RFP - Municipal Codification Services
MUNICIPAL CODIFICATION
SERVICES
REQUEST FOR
PROPOSALS
DUE BY:
NOVEMBER 13, 2020
BY 5 P.M.
REQUEST FOR PROPOSALS / QUALIFICATIONS
The City of La Quinta (City) seeks proposals from qualified firms to provide Municipal
Codification services for the City.
Project/Services Title: Municipal Codification Services
Issue Date: October 30, 2020
DUE DATE: November 13, 2020
Requesting Department: City Clerk’s Department
GENERAL TERMS AND CONDITIONS
1.SUBMISSION REQUIREMENTS
Proposals must be submitted via email and must bear original or electronic signatures.
Submissions may be up to 10 pages (excluding the cover page) which shall be delivered
via an email as a single document in a .PDF format, to the following contact:
City of La Quinta
Attn: Nichole Romane, Deputy City Clerk
78495 Calle Tampico
La Quinta, California 92253
Tel: (760) 777 – 7092
Email: nromane@LaQuintaCA.gov and CityClerkMail@LaQuintaCA.gov
Email Subject: RFP – Municipal Codification Services
2.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 are
considered non-responsive, and will be returned unopened.
3.QUESTIONS or REQUESTS FOR CLARIFICATIONS
Any requests for clarification or other questions concerning this RFP must be submitted in
writing by November 5, 2020; and sent via email to Nichole Romane, Deputy City
Clerk, nromane@laquintaca.gov.
4.ERRORS AND OMISSIONS
If a proposer discovers any ambiguity, conflict, discrepancy, omission, or other error in the
RFP or any of its attachments, he/she shall immediately notify the City of such error in
writing and request modification or clarification of the document. Modifications will be made
by addenda. Clarifications will be provided in writing to all parties who have submitted
proposals or who have requested an RFP for purposes of preparing a proposal, without
divulging the source of the request.
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If a proposer fails to notify the City prior to the date fixed for submission of proposals of an
error in the RFP known to him/her, or an error that treasonably should have been known
to him/her, he/she shall submit a proposal at his/her own risk, and if he/she is awarded an
agreement, he/she shall not be entitled to additional compensation or time by reason of
the error or any corrections thereof.
5. MODIFICATIONS AND WITHDRAWALS OF SUBMITTED PROPOSALS
Proposer may withdraw proposals prior to the Submittal Deadline by submitting a written
request to Nichole Romane, Deputy City Clerk at nromane@LaQuintaCA.gov. 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 anew before the Submittal Deadline.
6. ADDENDA
The City may modify this RFP, any of its key action dates, or any of its attachments, prior
to the submittal deadline. Addenda will be numbered consecutively and noted following
the RFP title. It is the proposer’s responsibility to ensure they have incorporated all
addenda. Failure to acknowledge and incorporate addenda will not relieve the proposer
from the responsibility to meet all terms and conditions of the RFP and any subsequent
addenda.
7. REJECTION OF PROPOSALS
The City may reject any or all proposals in whole or in part for any reason, including
suspicion of collusion among proposers, and may waive any immaterial deviation in a
proposal. The City’s waiver of an immaterial defect shall in no way modify the RFP as
published or excuse the proposer from full compliance with the specifications if he/she is
awarded the agreement. Proposals referring to terms and conditions other than the City’s
terms and conditions as listed in the RFP, may be rejected as being non-responsive.
The City may conduct an investigation as deemed necessary to determine the ability of the
proposer to perform the work, and the proposer shall furnish to the City all such information
and data for this purpose as requested by the City. The City reserves the right to reject
any proposal if the evidence submitted by, or investigation of, such proposer fails to satisfy
the City that such proposer is properly qualified to carry out the obligations of the
agreement and to complete the work specified.
8. CANCELLATION OF RFP
This RFP does not obligate the City to enter into an agreement. The City reserves the right
to cancel this RFP at any time, should the project be cancelled, the City loses the required
funding, or it is deemed in the best interest of the City. No obligation, either expressed or
implied, exists on the part of the City to make an award or to pay any cost incurred in the
preparation or submission of a proposal.
9. DISPUTES/PROTESTS
The City encourages proposers to resolve issues regarding the requirements or the
procurement process through written correspondence and discussions during the period in
which clarifying addenda may be issued. The City wishes to foster cooperative relationships
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and to reach a fair agreement in a timely manner. Formal proposals for major professional
and technical services shall be governed by the City’s Purchasing Policy.
10. NEGOTIATIONS AND FINAL AGREEMENT
The City’s Agreement for Contract Services is enclosed as Attachment 1 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 proposal shall be
made a binding part of the agreement.
11. PRICING ADJUSTMENTS
The City reserves the right to negotiate final pricing with the most qualified proposer.
Pricing shall remain firm for the entire initial term of the agreement. Thereafter, any
proposed pricing adjustment for additional periods, if any, shall be subject to the terms of
the agreement.
12. SELECTION PROCESS
Proposals shall be reviewed and rated based on the information requested by this RFP, as
well as responses from references and clients, background checks, any research on
proposers, and 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 services.
13. RFP TIMELINE
RFP Issue Date:
October 30, 2020
Deadline for Proposers’ Questions:
November 5, 2020
City’s Response to Questions:
November 9, 2020
RFP Submittal Deadline:
November 13, 2020
Complete Evaluations of Proposals:
November 30, 2020
City Council Consideration and Approval December 15, 2020
Agreement Negotiations and Signing, Proof
of Insurance Coverage, Forms 700:
January 15, 2021
14. PROPRIETARY, CONFIDENTIAL, AND PUBLIC INFORMATION
14.1 Proprietary and Trade Secret Information:
A copy of each proposal will be retained as an official record and will become open
to public inspection, unless the proposal or specific parts can be shown to be exempt
by the California Public Records Act [California Government Code §6250 et seq.].
Each proposer may clearly label part of a proposal as “Confidential” if the proposer
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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 request for public records for labeled information is 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.
14.2 Confidential Information:
Evaluation scores, weight factors, and negotiation notes are confidential and will
not be released or retained [California Government Code §6254(a)].
14.3 Public Information:
All proposals will be opened on November 16, 2020, and will be made available to
the public upon request. By submitting a proposal, the proposer acknowledges and
accepts that the content of the proposal and associated documents will become open
to public inspection. The final, executed agreement will be a public document.
Proposals and other information will not be returned.
15. 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 entirely the responsibility of the proposer.
16. INSURANCE REQUIREMENTS and ACKNOWLEDGEMENT
Proposals must include a completed “Insurance Requirements Acknowledgment” form
included as Attachment 2 stating that, if selected, the proposer will provide the minimum
insurance coverage and indemnification noted in Exhibits E and F, respectively, of the City’s
Agreement for Contract Services.
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 Noncontributory
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)
Worker’s Compensation (per statutory requirements)
Must include the following endorsements:
Worker’s Compensation Waiver of Subrogation
Worker’s Compensation Declaration of Sole Proprietor if applicable
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17. NON-COLLUSION AFFIDAVIT
Proposals must include an executed Non-Collusion Affidavit, included as Attachment 3,
executed by an official authorized to bind the firm.
18. CONFLICT OF INTEREST
The City requires a Statement of Economic Interest (Form 700) to be filed by any proposer
who is involved in the making of decisions which may have a foreseeable material effect on
any City financial interest pursuant to the City’s Conflict of Interest Code and the California
Political Reform Act of 1974.
19. LOCAL BUSINESS PREFERENCE
Local vendors are encouraged, but not required. For purposes of this section, ‘local’ shall
be defined as an individual, partnership, or corporation, which regularly maintains a place
of business within a 40-mile radius of the City.
20. CITY RIGHTS AND OPTIONS
The City reserves the right to:
Make the selection based on its sole discretion;
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 irregulates 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.
REQUESTED SERVICES
The City of La Quinta (City) seeks proposals from qualified firms to provide Municipal
Codification services for the City including ongoing updates, maintenance, and publication
of the La Quinta Municipal Code both in print and electronically.
I. INTRODUCTION
The City is located 120 miles east of Los Angeles in the eastern portion of Riverside County
known as the Coachella Valley. The City is governed by a five-member City Council under
the Council/Manager form of government. The City was originally incorporated in 1982 as
a general law City, and became a charter city in November 1996.
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The current Code includes 16 titles, statutory references, ordinance list and disposition table
and index. The Code is approximately 567 pages, and a full electronic version of the existing
Code is available at http://qcode.us/codes/laquinta/.
II. SCOPE OF SERVICES
1. SUPPLEMENTAL SERVICES. The Codifier shall provide ongoing updates, on a
regular schedule, as directed by the City. Ordinances will be forwarded to Codifier as
they are adopted. Prior to beginning a regularly scheduled supplement, Codifier will
contact the City to confirm that Codifier has received all necessary ordinances.
Codifier will prepare each supplement by completing the following steps.
1.1 Editing. The Codifier will organize the new ordinances by subject and will
insert all amendments into their proper places in the Code text. Provisions that
have been repealed will be deleted from the Code text. New ordinances shall
be codified to match the format of the Code. Any conflicts, inconsistencies,
duplications, or discrepancies created by the new material shall be brought to
the attention of the City.
1.2 Proofreading/Review. The revised pages will be proofread against the
applicable ordinance to ensure accuracy of content. The Codifier is responsible
for the typographical correctness of the supplemental material. Any errors
attributable to the Codifier will be corrected at no charge to the City. The
Codifier will correct the error and ship the replacement pages to the City within
five (5) working days of notification of the error, unless the City requests the
errors be corrected, at no charge, in the next regularly scheduled supplement.
1.3 Update Related Parts. All history, notes, tables, cross-references, and index
entries will be updated to reflect the new material.
1.4 Publish Supplement Pages. The revised pages will be typeset to match the
style and format of the Code. The Codifier will provide five (5) printed copies
of the supplement.
1.5 Insertion Guide. Each supplement will include a page with instructions for
inserting the new pages and removing obsolete ones.
1.6 Frequency. The City may choose to supplement the Code quarterly, semi-
annually, annually, or an “as-needed” basis. The City may change the
supplement interval at any time. Frequency of supplementation does not affect
the supplement rate.
1.7 Termination. The City may terminate the supplement services as outlined in
Section 8 of the Agreement for Contract Services (Attachment 1).
1.8 Sale of Code. The City prohibits sale of the La Quinta Municipal Code to a
third party.
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2. ELECTRONIC PUBLISHING & INTERNET SERVICES. Codifier shall create a
searchable Internet database for posting on Codifier’s website with a link to the City’s
website. Upon code update, the Codifier shall post changes to the Code on the
Internet. Online services shall provide the user with the option of viewing and printing
the Code by chapter and section. No license shall be required to access the website.
The Codifier’s online version shall be responsive for all types of devices as well and
shall include a mobile version allowing the Code to be easily accessed via tablets and
phones.
2.1 Online Code Updating Service. The Codifier shall provide the City with
information on any service they provide that notifies the code user when a
particular section of the Code has been amended, added or repealed with an
“Alert” at the beginning of the title, chapter, and section and provides a link
to both the actual ordinance and a chronological list of ordinances adopted,
but not yet codified into the Code.
2.2 Search Results Display. The search engine shall display search results by
code section including the section heading and search term highlighting.
2.3 Imbedded Links. The Codifier shall provide links imbedded in the Code when
there are other sections of the Code being cross referenced and provide a
“quick view” of the referenced section by simply hovering the mouse over the
link.
2.4 Electronic Copy of Code on thumb drive. The Codifier shall provide an
electronic copy of the Code preferably on a thumb drive, or any other
comparable electronic media, after each supplement. The electronic media will
contain the entire updated code in MS Word format and a PDF file containing
the exact images of the supplement pages.
3. SCHEDULE FOR COMPLETION. The Codifier shall include an estimated turnaround
time for on-going supplemental services.
4. ADDITIONAL RECOMMENDATIONS. Codifier may list any additional products,
services, or features not covered in the Scope of Services that they believe would be
beneficial to the City.
5. CODE ANALYSIS AND REVIEW.
5.1 Materials. Codifier’s attorneys, who shall be familiar with California Law, will
carefully organize and review the City’s materials, if any; all existing
ordinances of a general and permanent nature or which impose a fine, penalty
or forfeiture; and the City’s current Code. The City will provide legible copies
of all materials necessary for the review.
5.2 Charter Comparison. Codifier shall compare the Code against the City
Charter and amendments to identify any conflicts and discrepancies.
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5.3 Statutory and Case Law Comparison. Every ordinance and code provision
will be compared against state statutes and current federal and state case
laws to identify conflicts, inconsistencies, preemptions, and other potential
problems.
5.4 Internal Comparison. The Code and ordinances will be examined for internal
discrepancies such as outdated fees, vague or awkward language,
inaccuracies, duplications, and conflicts with other ordinances.
5.5 Report. The results of the above will be presented to the City in a written
report for review at the convenience of the City’s representatives. Where
conflicts, problems or inconsistencies are noted, Codifier’s attorneys will
include relevant statutory or case citations, plus specific recommendations for
corrective measures.
III. 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”
explanation of technical terms that are used. Emphasis should be on completeness and
clarity of content.
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 proposals can be accurately compared.
1. Cover Letter
Signed by an official authorized to bind the firm with name, address, phone number,
and email address of firm’s contract person, location of firm’s main office, location of
the office that would service this project, a validity statement 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 is free of any conflict of interest.
Firms Background, Qualifications, and Experience, including the following:
(a) Number of years in business
(b) Taxpayer identification number
(c) Number of years performing Municipal Codification Services
(d) Resumes of the Project Manager and key personnel who will be responsible for
performance if any agreement results from this RFP
(e) Firm ownership and if incorporated, list the state in which the firm is
incorporated and the date of incorporation
(f) If the firm is a subsidiary of a parent company, identify the parent company
2. References of California government agencies (preferably cities utilizing)
(a) Client name, client project manager, telephone number, and email address
(b) Project description
(c) Project start date, and end date
(d) Staff assigned to each project by the firm
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(e) Provide a summary of final outcome
3. Complete Pricing List (or Fee Schedule)
Proposal shall include a detailed fee schedule for the services requested by this RFP.
4. List of Complementary Services Offered by Proposer along with
Corresponding Prices
5. Staffing and Project Organization
6. Subcontracting Services
Subcontracting 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.
7. 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 (5) years. If there is
no information to disclose, proposer must affirmatively state there is no negative
history.
8. Acknowledgement of Insurance Requirements (Attachment 2)
Proposals must include a written statement that, if selected, the proposer will provide
the minimum insurance coverage and indemnification noted in Exhibits E and F,
respectively, of the City’s Agreement for Contract Services included as Attachment 1.
9. Non-Collusion Affidavit (Attachment 3)
Proposals must include an executed Non-Collusion Affidavit, included as Attachment
3, executed by an official authorized to bind the firm.
10. Acknowledgement of Addenda (Attachment 4)
If any addendum/addenda are issued, the proposer shall initial the Acknowledgement
of Addenda, included as Attachment 4.
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ATTACHMENTS
1. Agreement for Contract Services
2. Insurance Requirements Acknowledgement
Must be executed by proposer and submitted with the proposal
3. Non-Collusion Affidavit
Must be executed by proposer and submitted with the proposal
4. Addenda Acknowledgement
Must be executed by proposer and submitted with the proposal
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 Name[insert the type of business
entity, e.g. sole proprietorship, CA Limited Liability Corp, an S Corp.]
(“Contracting Party”). The parties hereto agree as follows:
1. SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions
of this Agreement, Contracting Party shall provide those services related
______________________________, 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
ATTACHMENT 1
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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
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perform any Additional Services until receiving prior written authorization (in
the form of a written change order if Contracting Party is a contractor
performing the Services) from the Contract Officer, 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.
2. COMPENSATION.
2.1 Contract Sum. For the Services rendered pursuant to this
Agreement, Contracting Party shall be compensated in accordance with
“Exhibit B” (the “Schedule of Compensation”) in a total amount not to
exceed _____________________________ ($__________) per year for the
life of the Agreement, encompassing the initial and any extended terms. (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
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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, Contracting Party’s
overall compensation shall not exceed the Contract Sum, except as provided
in Section 1.7 of this Agreement.
2.2 Method of Billing & Payment. Any month in which Contracting
Party wishes to receive payment, Contracting Party shall submit to City no
later than the tenth (10th) working day of such month, in the form approved
by City’s Finance Director, an invoice for Services rendered prior to the date
of the invoice. Such invoice shall (1) describe in detail the Services
provided, including time and materials, and (2) specify each staff member
who has provided Services and the number of hours assigned to each such
staff member. Such invoice shall contain a certification by a principal
member of Contracting Party specifying that the payment requested is for
Services performed in accordance with the terms of this Agreement. Upon
approval in writing by the Contract Officer, 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.
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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.
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 ______________, and terminate on ____________ (“Initial
Term”). This Agreement may be extended for three (3) additional year(s)
upon mutual agreement by both parties (“Extended Term”).
4. COORDINATION OF WORK.
4.1 Representative of Contracting Party. The following principals of
Contracting Party (“Principals”) are hereby designated as being the principals
and representatives of Contracting Party authorized to act in its behalf with
respect to the Services specified herein and make all decisions in connection
therewith:
(a) Name
Telephone No.:
E-mail:
(b) Name
Telephone No.
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Email:
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
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 [ENTER NAME OF DEPARTMENT MANAGER OR 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
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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
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required for the satisfactory performance of any and all of the Services set
forth herein. Contracting Party represents that the Services required herein
will be performed by Contracting Party or under its direct supervision, and
that all personnel engaged in such work shall be fully qualified and shall be
authorized and permitted under applicable State and local law to perform
such tasks and services.
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
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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
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employment or additional compensation as a result of the exercise by City of
its full rights of ownership use, reuse, or assignment of the Documents and
Materials hereunder. Any use, reuse or assignment of such completed
Documents and Materials for other projects and/or use of uncompleted
documents without specific written authorization by Contracting Party will be
at City’s sole risk and without liability to Contracting Party, and Contracting
Party’s guarantee and warranties shall not extend to such use, revise, or
assignment. Contracting Party may retain copies of such Documents and
Materials for its own use. 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.
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7.7 Confidential or Personal Identifying Information. Contracting
Party covenants that all City data, data lists, trade secrets, documents with
personal identifying information, documents that are not public records,
draft documents, discussion notes, or other information, if any, developed or
received by Contracting Party or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Contracting Party to
any person or entity without prior written authorization by City or unless
required by law. City shall grant authorization for disclosure if required by
any lawful administrative or legal proceeding, court order, or similar
directive with the force of law. All City data, data lists, trade secrets,
documents with personal identifying information, documents that are not
public records, draft documents, discussions, or other information shall be
returned to City upon the termination or expiration of this Agreement.
Contracting Party’s covenant under this section shall survive the termination
or expiration of this Agreement.
8. ENFORCEMENT OF AGREEMENT.
8.1 California Law. This Agreement shall be interpreted, construed,
and governed both as to validity and to performance of the parties in
accordance with the laws of the State of California. Legal actions concerning
any dispute, claim, or matter arising out of or in relation to this Agreement
shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Contracting
Party covenants and agrees to submit to the personal jurisdiction of such
court in the event of such action.
8.2 Disputes. In the event of any dispute arising under this
Agreement, the injured party shall notify the injuring party in writing of its
contentions by submitting a claim therefore. The injured party shall
continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such
notice and completes the cure of such default within forty-five (45) days
after service of the notice, or such longer period as may be permitted by the
Contract Officer, 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
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invoices. In the alternative, City may, in its sole discretion, elect to pay
some or all of the outstanding invoices during any period of default.
8.3 Retention of Funds. City may withhold from any monies payable
to Contracting Party sufficient funds to compensate City for any losses,
costs, liabilities, or damages it reasonably believes were suffered by City due
to the default of Contracting Party in the performance of the Services
required by this Agreement.
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.
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8.8 Termination for Default of Contracting Party. If termination is
due to the failure of Contracting Party to fulfill its obligations under this
Agreement, Contracting Party shall vacate any City-owned property which
Contracting Party is permitted to occupy hereunder and City may, after
compliance with the provisions of Section 8.2, take over the Services and
prosecute the same to completion by contract or otherwise, and Contracting
Party shall be liable to the extent that the total cost for completion of the
Services required hereunder exceeds the compensation herein stipulated
(provided that City shall use reasonable efforts to mitigate such damages),
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
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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.
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: Insert Contract Officer
78495 Calle Tampico
La Quinta, California 92253
To Contracting Party:
VENDORS COMPANY NAME
VENDORS CONTACT
VENDORS STREET ADDRESS
VENDORS CITY, STATE, ZIP
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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.
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
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effective at the time City renders final payment to Contracting Party without
further acknowledgment of the parties.
10.9 No Third-Party Beneficiaries. With the exception of the specific
provisions set forth in this Agreement, there are no intended third-party
beneficiaries under this Agreement and no such other third parties shall have
any rights or obligations hereunder.
10.10 Authority. The persons executing this Agreement on behalf of
each of the parties hereto represent and warrant that (i) such party is duly
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
JON McMILLEN, City Manager
City of La Quinta, California
Dated:
CONTRACTING PARTY:
By:
Name:
Title:
ATTEST:
MONIKA RADEVA, City Clerk
La Quinta, California
By:
Name:
Title:
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
Exhibit A
Page 1 of 5 Last revised summer 2017
Exhibit A
Scope of Services
1. Services to be Provided:
2. Performance Standards:
Exhibit A
Page 2 of 5
ADDENDUM TO AGREEMENT
Re: Scope of Services
If the Scope of Services include construction, alteration, demolition,
installation, repair, or maintenance affecting real property or structures or
improvements of any kind appurtenant to real property, the following apply:
1. Prevailing Wage Compliance. If Contracting Party is a contractor
performing public works and maintenance projects, as described in this
Section 1.3, Contracting Party shall comply with applicable Federal, State,
and local laws. Contracting Party is aware of the requirements of California
Labor Code Sections 1720, et seq., and 1770, et seq., as well as California
Code of Regulations, Title 8, Sections 16000, et seq., (collectively, the
“Prevailing Wage Laws”), and La Quinta Municipal Code Section 3.12.040,
which require the payment of prevailing wage rates and the performance of
other requirements on “Public works” and “Maintenance” projects. If the
Services are being performed as part of an applicable “Public works” or
“Maintenance” project, as defined by the Prevailing Wage Laws, and if
construction work over twenty-five thousand dollars ($25,000.00) and/or
alterations, demolition, repair or maintenance work over fifteen thousand
dollars ($15,000.00) is entered into or extended on or after January 1, 2015
by this Agreement, Contracting Party agrees to fully comply with such
Prevailing Wage Laws including, but not limited to, requirements related to
the maintenance of payroll records and the employment of apprentices.
Pursuant to California Labor Code Section 1725.5, no contractor or
subcontractor may be awarded a contract for public work on a “Public works”
project unless registered with the California Department of Industrial
Relations (“DIR”) at the time the contract is awarded. If the Services are
being performed as part of an applicable “Public works” or “Maintenance”
project, as defined by the Prevailing Wage Laws, this project is subject to
compliance monitoring and enforcement by the DIR. Contracting Party will
maintain and will require all subcontractors to maintain valid and current
DIR Public Works contractor registration during the term of this Agreement.
Contracting Party shall notify City in writing immediately, and in no case
more than twenty-four (24) hours, after receiving any information that
Contracting Party’s or any of its subcontractor’s DIR registration status has
been suspended, revoked, expired, or otherwise changed. It is understood
that it is the responsibility of Contracting Party to determine the correct
salary scale. Contracting Party shall make copies of the prevailing rates of
per diem wages for each craft, classification, or type of worker needed to
execute the Services available to interested parties upon request, and shall
post copies at Contracting Party’s principal place of business and at the
project site, if any. The statutory penalties for failure to pay prevailing wage
or to comply with State wage and hour laws will be enforced. Contracting
Exhibit A
Page 3 of 5
Party must forfeit to City TWENTY-FIVE DOLLARS ($25.00) per day for each
worker who works in excess of the minimum working hours when
Contracting Party does not pay overtime. In accordance with the provisions
of Labor Code Sections 1810 et seq., eight (8) hours is the legal working
day. Contracting Party also shall comply with State law requirements to
maintain payroll records and shall provide for certified records and
inspection of records as required by California Labor Code Section 1770 et
seq., including Section 1776. In addition to the other indemnities provided
under this Agreement, Contracting Party shall defend (with counsel selected
by City), indemnify, and hold City, its elected officials, officers, employees,
and agents free and harmless from any claim or liability arising out of any
failure or alleged failure to comply with the Prevailing Wage Laws. It is
agreed by the parties that, in connection with performance of the Services,
including, without limitation, any and all “Public works” (as defined by the
Prevailing Wage Laws), Contracting Party shall bear all risks of payment or
non-payment of prevailing wages under California law and/or the
implementation of Labor Code Section 1781, as the same may be amended
from time to time, and/or any other similar law. Contracting Party
acknowledges and agrees that it shall be independently responsible for
reviewing the applicable laws and regulations and effectuating compliance
with such laws. Contracting Party shall require the same of all
subcontractors.
2. Retention. Payments shall be made in accordance with the
provisions of Article 2.0 of the Agreement. In accordance with said Sections,
City shall pay Contracting Party a sum based upon ninety-five percent (95%)
of the Contract Sum apportionment of the labor and materials incorporated
into the Services under this Agreement during the month covered by said
invoice. The remaining five percent (5%) thereof shall be retained as
performance security to be paid to Contracting Party within sixty (60) days
after final acceptance of the Services by the City Council of City, after
Contracting Party has furnished City with a full release of all undisputed
payments under this Agreement, if required by City. In the event there are
any claims specifically excluded by Contracting Party from the operation of
the release, City may retain proceeds (per Public Contract Code § 7107) of
up to one hundred fifty percent (150%) of the amount in dispute. City’s
failure to deduct or withhold shall not affect Contracting Party’s obligations
under the Agreement.
3. Utility Relocation. City is responsible for removal, relocation, or
protection of existing main or trunk-line utilities to the extent such utilities
were not identified in the invitation for bids or specifications. City shall
reimburse Contracting Party for any costs incurred in locating, repairing
damage not caused by Contracting Party, and removing or relocating such
Exhibit A
Page 4 of 5
unidentified utility facilities. Contracting Party shall not be assessed
liquidated damages for delay arising from the removal or relocation of such
unidentified utility facilities.
4. Trenches or Excavations. Pursuant to California Public Contract
Code Section 7104, in the event the work included in this Agreement
requires excavations more than four (4) feet in depth, the following shall
apply:
(a) Contracting Party shall promptly, and before the following
conditions are disturbed, notify City, in writing, of any: (1) material that
Contracting Party believes may be material that is hazardous waste, as
defined in Section 25117 of the Health and Safety Code, that is required to
be removed to a Class I, Class II, or Class III disposal site in accordance
with provisions of existing law; (2) subsurface or latent physical conditions
at the site different from those indicated by information about the site made
available to bidders prior to the deadline for submitting bids; or (3) unknown
physical conditions at the site of any unusual nature, different materially
from those ordinarily encountered and generally recognized as inherent in
work of the character provided for in the Agreement.
(b) City shall promptly investigate the conditions, and if it
finds that the conditions do materially so differ, or do involve hazardous
waste, and cause a decrease or increase in Contracting Party’s cost of, or
the time required for, performance of any part of the work shall issue a
change order per Section 1.8 of the Agreement.
(c) in the event that a dispute arises between City and
Contracting Party whether the conditions materially differ, or involve
hazardous waste, or cause a decrease or increase in Contracting Party’s cost
of, or time required for, performance of any part of the work, Contracting
Party shall not be excused from any scheduled completion date provided for
by this Agreement, but shall proceed with all work to be performed under
this Agreement. Contracting Party shall retain any and all rights provided
either by contract or by law which pertain to the resolution of disputes and
protests between the contracting Parties.
5. Safety. Contracting Party shall execute and maintain its work so
as to avoid injury or damage to any person or property. In carrying out the
Services, Contracting Party shall at all times be in compliance with all
applicable local, state, and federal laws, rules and regulations, and shall
exercise all necessary precautions for the safety of employees appropriate to
the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be
limited to: (A) adequate life protection and lifesaving equipment and
Exhibit A
Page 5 of 5
procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders,
bridges, gang planks, confined space procedures, trenching and shoring,
equipment and other safety devices, equipment and wearing apparel as are
necessary or lawfully required to prevent accidents or injuries; and
(C) adequate facilities for the proper inspection and maintenance of all
safety measures.
6. Liquidated Damages. Since the determination of actual damages
for any delay in performance of the Agreement would be extremely difficult
or impractical to determine in the event of a breach of this Agreement,
Contracting Party shall be liable for and shall pay to City the sum of One
Thousand dollars ($1,000.00) as liquidated damages for each working day of
delay in the performance of any of the Services required hereunder, as
specified in the Schedule of Performance. In addition, liquidated damages
may be assessed for failure to comply with the emergency call out
requirements, if any, described in the Scope of Services. City may withhold
from any moneys payable on account of the Services performed by
Contracting Party any accrued liquidated damages.
Exhibit B
Page 1 of 1
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for
in Section 2.3 of this Agreement, the maximum total compensation to be
paid to Contracting Party under this Agreement is not to exceed
______________________ ($ __________) (“Contract Sum”). The
Contract Sum shall be paid to Contracting Party in installment payments
made on a monthly basis and in an amount identified in Contracting Party’s
schedule of compensation attached hereto for the work tasks performed and
properly invoiced by Contracting Party in conformance with Section 2.2 of
this Agreement.
Exhibit C
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, attached hereto and incorporated herein by this reference.
Exhibit D
Page 1 of 1
Exhibit D
Special Requirements
[insert Special Requirements or indicate “None” if there are none]
Exhibit E
Page 1 of 7
Exhibit E
Insurance Requirements
E.1 Insurance. Prior to the beginning of and throughout the duration of
this Agreement, the following policies shall be maintained and kept in full force
and effect providing insurance with minimum limits as indicated below and
issued by insurers with A.M. Best ratings of no less than A-VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers’ Compensation
(per statutory requirements)
Must include the following endorsements:
Workers Compensation with Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if applicable
Contracting Party shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, Commercial General
Liability insurance against all claims for injuries against persons or damages
to property resulting from Contracting Party’s acts or omissions rising out of
or related to Contracting Party’s performance under this Agreement. The
insurance policy shall contain a severability of interest clause providing that
the coverage shall be primary for losses arising out of Contracting Party’s
performance hereunder and neither City nor its insurers shall be required to
contribute to any such loss. An endorsement evidencing the foregoing and
naming the City and its officers and employees as additional insured (on the
Commercial General Liability policy only) must be submitted concurrently with
the execution of this Agreement and approved by City prior to commencement
of the services hereunder.
Contracting Party shall carry automobile liability insurance of
$1,000,000 per accident against all claims for injuries against persons or
Exhibit E
Page 2 of 7
damages to property arising out of the use of any automobile by Contracting
Party, its officers, any person directly or indirectly employed by Contracting
Party, any subcontractor or agent, or anyone for whose acts any of them may
be liable, arising directly or indirectly out of or related to Contracting Party’s
performance under this Agreement. If Contracting Party or Contracting
Party’s employees will use personal autos in any way on this project,
Contracting Party shall provide evidence of personal auto liability coverage for
each such person. The term “automobile” includes, but is not limited to, a
land motor vehicle, trailer or semi-trailer designed for travel on public roads.
The automobile insurance policy shall contain a severability of interest clause
providing that coverage shall be primary for losses arising out of Contracting
Party’s performance hereunder and neither City nor its insurers shall be
required to contribute to such loss.
Professional Liability or Errors and Omissions Insurance as
appropriate shall be written on a policy form coverage specifically designed to
protect against acts, errors or omissions of the Contracting Party and “Covered
Professional Services” as designated in the policy must specifically include
work performed under this agreement. The policy limit shall be no less than
$1,000,000 per claim and in the aggregate. The policy must “pay on behalf
of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of
this agreement.
Contracting Party shall carry Workers’ Compensation Insurance in
accordance with State Worker’s Compensation laws with employer’s liability
limits no less than $1,000,000 per accident or disease.
Contracting Party shall procure and maintain Cyber Liability
insurance with limits of $1,000,000 per occurrence/loss which shall include
the following coverage:
a. Liability arising from the theft, dissemination and/or use of
confidential or personally identifiable information; including credit
monitoring and regulatory fines arising from such theft,
dissemination or use of the confidential information.
b. Network security liability arising from the unauthorized use of,
access to, or tampering with computer systems.
c. Liability arising from the failure of technology products (software)
required under the contract for Consultant to properly perform
the services intended.
Exhibit E
Page 3 of 7
d. Electronic Media Liability arising from personal injury, plagiarism
or misappropriation of ideas, domain name infringement or
improper deep-linking or framing, and infringement or violation
of intellectual property rights.
e. Liability arising from the failure to render professional services.
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.
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.
Exhibit E
Page 4 of 7
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.
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.
All insurance coverage and limits provided by Contracting Party and
available or applicable to this Agreement are intended to apply to the full
extent of the policies. Nothing contained in this Agreement or any other
agreement relating to City or its operations limits the application of such
insurance coverage.
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.
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.
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.
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
Exhibit E
Page 5 of 7
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.
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.
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.
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.
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.
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.
Contracting Party acknowledges and agrees that any actual or alleged
failure on the part of City to inform Contracting Party of non-compliance with
Exhibit E
Page 6 of 7
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.
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.
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 to the renewing or
new coverage must be provided to City within five (5) days of the expiration
of coverages.
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.
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.
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.
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.
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
Exhibit E
Page 7 of 7
the cost of complying with these requirements. There shall be no recourse
against City for payment of premiums or other amounts with respect thereto.
Contracting Party agrees to provide immediate notice to City of any
claim or loss against Contracting Party arising out of the work performed under
this agreement. City assumes no obligation or liability by such notice, but has
the right (but not the duty) to monitor the handling of any such claim or claims
if they are likely to involve City.
Exhibit F
Page 1 of 3
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 2 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 3 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.
Page 47 of 49
ATTACHMENT 2
INSURANCE REQUIREMENTS ACKNOWLEDGEMENT
Must be executed by proposer and submitted with the proposal
I, ________________________________________ (name) hereby acknowledge and
confirm that __________________________________ (name of company) has reviewed
the City’s indemnification and minimum insurance requirements as listed in Exhibits E and
F of the City’s Agreement for Contract Services (Attachment 1); and declare that insurance
certificates and endorsements verifying compliance will be provided if an agreement is
awarded.
I am _________________________________ of ______________________________,
(Title) (Company)
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 Noncontributory
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)
Worker’s Compensation (per statutory requirements)
Must include the following endorsements:
Worker’s Compensation Waiver of Subrogation
Worker’s Compensation Declaration of Sole Proprietor if applicable
Page 48 of 49
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 all 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: __________________________________________________
Page 49 of 49
ATTACHMENT 4
ACKNOWLEDGEMENT OF RECEIPT OF ADDENDA
Must be executed by proposer and submitted with the proposal;
If no addenda has been issued, mark “N/A” under Addendum No. indicating
Not Applicable and sign
ADDENDUM NO. SIGNATURE INDICATING RECEIPT