contract Officer, or assigned
designee, 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, or assigned designee. Unless otherwise
specified herein, any approval of City required hereunder shall mean the
approval of the Contract Officer, or assigned designee. The Contract
Officer, or assigned designee, 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
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
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authorized and permitted under applicable State and local law to perform
such tasks and services.
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, or assigned designee, such reports concerning
Contracting Party's performance of the Services required by this Agreement
as the Contract Officer, or assigned designee, 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, or
assigned designee, 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.
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, or assigned designee, 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, or assigned designee, 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 assigned designee, 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
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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. 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 assigned designee, 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
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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
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.
S. 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, or assigned designee; 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,
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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.
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, or assigned designee. 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, or
assigned designee, thereafter in accordance with the Schedule of
Compensation or such as may be approved by the Contract Officer, or
assigned designee, 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
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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),
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, or assigned designee.
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.
-13-
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. 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 ensure 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: Steve Howlett
Facilities Director
78495 Calle Tampico
La Quinta, California 92253
To Contracting Party:
Willdan Financial Services, Inc.
Daniel Louie
27368 Via Industria, Suite 200
Temecula, CA 92590
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.
-14-
10.3 Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only
and shall not limit or otherwise affect the terms of this Agreement.
10.4 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, and such counterparts shall
constitute one and the same instrument
10.5 Integrated Agreement. This Agreement including the exhibits
hereto is the entire, complete, and exclusive expression of the
understanding of the parties. It is understood that there are no oral
agreements between the parties hereto affecting this Agreement and this
Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements, and understandings, if any, between the parties,
and none shall be used to interpret this Agreement.
10.6 Amendment. No amendment to or modification of this
Agreement shall be valid unless made in writing and approved by
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
-15-
beneficiaries under this Agreement and no such other third parties shall have
any rights or obligations hereunder.
10.10Authority. 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]
-16-
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the dates stated below.
CITY OF LA QUINTA, CDNTRACTI PARTY:
a California Municipal Corporation
By: _
Name: -Gladys Medina
]. CEK, City Manager Title: Vice President
City of a Quint California
Dated:
ATTEST: By
Name: Rebe ah smith
4 Title: Assistant Secretary
MONIKA RAD VA, Ci lerk
La Quinta, California
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
-17-
Exhibit A
Scope of Services
Services to be Provided:
�' f City of La quinta
vY W ILLDM LA quints Landscaping and Lighting District
FY2019-20 Timeline, In
■-
D-
Kick-off Meeting: To discuss the District. the levy process and overall expeclatkons — Crty
Couvia I Meeting dates, staffing changes, budget inivmation, District Speof+e or Changes
Wednesday
t12120/19 (nduding the improvements and services provided, formations or annexations, changes to
the assessments particularly new or increased assessments). and the antidpaled levy
timeline_
F-day
04119119 City provides Wilidan with Preliminary Budget Information.
City provides Wrlydan with final revisions to the budget based an previous
Wednesday
i15i01119
diswssions_
Wiiidan romp-etes fins! madificalion5 to the 7nginee r's Repon based on iitlis in out of the
Tuesday
1&14119
proposed assessments and budgets, and ire kzes rend uaons and dvcurr^e4i7abon
Willdan delivers: 1.) Preliminary Engineer's Report: 2.) Resolution and
Wednesday
OW15119 documents necessary for the intent Meeting: 3.1 Resolutions and documents
needed for the Public Hearing (if completed).
Intent Meeting: Ccuital adopts Resdubon- 1_I Rrsokrtion of Intent and Prelirnisfxry
Tuesday
06101119 Approval of the Engineer's Report (Reviews and prebminatity approves the report and the
proposed assessments)
WiIIdan delivers: 1.) Resolution to be adopted at the Pubfic Hearing (If not
previously provided): 2.1 Final Engineers Report (if changes or modifications
Th+rseay
L OCJ19 to the P-refirnmary Report were ordered by City Council action or if any
substantial or material changes must be made to the report on file with the City
Clerk.)
Pursuant to sections 22026, 22552 and 22553 of the 1972 Act and 0061 of the 3a.*r-rnent
Thv ,--W
DOM7118 Code, the City Clerk shall publish the resolution of Intention one time at least 10 days prier
to the Public Hearing_
Public Bearing: Council holds public hearing rogartmg the District and aasessmerrs-
After the public hearing has been closed, the Council may discuss and adopt the
Tuesday
0919H9 appropriate resdutions for the D strict and lest' of assessments-. 1.) Resoiutx)n Approving
the Engineer's Report (s Sulu mined or Amended is Z) Resok4ion Ordering the Levy
and Collection of Assessments_
City C*rk prow des Wildan whit two Certified 'Beet copies' of all documems to be submitted
Friday
O&r28119 to the County with the assessment roil including the Resolution Ordering the Levy and
Col!ecdion of Assessments and any Propositions 2 S e Compiianae Documentation.
Witidan reviews, confirms and updates all levy database flies roffecte r in the Engineer's
Friday
07,r05'19
Report budgets andlor assessment rates approved by the City Council_
WHIdan Submits Levy to County {Levy Tape. Resolutions and any other
Friday
0"9119
Documentation).
Tuesday
08i2W9 WiMan submits Levy Corrections to the Cor.mty for all taxable exceptions.
Friday
10J11119 Witldan provides the City with an Applied Levy Summary_
The Cam Coo=id meet the Fict & Third Tuejdt of e h Mouth
Exhibit A
Page 1 of 2 Last revised summer 2017
2. Performance Standards:
Work to be performed in the identified timeline.
Exhibit A
Page 2of2
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 not to exceed Fifteen
Thousand Dollars ($ 15,000) ("Contract Sum") per year. The Contract Sum
shall be paid to Contracting Party in quarterly installment payments 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.
Total compensation for all work under this contract shall not exceed fifteen thousand dollars ($15,000).
except as specified in Section 1.6 ('Additional Servtes71 of the Agreement
Landscapino and Liuhtina District Ad mfn is tration
Compensation to Wirldan for the prescnbed : mope of service wiIf be as follows:
District
Number of Parcels
Fee
Landscape and lighting District No. 89-1
23,183
$12,500
As the work progresses lees are payable on a guarferFy pe rcentage-co m p+-- bon ba:�s_
Expenses
'rrVddan will be reimbursed tar out-of-pocket expenses Examples of reimbursable eAWses nzluda. I,ut
are rat Gritted to:
• Postage. + Mileage (current federal prevailing rate), and
• Travel expenses. • Copying (eurrenfly 60 Per cupyt.
Any adaitaona5 expense for reports or otherwme from outside services. will be billed to the City. Charges for
meeting and consutf" with counsel. the City, or other parties regarding services not o-sf~d in floe scope at
services will be at W'illdan's hourly rates. In the event that a third party requests any docwen% from
Wilidan,''Xilldan may charge such third party for providing said documents in accordance with Wiidan's
Applicable rate schedule. EFpenses shall not exceed two thousand firm hundred dollars ($4500).
Hourly Rates
Addreonat services may be authorrzed by the City of La ❑Lfmta and will be billed by WAdan at the NAkrMng
hourly consulLng rates
Title
Hourty Rate
Group Manager
$ 210
Principal Engineer
200
Principal Consultant
2011
Senior Project Manager
165
Project Manager
145
Senior Project Analyst
130
Senior Analyst
120
Analyst
100
Analyst Assistant
75
Property Owner Services Representative
55
Support Staff
s0
Exhibit B
Page 1 of 1
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, from February or March through October of each year.
Exhibit C
Page 1of1
Exhibit D
Special Requirements
None
Exhibit D
Page 1ofI
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.
Exhibit E
Page 1 of 6
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.
If coverage is maintained on a claims -made basis, Contracting Party shall
maintain such coverage for an additional period of three (3) years following
termination of the contract.
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.
Exhibit E
Page 2 of 6
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
Exhibit E
Page 3 of 6
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 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.
Exhibit E
Page 4 of 6
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 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 an
additional insured endorsement is required in these specifications applicable
Exhibit E
Page 5 of 6
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 E
Page 6 of 6
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
Exhibit F
Page 1 of 3
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
Exhibit F
Page 2 of 3
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 obligation 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.
Exhibit F
Page 3 of 3