HomeMy WebLinkAbout2011-05_TY Lin International CMI Contract_Draft_NAI Edits
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 TY Lin International, A Corporation (“Contracting
Party”). The parties hereto agree as follows:
1. SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions of
this Agreement, Contracting Party shall provide those services related to
Construction Management, Inspection, Material Testing, and Survey Services
for the Dune Palms Road Bridge Project (Federal Project No. BRKLS-
5433(014), City Project No. 2011-05), as specified in the “Scope of Services”
attached hereto as “Exhibit A” and incorporated herein by this reference (the
“Services”). Contracting Party represents and warrants that Contracting Party
is a provider of first-class work and/or services and Contracting Party is
experienced in performing the Services contemplated herein and, in light of
such status and experience, Contracting Party covenants that it shall follow
industry standards in performing the Services required hereunder, and that
all materials, if any, will be of good quality, fit for the purpose intended. For
purposes of this Agreement, the phrase “industry standards” shall mean those
standards of practice recognized by one or more first-class firms performing
similar services under similar circumstances.
1.2 Compliance with Law. All Services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules,
regulations, and laws of the City and any Federal, State, or local governmental
agency of competent jurisdiction.
1.3 Wage and Hour Compliance, Contracting Party shall comply with
applicable Federal, State, and local wage and hour laws.
1.4 Licenses, Permits, Fees and Assessments. Except as otherwise
specified herein, Contracting Party shall obtain at its sole cost and expense
such licenses, permits, and approvals as may be required by law for the
performance of the Services required by this Agreement, including a City of
La Quinta business license. Contracting Party and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times
during the term of this Agreement any licenses, permits, and approvals that
are legally required for the performance of the Services required by this
Agreement. Contracting Party shall have the sole obligation to pay for any
fees, assessments, and taxes, plus applicable penalties and interest, which
may be imposed by law and arise from or are necessary for the performance
of the Services required by this Agreement, and shall indemnify, defend (with
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counsel selected by City), and hold City, its elected officials, officers,
employees, and agents, free and harmless against any such fees,
assessments, taxes, penalties, or interest levied, assessed, or imposed
against City hereunder. Contracting Party shall be responsible for all
subcontractors’ compliance with this Section.
1.5 Familiarity with Work. By executing this Agreement, Contracting
Party warrants that (a) it has thoroughly investigated and considered the
Services to be performed, (b) it has investigated the site where the Services
are to be performed, if any, and fully acquainted itself with the conditions
there existing, (c) it has carefully considered how the Services should be
performed, and (d) it fully understands the facilities, difficulties, and
restrictions attending performance of the Services under this Agreement.
Should Contracting Party discover any latent or unknown conditions materially
differing from those inherent in the Services or as represented by City,
Contracting Party shall immediately inform City of such fact and shall not
proceed except at Contracting Party’s risk until written instructions are
received from the Contract Officer, or assigned designee (as defined in
Section 4.2 hereof).
1.6 Standard of Care. Contracting Party acknowledges and
understands that the Services contracted for under this Agreement require
specialized skills and abilities and that, consistent with this understanding,
Contracting Party’s work will be held to an industry standard of quality and
workmanship. Consistent with Section 1.5 hereinabove, Contracting Party
represents to City that it holds the necessary skills and abilities to satisfy the
industry standard of quality as set forth in this Agreement. Contracting Party
shall adopt reasonable methods during the life of this Agreement to furnish
continuous protection to the Services performed by Contracting Party, and the
equipment, materials, papers, and other components thereof to prevent losses
or damages, and shall be responsible for all such damages, to persons or
property, until acceptance of the Services by City, except such losses or
damages as may be caused by City’s own negligence. The performance of
Services by Contracting Party shall not relieve Contracting Party from any
obligation to correct any incomplete, inaccurate, or defective work at no
further cost to City, when such inaccuracies are due to the negligence of
Contracting Party.
1.7 Additional Services. In accordance with the terms and conditions
of this Agreement, Contracting Party shall perform services in addition to
those specified in the Scope of Services (“Additional Services”) only when
directed to do so by the Contract Officer, or assigned designee, provided
that Contracting Party shall not be required to perform any Additional Services
without compensation. Contracting Party shall not perform any Additional
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Services until receiving prior written authorization (in the form of a written
change order if Contracting Party is a contractor performing the Services) from
the Contract Officer, 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 2.4
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 based on actual cost plus
a fixed fee in accordance with “Exhibit B” (the “Schedule of Compensation”).
The total amount payable by City including the Fixed Fee, as provided in
Section 2.2, shall not exceed Two Million Seven Hundred and Sixty Four
Thousand Six Hundred Fifty Dollars and Sixty-Eight Cents ($ 2,764,650.68)
(the “Contract Sum”), except as provided in Section 1.7. The City will
reimburse Contracting Party for actual costs (including labor costs, employee
benefits, travel, equipment rental costs, overhead and other direct costs)
incurred by Contracting Party in performance of the work. Contracting Party
will not be reimbursed for actual costs that exceed the estimated wage rates,
employee benefits, travel, equipment rental, overhead, and other estimated
costs set forth in the Schedule of Compensation, except as provided in Section
1.7. In no event will Contracting Party be reimbursed for overhead costs at a
rate that exceeds City’s approved overhead rate set forth in the Schedule of
Compensation. The Contract Sum shall include the attendance of Contracting
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Party at all project meetings reasonably deemed necessary by City;
Contracting Party shall not be entitled to any additional compensation for
attending said meetings. Compensation may include reimbursement for
actual and necessary expenditures for reproduction costs, transportation
expense, telephone expense, and similar costs and expenses when and if
specified in the Schedule of Compensation. Contracting Party’s overall
compensation shall not exceed the Contract Sum, except as provided in
Section 1.7 of this Agreement.
2.2 Allowable Costs. The indirect cost rate established for this
Agreement is extended through the duration of this specific Agreement.
Contracting Party’s agreement to the extension of the 1-year applicable period
shall not be a condition or qualification to be considered for the work or
Agreement award. Reimbursement for transportation and subsistence costs
shall not exceed the rates specified in the Schedule of Compensation. When
milestone cost estimates are included in the Schedule of Compensation,
Contracting Party shall obtain prior written approval for a revised milestone
cost estimate from the Contract Officer before exceeding such cost estimate.
Salary increases will be reimbursable if the new salary is within the salary
range identified in the Schedule of Compensation and is approved by City’s
Contract Officer. For personnel subject to prevailing wage rates as described
in the California Labor Code, all salary increases, which are the direct result
of changes in the prevailing wage rates are reimbursable. In addition to the
allowable incurred costs, City will pay Contracting Party a fixed fee of One
Hundred Thirteen Thousand Eight Hundred Seventy Two Dollars and Seventy
Seven Cents ($113,872.77) (the “Fixed Fee”). The Fixed Fee is nonadjustable
for the term of the Agreement, except as provided for in Section 1.7.
2.3 Method of Billing & Payment. Progress payments will be made
monthly in arrears based on services provided and allowable incurred costs. A
pro rata portion of the Fixed Fee will be included in the monthly progress
payments. 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. Invoices shall be
submitted no later than thirty (30) calendar days after the performance of
work for which Contracting Party is billing. Invoices shall detail the work
performed on each milestone and each project as applicable. Invoices shall
follow the format stipulated in the Schedule of Compensation and shall
reference this Agreement number (or City project number for which this
Agreement applies) and project title. Invoices 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
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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. If Contracting Party fails to submit
the required deliverable items according to the schedule set forth in Section
3.2, City shall have the right to delay payment or terminate this Agreement.
No payment will be made prior to approval of any work, nor for any work
performed prior to approval of this Agreement. The final invoice must contain
the final cost and all credits due City including any equipment purchased under
the provisions of Section 13.8. Except as provided for Section 10.3, the final
invoice should be submitted within sixty (60) calendar days after completion
of Contracting Party’s work.
2.4 Compensation for Additional Services. Additional Services
approved in advance by the Contract Officer, or assigned designee, pursuant
to Section 1.7 of this Agreement shall be paid for in an amount agreed to in
writing by both City and Contracting Party in advance of the Additional
Services being rendered by Contracting Party. Any compensation for
Additional Services amounting to five percent (5%) or less of the Contract
Sum may be approved by the Contract Officer, or assigned designee. Any
greater amount of compensation for Additional Services must be approved by
the La Quinta City Council, the City Manager, or Department Director,
depending upon City laws, regulations, rules and procedures concerning public
contracting. Under no circumstances shall Contracting Party receive
compensation for any Additional Services unless prior written approval for the
Additional Services is obtained from the Contract Officer, or assigned
designee, pursuant to Section 1.7 of this Agreement.
3. PERFORMANCE SCHEDULE.
3.1 Time of Essence. Time is of the essence in the performance of
this Agreement. If the Services not completed in accordance with the
Schedule of Performance, as set forth in Section 3.2 and “Exhibit C”, it is
understood that the City will suffer damage.
3.2 Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period
established in “Exhibit C” (the “Schedule of Performance”). Extensions to the
time period specified in the Schedule of Performance may be approved in
writing by the Contract Officer, or assigned designee.
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
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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 Section 8.0 of this Agreement, the term of this agreement shall commence
on February 16, 2022, contingent upon approval by City, and Contracting
Party shall commence work after notification to proceed by City’s Contract
Officer. The Agreement shall terminate on June 30, 2026 unless extended by
an Amendment to this Agreement. Contracting Party is advised that any
recommendation for Agreement award is not binding on City until the
Agreement is fully executed and approved by City.
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] Joseph Smith
Tel No. 619.908.3306
E-mail: joseph.smith@tylin.com
It is expressly understood that the experience, knowledge, capability, and
reputation of the foregoing Principals were a substantial inducement for City
to enter into this Agreement. Therefore, the foregoing Principals shall be
responsible during the term of this Agreement for directing all activities of
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.
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4.2 Contract Officer. The “Contract Officer”, otherwise known as
the Bryan McKinney, Public Works Director/City Engineer or assigned
designee may be designated in writing by the City Manager of the City. It
shall be Contracting Party’s responsibility to assure that the Contract Officer,
or assigned designee, is kept informed of the progress of the performance
of the Services, and Contracting Party shall refer any decisions, that must be
made by City to the Contract Officer, or assigned designee. Unless
otherwise specified herein, any approval of City required hereunder shall mean
the approval of the Contract Officer, or assigned designee. The Contract
Officer, or assigned designee, shall have authority to sign all documents on
behalf of City required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The
experience, knowledge, capability, and reputation of Contracting Party, its
principals, and its employees were a substantial inducement for City to enter
into this Agreement. Except as set forth in this Agreement, Contracting Party
shall not contract or subcontract with any other entity to perform in whole or
in part the Services required hereunder without the express written approval
of City. In addition, neither this Agreement nor any interest herein may be
transferred, assigned, conveyed, hypothecated, or encumbered, voluntarily or
by operation of law, without the prior written approval of City. Transfers
restricted hereunder shall include the transfer to any person or group of
persons acting in concert of more than twenty five percent (25%) of the
present ownership and/or control of Contracting Party, taking all transfers into
account on a cumulative basis. Any attempted or purported assignment or
contracting or subcontracting by Contracting Party without City’s express
written approval shall be null, void, and of no effect. No approved transfer
shall release Contracting Party of any liability hereunder without the express
consent of City.
4.4 Independent Contractor. Neither City nor any of its employees
shall have any control over the manner, mode, or means by which Contracting
Party, its agents, or its employees, perform the Services required herein,
except as otherwise set forth herein. City shall have no voice in the selection,
discharge, supervision, or control of Contracting Party’s employees, servants,
representatives, or agents, or in fixing their number or hours of service.
Contracting Party shall perform all Services required herein as an independent
contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role.
Contracting Party shall not at any time or in any manner represent that it or
any of its agents or employees are agents or employees of City. City shall not
in any way or for any purpose become or be deemed to be a partner of
Contracting Party in its business or otherwise or a joint venture or a member
of any joint enterprise with Contracting Party. Contracting Party shall have
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no power to incur any debt, obligation, or liability on behalf of City.
Contracting Party shall not at any time or in any manner represent that it or
any of its agents or employees are agents or employees of City. Except for
the Contract Sum paid to Contracting Party as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Contracting Party
for performing the Services hereunder for City. City shall not be liable for
compensation or indemnification to Contracting Party for injury or sickness
arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the
contrary, Contracting Party and any of its employees, agents, and
subcontractors providing services under this Agreement shall not qualify for
or become entitled to any compensation, benefit, or any incident of
employment by City, including but not limited to eligibility to enroll in the
California Public Employees Retirement System (“PERS”) as an employee of
City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits. Contracting
Party agrees to pay all required taxes on amounts paid to Contracting Party
under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason
of the independent contractor relationship created by this Agreement.
Contracting Party shall fully comply with the workers’ compensation laws
regarding Contracting Party and Contracting Party’s employees. Contracting
Party further agrees to indemnify and hold City harmless from any failure of
Contracting Party to comply with applicable workers’ compensation laws. City
shall have the right to offset against the amount of any payment due to
Contracting Party under this Agreement any amount due to City from
Contracting Party as a result of Contracting Party’s failure to promptly pay to
City any reimbursement or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Contracting Party
represents that it employs or will employ at its own expense all personnel
required for the satisfactory performance of any and all of the Services set
forth herein. Contracting Party represents that the Services required herein
will be performed by Contracting Party or under its direct supervision, and
that all personnel engaged in such work shall be fully qualified and shall be
authorized and permitted under applicable State and local law to perform such
tasks and services.
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.
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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’s Project Manager shall meet with City as necessary to discuss progress
on the Agreement. Contracting Party hereby acknowledges that City is greatly
concerned about the cost of the Services to be performed pursuant to this
Agreement. For this reason, Contracting Party agrees that if Contracting Party
becomes aware of any facts, circumstances, techniques, or events that may
or will materially increase or decrease the cost of the Services contemplated
herein or, if Contracting Party is providing design services, the cost of the
project being designed, Contracting Party shall promptly notify the Contract
Officer, or assigned designee, of said fact, circumstance, technique, or event
and the estimated increased or decreased cost related thereto and, if
Contracting Party is providing design services, the estimated increased or
decreased cost estimate for the project being designed.
7.2 Records. Contracting Party shall keep, and require any
subcontractors to keep, such ledgers, books of accounts, invoices, vouchers,
canceled checks, reports (including but not limited to payroll reports), studies,
Independent CPA Audited Indirect Cost Rate workpapers, or other documents
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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, including those of the Contracting Party’s
Independent CPA, shall be maintained in accordance with generally accepted
accounting principles and shall be complete and detailed. The Contract
Officer, Caltrans Auditor, FHWA or any duly authorized representative of the
Federal government having jurisdiction under Federal laws or regulations
(including the basis of Federal Funding in whole or in part), 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, examination, workpaper
review, excerpt, or transaction is required. In the event of dissolution of
Contracting Party’s business, custody of the Books and Records may be given
to City, and access shall be provided by Contracting Party’s successor in
interest. Under California Government Code Section 8546.7, if the amount of
public funds expended under this Agreement exceeds Ten Thousand Dollars
($10,000.00), this Agreement shall be subject to the examination and audit
of the State Auditor, at the request of City or as part of any audit of City, for
a period of three (3) years after final payment under this Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps,
designs, photographs, studies, surveys, data, notes, computer files, reports,
records, documents, and other materials plans, drawings, estimates, test
data, survey results, models, renderings, and other documents or works of
authorship fixed in any tangible medium of expression, including but not
limited to, physical drawings, digital renderings, or data stored digitally,
magnetically, or in any other medium prepared or caused to be prepared by
Contracting Party, its employees, subcontractors, and agents in the
performance of this Agreement (the “Documents and Materials”) shall be the
property of City and shall be delivered to City upon request of the Contract
Officer, or assigned designee, or upon the expiration or termination of this
Agreement, and Contracting Party shall have no claim for further employment
or additional compensation as a result of the exercise by City of its full rights
of ownership use, reuse, or assignment of the Documents and Materials
hereunder. Any use, reuse or assignment of such completed Documents and
Materials for other projects and/or use of uncompleted 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.
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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 In the event of Termination under Section 8.0, immediately upon
termination, City shall be entitled to, and Contracting Party shall deliver to
City, reports, investigations, appraisals, inventories, studies, analyses,
drawings and data estimates performed to that date, whether completed or
not, and other such materials as may have been prepared or accumulated to
date by Contracting Party in performing this Agreement which is not
Contracting Party’s privileged information, as defined by law, or Contracting
Party’s personnel information, along with all other property belonging
exclusively to City which is in Contracting Party’s possession.
7.6 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. Publication of the information derived from work performed or data
obtained in connection with services rendered under this Agreement must be
approved in writing by City. Additionally, it is agreed that the Parties intend
this to be an Agreement for services and each considers the products and
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results of the services to be rendered by Contracting Party hereunder to be
work made for hire. Contracting Party acknowledges and agrees that the work
(and all rights therein, including, without limitation, copyright) belongs to and
shall be the sole and exclusive property of City without restriction or limitation
upon its use or dissemination by City.
7.7 Release of Documents. The Documents and Materials shall not be
released publicly without the prior written approval of the Contract Officer, or
assigned designee, or as required by law. Contracting Party shall not
disclose to any other entity or person any information regarding the activities
of City, except as required by law or as authorized by City.
7.8 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. Permission to disclose information on one occasion, or public
hearing held by City relating to the Agreement, shall not authorize Contracting
Party to further disclose such information, or disseminate the same on any
other occasion. Contracting Party shall not comment publicly to the press or
any other media regarding the Agreement or City’s actions on the same,
except to City’s staff, Contracting Party’s own personnel involved in the
performance of this Agreement, at public hearings, or in response to questions
from a Legislative committee. Contracting Party shall not issue any news
release or public relations item of any nature, whatsoever, regarding work
performed or to be performed under this Agreement without prior review of
the contents thereof by City, and receipt of City’s written permission. 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
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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. Prior to either party commencing
any legal action under this Agreement, the parties agree to try in good faith,
to settle any dispute amicably between them. If a dispute has not been settled
after forty-five (45) days of good-faith negotiations and as may be otherwise
provided herein, then either party may commence legal action against the
other. 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
Section 8.0. During the period of time that Contracting Party is in default,
City shall hold all invoices and shall, when the default is cured, proceed with
payment on the invoices. In the alternative, City may, in its sole discretion,
elect to pay some or all of the outstanding invoices during any period of
default. Any dispute, other than audit, concerning a question of fact arising
under this Agreement that is not disposed of by agreement shall be decided
by a committee consisting of City’s Contract Officer and City Manager (or
authorized designee), who may consider written or verbal information
submitted by Contracting Party. Not later than thirty (30) calendar days after
completion of all work under the Agreement, Contracting Party may request
review by City Governing Board of unresolved claims or disputes, other than
audit. The request for review shall be submitted in writing. Neither the
pendency of a dispute, nor its consideration by the committee will excuse
Contracting Party from full and timely performance in accordance with the
terms of this Agreement. Audit Disputes shall be considered as provided for
Section 10.
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
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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. Upon termination, City shall be entitled to all work,
including but not limited to, reports, investigations, appraisals, inventories,
studies, analyses, drawings and data estimates performed to that date,
whether completed or not, and in accordance with Section 7.5. 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. Notwithstanding any provisions of this Agreement,
Contracting Party shall not be relieved of liability to City for damages sustained
by City by virtue of any breach of this Agreement by Contracting Party, and
City may withhold any payments due to Contracting Party until such time as
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the exact amount of damages, if any, due City from Contracting Party is
determined.
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.
8.10 Suspension of Work. City may temporarily suspend this
Agreement, at no additional cost to City, provided that Contracting Party is
given written notice (delivered by certified mail, return receipt requested) of
temporary suspension. If City gives such notice of temporary suspension,
Contracting Party shall immediately suspend its activities under this
Agreement. A temporary suspension may be issued concurrent with the notice
of termination provided for in this Section 8.0.
9. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION.
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
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or breach by City or for any amount which may become due to Contracting
Party or to its successor, or for breach of any obligation of the terms of this
Agreement.
9.2 Conflict of Interest. Contracting Party covenants that neither it,
nor any officer or principal of it, has or shall acquire any interest, directly or
indirectly, which would conflict in any manner with the interests of City or
which would in any way hinder Contracting Party’s performance of the
Services under this Agreement. Contracting Party further covenants that in
the performance of this Agreement, no person having any such interest shall
be employed by it as an officer, employee, agent, or subcontractor without
the express written consent of the Contract Officer, or assigned designee.
Contracting Party agrees to at all times avoid conflicts of interest or the
appearance of any conflicts of interest with the interests of City in the
performance of this Agreement. During the term of this Agreement, the
Contracting Party shall disclose any financial, business, or other relationship
with City that may have an impact upon the outcome of this Agreement or
any ensuing City construction project. The Contracting Party shall also list
current clients who may have a financial interest in the outcome of this
Agreement or any ensuing City construction project which will follow.
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.
Contracting Party certifies that it has disclosed to City any actual, apparent,
or potential conflicts of interest that may exist relative to the services to be
provided pursuant to this Agreement. Contracting Party agrees to advise City
of any actual, apparent or potential conflicts of interest that may develop
subsequent to the date of execution of this Agreement. Contracting Party
further agrees to complete any statements of economic interest if required by
either City ordinance or State law.
9.3 Covenants against Discrimination. The Contracting Party’s
signature affixed herein and dated shall constitute a certification under penalty
of perjury under the laws of the State of California that the Contracting Party
has, unless exempt, complied with the nondiscrimination program
requirements of Gov. Code §12990 and 2 CCR § 8103.
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During the performance of this Agreement, Contracting Party and its
subconsultants shall not deny the Agreement’s benefits to any person on the
basis of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age, sexual
orientation, or military and veteran status, nor shall they unlawfully
discriminate, harass, or allow harassment against any employee or applicant
for employment because of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender expression,
age, sexual orientation, or military and veteran status. Contracting Party and
subconsultants shall insure that the evaluation and treatment of their
employees and applicants for employment are free from such discrimination
and harassment.
Contracting Party and subconsultants shall comply with the provisions of the
Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable
regulations promulgated there under (2 CCR §11000 et seq.), the provisions
of Gov. Code §§11135-11139.5, and the regulations or standards adopted by
City to implement such article. The applicable regulations of the Fair
Employment and Housing Commission implementing Gov. Code §12990 (a-f),
set forth 2 CCR §§8100-8504, are incorporated into this Agreement by
reference and made a part hereof as if set forth in full. Contracting Party shall
permit access by representatives of the Department of Fair Employment and
Housing and the City upon reasonable notice at any time during the normal
business hours, but in no case less than twenty-four (24) hours’ notice, to
such of its books, records, accounts, and all other sources of information and
its facilities as said Department or City shall require to ascertain compliance
with this clause.
Contracting Party and its subconsultants shall give written notice of their
obligations under this clause to labor organizations with which they have a
collective bargaining or other Agreement.
Contracting Party shall include the nondiscrimination and compliance
provisions of this clause in all subcontracts to perform work under this
Agreement.
The Contracting Party, with regard to the work performed under this
Agreement, shall act in accordance with Title VI of the Civil Rights Act of 1964
(42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal
assistance will implement and maintain a policy of nondiscrimination in which
no person in the United States shall, on the basis of race, color, national origin,
religion, sex, age, disability, be excluded from participation in, denied the
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benefits of or subject to discrimination under any program or activity by the
recipients of federal assistance or their assignees and successors in interest.
The Contracting Party shall comply with regulations relative to non-
discrimination in federally-assisted programs of the U.S. Department of
Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act
of 1964). Specifically, the Contracting Party shall not participate either directly
or indirectly in the discrimination prohibited by 49 CFR §21.5, including
employment practices and the selection and retention of Subconsultants.
The Contracting Party, subrecipient or subconsultant will never exclude any
person from participation in, deny any person the benefits of, or otherwise
discriminate against anyone in connection with the award and performance of
any contract covered by 49 CFR 26 on the basis of race, color, sex, or national
origin. In administering the City components of the DBE Program Plan,
Contracting Party, subrecipient or subconsultant will not, directly, or through
contractual or other arrangements, use criteria or methods of administration
that have the effect of defeating or substantially impairing accomplishment of
the objectives of the DBE Program Plan with respect to individuals of a
particular race, color, sex, or national origin.
Title VI Assurances – Appendix A
During the performance of this Agreement, the contractor, for itself, its
assignees and successors in interest (hereinafter collectively referred to as
Consultant) agrees as follows:
a. Compliance with Regulations: Consultant shall comply with the
regulations relative to nondiscrimination in federally assisted programs
of the Department of Transportation, Title 49, Code of Federal
Regulations, Part 21, as they may be amended from time to time,
(hereinafter referred to as the Regulations), which are herein
incorporated by reference and made a part of this agreement.
b. Nondiscrimination: Consultant, with regard to the work performed by it
during the agreement, shall not discriminate on the grounds of race,
color, sex, national origin, religion, age, or disability in the selection and
retention of sub-applicants, including procurements of materials and
leases of equipment. Consultant shall not participate either directly or
indirectly in the discrimination prohibited by Section 21.5 of the
Regulations, including employment practices when the agreement
covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub-agreements, Including Procurements of Materials
and Equipment: In all solicitations either by competitive bidding or
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negotiation made by Consultant for work to be performed under a Sub-
agreement, including procurements of materials or leases of equipment,
each potential sub-applicant or supplier shall be notified by Consultant
of the Consultant’s obligations under this Agreement and the
Regulations relative to nondiscrimination on the grounds of race, color,
or national origin.
d. Information and Reports: Consultant shall provide all information and
reports required by the Regulations, or directives issued pursuant
thereto, and shall permit access to its books, records, accounts, other
sources of information, and its facilities as may be determined by the
recipient or FHWA to be pertinent to ascertain compliance with such
Regulations or directives. Where any information required of Consultant
is in the exclusive possession of another who fails or refuses to furnish
this information, Consultant shall so certify to the recipient or FHWA as
appropriate, and shall set forth what efforts Consultant has made to
obtain the information.
e. Sanctions for Noncompliance: In the event of Consultant’s
noncompliance with the nondiscrimination provisions of this agreement,
the recipient shall impose such agreement sanctions as it or the FHWA
may determine to be appropriate, including, but not limited to:
i. withholding of payments to Consultant under the Agreement within
a reasonable period of time, not to exceed 90 days; and/or
ii. cancellation, termination or suspension of the Agreement, in whole
or in part.
f. Incorporation of Provisions: Consultant shall include the provisions of
paragraphs (1) through (6) in every sub-agreement, including
procurements of materials and leases of equipment, unless exempt by
the Regulations, or directives issued pursuant thereto.
Consultant shall take such action with respect to any sub-agreement or
procurement as the recipient or FHWA may direct as a means of enforcing
such provisions including sanctions for noncompliance, provided, however,
that, in the event Consultant becomes involved in, or is threatened with,
litigation with a sub-applicant or supplier as a result of such direction,
Consultant may request the recipient enter into such litigation to protect the
interests of the State, and, in addition, Consultant may request the United
States to enter into such litigation to protect the interests of the United States.
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Title VI Assurances – Appendix EDuring the performance of this contract, the
Contracting Party, for itself, its assignees, and successors in interest agrees
to comply with the following nondiscrimination statutes and authorities;
including but not limited to:
Pertinent Nondiscrimination Authorities:
- Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78
stat. 252), (prohibits discrimination on the basis of race, color,
national origin); and 49 CFR Part 21.
- The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment
of persons displaced or whose property has been acquired because
of Federal or Federal-aid programs and projects);
- Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.),
(prohibits discrimination on the basis of sex);
- Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et
seq.), as amended, (prohibits discrimination on the basis of
disability); and 49 CFR Part 27;
- The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101
et seq.), (prohibits discrimination on the basis of age);
- Airport and Airway Improvement Act of 1982, (49 U.S.C. § 4 71,
Section 4 7123), as amended, (prohibits discrimination based on
race, creed, color, national origin, or sex);
- The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened
the scope, coverage and applicability of Title VI of the Civil Rights Act
of 1964, The Age Discrimination Act of 1975 and Section 504 of the
Rehabilitation Act of 1973, by expanding the definition of the terms
“programs or activities” to include all of the programs or activities of
the Federal-aid recipients, subrecipients and contractors, whether
such programs or activities are Federally funded or not);
- Titles II and III of the Americans with Disabilities Act, which prohibit
discrimination on the basis of disability in the operation of public
entities, public and private transportation systems, places of public
accommodation, and certain testing entities (42 U.S.C. §§ 12131-
12189) as implemented by Department of Transportation regulations
at 49 C.F.R. parts 37 and 38; Page 2 of 2
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- The Federal Aviation Administration's Nondiscrimination statute (49
U.S.C. § 47123) (prohibits discrimination on the basis of race, color,
national origin, and sex);
- Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, which
ensures discrimination against minority populations by discouraging
programs, policies, and activities with disproportionately high and
adverse human health or environmental effects on minority and low-
income populations;
- Executive Order 13166, Improving Access to Services for Persons
with Limited English Proficiency, and resulting agency guidance,
national origin discrimination includes discrimination because of
limited English proficiency (LEP). To ensure compliance with Title VI,
you must take reasonable steps to ensure that LEP persons have
meaningful access to your programs (70 Fed. Reg. at 74087 to
74100);
- Title IX of the Education Amendments of 1972, as amended, which
prohibits you from discriminating because of sex in education
programs or activities (20 U.S.C. 1681 et seq).
10. AUDIT REVIEW PROCEDURES.
10.1 Audit Disputes. Any dispute concerning a question of fact arising
under an interim or post audit of this Agreement that is not disposed of by
agreement provided for in Section 8.0, shall be reviewed by City’s Chief
Financial Officer. Not later than thirty (30) calendar days after issuance of the
final audit report, Contracting Party may request a review by City’s Chief
Financial Officer of unresolved audit issues. The request for review will be
submitted in writing. Neither the pendency of a dispute nor its consideration
by City will excuse Contracting Party from full and timely performance, in
accordance with the terms of this Agreement.
10.2 Audit Review Procedures. Contracting Party and subconsultant
Agreements, including Schedule of Compensation, cost proposals and Indirect
Cost Rates (ICR), may be subject to audits or reviews such as, but not limited
to, an Agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR
audit work paper review. If selected for audit or review, the Agreement, cost
proposal and ICR and related work papers, if applicable, will be reviewed to
verify compliance with 48 CFR Part 31 and other related laws and regulations.
In the instances of a CPA ICR audit work paper review it is Contracting Party’s
responsibility to ensure federal, City, or local government officials are allowed
full access to the CPA’s work papers including making copies as necessary.
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The Agreement, cost proposal, and ICR shall be adjusted by Contracting Party
and approved by City Contract Officer to conform to the audit or review
recommendations. Contracting Party agrees that individual terms of costs
identified in the audit report shall be incorporated into the Agreement by this
reference if directed by City at its sole discretion. Refusal by Contracting Party
to incorporate audit or review recommendations, or to ensure that the federal,
City or local governments have access to CPA work papers, will be considered
a breach of Agreement terms and cause for termination under Section 8.0 of
the Agreement and disallowance of prior reimbursed costs.
10.3 Caltrans Audits and Investigations Work Paper Review.
Contracting Party’s Schedule of Compensation may be subject to a CPA ICR
Audit Work Paper Review and/or audit by Independent Office of Audits and
Investigation (AOAI). IOAI, at its sole discretion, may review and/or audit and
approve the CPA ICR documentation. The Schedule of Compensation shall be
adjusted by the Contracting Party and approved by the City Contract Officer
to conform to the Work Paper Review recommendations included in the
management letter or audit recommendations included in the audit report.
Refusal by the Contracting Party to incorporate the Work Paper Review
recommendations included in the management letter or audit
recommendations included in the audit report will be considered a breach of
the Agreement terms and cause for termination under Section 8.0 of the
Agreement and disallowance of prior reimbursed costs.
During IOAI’s review of the ICR audit work papers created by the Contracting
Party’s independent CPA, IOAI will work with the CPA and/or Contracting Party
toward a resolution of issues that arise during the review. Each party agrees
to use its best efforts to resolve any audit disputes in a timely manner. If IOAI
identifies significant issues during the review and is unable to issue a cognizant
approval letter, City will reimburse the Contracting Party at an accepted ICR
until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part
31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting
Standards), if applicable; in accordance with procedures and guidelines of the
American Association of State Highways and Transportation Officials
(AASHTO) Audit Guide; and other applicable procedures and guidelines}is
received and approved by IOAI.
Accepted rates will be as follows:
A. If the proposed rate is less than one hundred fifty percent (150%) -
the accepted rate reimbursed will be ninety percent (90%) of the
proposed rate.
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B. If the proposed rate is between one hundred fifty percent (150%)
and two hundred percent (200%) - the accepted rate will be eighty-
five percent (85%) of the proposed rate.
C. If the proposed rate is greater than two hundred percent (200%) -
the accepted rate will be seventy-five percent (75%) of the proposed
rate.
If IOAI is unable to issue a cognizant letter per this Section 10.3, IOAI may
require Contracting Party to submit a revised independent CPA-audited ICR
and audit report within three (3) months of the effective date of the
management letter. IOAI will then have up to six (6) months to review the
Contracting Party’s and/or the independent CPA’s revisions.
If the Contracting Party fails to comply with the provisions of this Section 10.3,
or if IOAI is still unable to issue a cognizant approval letter after the revised
independent CPA audited ICR is submitted, overhead cost reimbursement will
be limited to the accepted ICR that was established upon initial rejection of
the ICR and set forth this Section 10.3 for all rendered services. In this event,
this accepted ICR will become the actual and final ICR for reimbursement
purposes under this Agreement.
Contracting Party may submit to City final invoice only when all of the
following items have occurred: (1) IOAI accepts or adjusts the original or
revised independent CPA audited ICR; (2) all work under this Agreement has
been completed to the satisfaction of City; and, (3) IOAI has issued its final
ICR review letter. The Contracting Party must submit its final invoice to City
no later than sixty (60) calendar days after occurrence of the last of these
items. The accepted ICR will apply to this Agreement and all other agreements
executed between City and the Contracting Party, either as a prime or
subconsultant, with the same fiscal period ICR.
11. STATE PREVAILING WAGE RATES
11.1 State Prevailing Wage Rates. No Consultant or Subconsultant
may be awarded an Agreement containing public work elements unless
registered with the Department of Industrial Relations (DIR) pursuant to Labor
Code §1725.5. Registration with DIR must be maintained throughout the
entire term of this Agreement, including any subsequent amendments. The
Contracting Party shall comply with all of the applicable provisions of the
California Labor Code requiring the payment of prevailing wages. The General
Prevailing Wage Rate Determinations applicable to work under this Agreement
are available and on file with the Department of Transportation's
Regional/District Labor Compliance Officer
(https://dot.ca.gov/programs/construction/labor-compliance). These wage
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rates are made a specific part of this Agreement by reference pursuant to
Labor Code §1773.2 and will be applicable to work performed at a construction
project site. Prevailing wages will be applicable to all inspection work
performed at City construction sites, at City facilities and at off-site locations
that are set up by the construction contractor or one of its subcontractors
solely and specifically to serve City projects. Prevailing wage requirements do
not apply to inspection work performed at the facilities of vendors and
commercial materials suppliers that provide goods and services to the general
public. General Prevailing Wage Rate Determinations applicable to this project
may also be obtained from the Department of Industrial Relations Internet
site at http://www.dir.ca.gov.
11.2 Payroll Records. Contracting Party and each Subconsultant shall
keep accurate certified payroll records and supporting documents as
mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the
name, address, social security number, work classification, straight time and
overtime hours worked each day and week, and the actual per diem wages
paid to each journeyman, apprentice, worker, or other employee employed by
the Contracting Party or Subconsultant in connection with the public work.
Each payroll record shall contain or be verified by a written declaration that it
is made under penalty of perjury, stating both of the following:
A. The information contained in the payroll record is true and correct.
B. The employer has complied with the requirements of Labor Code
§1771, §1811, and §1815 for any work performed by his or her
employees on the public works project.
The payroll records enumerated under this Section 11.2 shall be certified as
correct by the Contracting Party under penalty of perjury. The payroll records
and all supporting documents shall be made available for inspection and
copying by City representative’s at all reasonable hours at the principal office
of the Contracting Party. The Contracting Party shall provide copies of certified
payrolls or permit inspection of its records as follows:
A. A certified copy of an employee's payroll record shall be made
available for inspection or furnished to the employee or the
employee's authorized representative on request.
B. A certified copy of all payroll records enumerated in this Section 11.2
shall be made available for inspection or furnished upon request to a
representative of City, the Division of Labor Standards Enforcement
and the Division of Apprenticeship Standards of the Department of
Industrial Relations. Certified payrolls submitted to City, the Division
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of Labor Standards Enforcement and the Division of Apprenticeship
Standards shall not be altered or obliterated by the Contracting Party.
C. The public shall not be given access to certified payroll records by the
Contracting Party. The Contracting Party is required to forward any
requests for certified payrolls to the City Contract Officer by both
email and regular mail on the business day following receipt of the
request.
Contracting Party and all subconsultants shall submit a certified copy of the
records enumerated in this Section 11.2, to the entity that requested the
records within ten (10) calendar days after receipt of a written request.
Any copy of records made available for inspection as copies and furnished
upon request to the public or any public agency by City shall be marked or
obliterated in such a manner as to prevent disclosure of each individual's
name, address, and social security number. The name and address of the
Contracting Party or Subconsultant performing the work shall not be marked
or obliterated.
The Contracting Party shall inform City of the location of the records
enumerated under this Section 11.2, including the street address, city and
county, and shall, within five (5) working days, provide a notice of a change
of location and address.
The Contracting Party or Subconsultant shall have ten (10) calendar days in
which to comply subsequent to receipt of written notice requesting the records
enumerated in this Section 11.2. In the event the Contracting Party or
Subconsultant fails to comply within the ten (10) day period, he or she shall,
as a penalty to City, forfeit one hundred dollars ($100) for each calendar day,
or portion thereof, for each worker, until strict compliance is effectuated. Such
penalties shall be withheld by City from payments then due. Contracting Party
is not subject to a penalty assessment pursuant to this section due to the
failure of a Subconsultant to comply with this section.
11.3 Responsibility. When prevailing wage rates apply, the Contracting
Party is responsible for verifying compliance with certified payroll
requirements. Invoice payment will not be made until the invoice is approved
by the City Contract Officer.
11.4 Penalty. The Contracting Party and any of its Subconsultants shall
comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775,
the Contracting Party and any Subconsultant shall forfeit to the City a penalty
of not more than two hundred dollars ($200) for each calendar day, or portion
thereof, for each worker paid less than the prevailing rates as determined by
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the Director of DIR for the work or craft in which the worker is employed for
any public work done under the Agreement by the Contracting Party or by its
Subconsultant in violation of the requirements of the Labor Code and in
particular, Labor Code §§1770 to 1780, inclusive.
The amount of this forfeiture shall be determined by the Labor Commissioner
and shall be based on consideration of mistake, inadvertence, or neglect of
the Contracting Party or Subconsultant in failing to pay the correct rate of
prevailing wages, or the previous record of the Contracting Party or
Subconsultant in meeting their respective prevailing wage obligations, or the
willful failure by the Contracting Party or Subconsultant to pay the correct
rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay
the correct rates of prevailing wages is not excusable if the Contracting Party
or Subconsultant had knowledge of the obligations under the Labor Code. The
Contracting Party is responsible for paying the appropriate rate, including any
escalations that take place during the term of the Agreement.
In addition to the penalty and pursuant to Labor Code §1775, the difference
between the prevailing wage rates and the amount paid to each worker for
each calendar day or portion thereof for which each worker was paid less than
the prevailing wage rate shall be paid to each worker by the Contracting Party
or Subconsultant.
If a worker employed by a Subconsultant on a public works project is not paid
the general prevailing per diem wages by the Subconsultant, the Contracting
Party is not liable for the penalties described above unless the Contracting
Party had knowledge of that failure of the Subconsultant to pay the specified
prevailing rate of wages to those workers or unless the Contracting Party fails
to comply with all of the following requirements:
A. The Agreement executed between the Contracting Party and the
Subconsultant for the performance of work on public works projects
shall include a copy of the requirements in Labor Code §§ 1771,
1775, 1776, 1777.5, 1813, and 1815.
B. The Contracting Party shall monitor the payment of the specified
general prevailing rate of per diem wages by the Subconsultant to
the employees by periodic review of the certified payroll records of
the Subconsultant.
C. Upon becoming aware of the Subconsultant’s failure to pay the
specified prevailing rate of wages to the Subconsultant’s workers, the
Contracting Party shall diligently take corrective action to halt or
rectify the failure, including but not limited to, retaining sufficient
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funds due the Subconsultant for work performed on the public works
project.
D. Prior to making final payment to the Subconsultant for work
performed on the public works project, the Contracting Party shall
obtain an affidavit signed under penalty of perjury from the
Subconsultant that the Subconsultant had paid the specified general
prevailing rate of per diem wages to the Subconsultant’s employees
on the public works project and any amounts due pursuant to Labor
Code §1813.
Pursuant to Labor Code §1775, City shall notify the Contracting Party on a
public works project within fifteen (15) calendar days of receipt of a complaint
that a Subconsultant has failed to pay workers the general prevailing rate of
per diem wages.
If City determines that employees of a Subconsultant were not paid the
general prevailing rate of per diem wages and if City did not retain sufficient
money under the Agreement to pay those employees the balance of wages
owed under the general prevailing rate of per diem wages, the Contracting
Party shall withhold an amount of moneys due the Subconsultant sufficient to
pay those employees the general prevailing rate of per diem wages if
requested by City.
11.5 Hours of Labor. Eight (8) hours labor constitutes a legal day's
work. The Contracting Party shall forfeit, as a penalty to the City, twenty-five
dollars ($25) for each worker employed in the execution of the Agreement by
the Contracting Party or any of its Subconsultants for each calendar day during
which such worker is required or permitted to work more than eight (8) hours
in any one calendar day and forty (40) hours in any one calendar week in
violation of the provisions of the Labor Code, and in particular §§1810 to 1815
thereof, inclusive, except that work performed by employees in excess of eight
(8) hours per day, and forty (40) hours during any one week, shall be
permitted upon compensation for all hours worked in excess of eight (8) hours
per day and forty (40) hours in any week, at not less than one and one-half
(1.5) times the basic rate of pay, as provided in §1815.
11.6 Employment of Apprentices. Where either the prime Agreement
or the subagreement exceeds thirty thousand dollars ($30,000), the
Contracting Party and any subconsultants under him or her shall comply with
all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in
the employment of apprentices.
The Contracting Party and its subconsultants are required to comply with all
Labor Code requirements regarding the employment of apprentices, including
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mandatory ratios of journey level to apprentice workers. Prior to
commencement of work, Contracting Party and its subconsultants are advised
to contact the DIR Division of Apprenticeship Standards website at
https://www.dir.ca.gov/das/, for additional information regarding the
employment of apprentices and for the specific journey-to- apprentice ratios
for the Agreement work. The Contracting Party is responsible for all
subconsultants’ compliance with these requirements. Penalties are specified
in Labor Code §1777.7.
12. DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION.
The Contracting Party, subrecipient (City), or subconsultant shall take
necessary and reasonable steps to ensure that DBE’s have opportunities to
participate in the contract (49 CFR 26). To ensure equal participation of DBE’s
provided in 49 CFR 26.5, The City shows a contract goal for DBE’s. Contracting
Party shall make work available to DBEs and select work parts consistent with
available DBE subconsultants and suppliers.
The Contracting Party shall meet the DBE goal shown elsewhere in these
special provisions or demonstrate that they made adequate good faith efforts
to meet this goal. It is Contracting Party’s responsibility to verify at date of
proposal opening that the DBE firm is certified as a DBE by using the California
Unified Certification Program (CUCP) database and possesses the most
specific available North American Industry Classification System (NAICS)
codes or work code applicable to the tye pf work the firm will perform on the
contract. Additionally the Contracting Party is responsible to document the
verification record by printing out the California Unified Certification Program
(CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be
found at https://dot.ca.gov/programs/civil-rights/dbe-search.
All DBE participation will count toward the California Department of
Transportation’s federally mandated statewide overall DBE goal. Credit for
materials or supplies the Contracting Party purchases from DBE’s counts
toward the goal in the following manner:
- 100 percent counts if the materials or supplies are obtained from a
DBE manufacturer.
- 60 percent counts if the materials or supplies are purchased from a
DBE regular dealer.
- Only fees, commissions, and charges for assistance in the
procurement and delivery of materials or supplies count if obtained
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from a DBE that is neither a manufacturer nor regular dealer. 49 CFR
26.55 defines “manufacturer” and regular dealer.”
This Agreement is subject to 49 CFR Part 26 entitled “Participation by
Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs”. Consultants who enter into a federally-funded
agreement will assist the City in a good faith effort to achieve California's
statewide overall DBE goal.
12.1 DBE Goal. The Goal for DBE participation for this Agreement
is 17%. Participation by DBE Contracting Party or subconsultants shall be in
accordance with information contained in Exhibit 10-O2: Consultant Contract
DBE Commitment attached hereto and incorporated as part of the Agreement.
If a DBE subconsultant is unable to perform, the Contracting Party must make
a good faith effort to replace him/her with another DBE subconsultant, if the
goal is not otherwise met.
12.2 Meeting the Goal. The Contracting Party can meet the DBE
participation goal by either documenting commitments to DBE’s to meet the
Agreement goal, or by documenting adequate good faith efforts to meet the
Agreement goal. An adequate good faith effort means that the Contracting
Party must show that it took all necessary and reasonable steps to achieve a
DBE goal that, by their scope, intensity, and appropriateness to the objective,
could reasonably be expected to meet the DBE goal. If the Contracting Party
has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information
– Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR
Part 26 for guidance regarding evaluation of good faith efforts to meet the
DBE goal.
12.3 Contract Assurance. Under 49 DBR 26.13(b):
The Contracting Party, subrecipient or subconsultant shall not discriminate on
the basis of race, color, national origin, or sex in the performance of this
contract. The Contracting Party shall carry out applicable requirements of 49
CFR 26 in the award and administration of federal-aid contracts.
Failure by the Contracting Party to carry out these requirements is a material
breach of this contract, which may result in the termination of this contract
under Section 8.0 or such other remedy as the recipient deems appropriate,
which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated Damages; and/or
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(4) Disqualifying the Contracting Party from future proposing as non-
responsible.
12.4 Termination and Substitution of DBE Subconsultants. The
Contracting Party shall utilize the specific DBEs listed to perform the work and
supply the materials for which each is listed unless the Contracting Party or
DBE subconsultant obtains the City’s written consent. The Contracting Party
shall not terminate or substitute a listed DBE for convenience and perform the
work with their own forces or obtain materials from other sources without
authorization from the City. Unless the City’s consent is provided, the
Contracting party shall not be entitled to any payment for work or material
unless it is performed or supplied by the listed DBE on the Exhibit 10-02
Consultant Contract DBE Commitment form, included in the bid.
The City authorizes a request to use other forces or sources of materials if the
Contracting Party shows any of the following justifications:
1. Listed DBE fails or refuses to execute a written contract based on
plans and specifications for the project.
2. The City stipulated that a bond is a condition of executing the
subcontract and the listed DBE fails to meet the City’s bond
requirements.
3. Work requires a consultant’s license and listed DBE does not have a
valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed
materials (failing or refusing to perform is not an allowable reason
to remove a DBE if the failure or refusal is a result of bad faith or
discrimination).
5. Listed DBE’s work is unsatisfactory and not in compliance with the
contract.
6. Listed DBE is ineligible to work on the project because of suspension
or debarment.
7. Listed DBE becomes bankrupt or insolvent.
8. Listed DBE voluntarily withdraws with written notice from the
Contract.
9. Listed DBE is ineligible to receive credit for the type of work required.
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10. Listed DBE owner dies or becomes disabled resulting in the inability
to perform the work on the Contract.
11. The City determines other documented good cause.
The Contracting Party shall notify the original DBE of the intent to use other
forces or material sources and provide the reasons and provide the DBE with
5 days to respond to the notice and advise Contracting Party and the City of
the reasons why the use of other forces or sources of materials should not
occur.
The Contracting Party’s request to use other forces or materials sources must
include:
1. One or more of the reasons listed in the preceding paragraph.
2. Notices from the Contracting Party to the DBE regarding the request.
3. Notices from the DBE’s to the Contracting Party regarding this
request.
If a listed DBE is terminated or substituted, the Contracting Party must make
good faith efforts to find another DBE to substitute for the original DBE. The
substitute DBE must perform at least the same amount of work as the original
DBE under the contract to the extent needed to meet or exceed the DBE goal.
12.5 Commitment and Utilization. The City’s DBE program must
include a monitoring and enforcement mechanism to ensure that DBE
commitments reconcile to the DBE utilization.
The City shall request the Contracting Party to:
1. Notify the City’s contract officer or designated representative of any
changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
- Name and business address of each 1st tier subconsultant
- Name and business address of each DBE subconsultant, DBE
vendor, and DBE trucking company, regardless of tier
- Date of payment and total amount paid to each business (see
Exhibit 9-F Monthly Disadvantaged Business Enterprise Payment)
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If the Contracting Party is a DBE Consultant, they shall include the date of
work performed by their own forces and the corresponding value of the work.
If a DBE is decertified before completing its work, the DBE must notify the
Contracting Party in writing of the decertification date. If a business becomes
a certified DBE before completing its work, the business must notify the
Contracting Party in writing of the certification date. The Contracting Party
shall submit the notifications to the City. On work completion, the Contracting
Party shall complete a Disadvantaged Business Enterprises (DBE) Certification
Status Change, Exhibit 17-O, form and submit the form to the City within 30
days of contract acceptance.
Upon work completion, the Contracting Party shall complete Exhibit 17-F Final
Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier
Subcontractors and submit it to the City within 90 days of contract acceptance.
The City will withhold $10,000 until the form is submitted. The City will release
the withhold upon submission of the completed form.
In the City’s reports of DBE participation to Caltrans, the City must display
both commitments and attainments.
12.6 Eligibility of DBE’s. A DBE is only eligible to be counted toward
the Agreement goal if it performs a commercially useful function (CUF) on the
Agreement. CUF must be evaluated on an agreement by agreement basis. A
DBE performs a Commercially Useful Function (CUF) when it is responsible for
execution of the work of the Agreement and is carrying out its responsibilities
by actually performing, managing, and supervising the work involved. To
perform a CUF, the DBE must also be responsible, with respect to materials
and supplies used on the Agreement, for negotiating price, determining quality
and quantity, ordering the material and installing (where applicable), and
paying for the material itself. To determine whether a DBE is performing a
CUF, evaluate the amount of work subcontracted, industry practices, whether
the amount the firm is to be paid under the Agreement is commensurate with
the work it is actually performing, and other relevant factors.
12.7 A DBE does not perform a CUF if its role is limited to that of an
extra participant in a transaction, Agreement, or project through which funds
are passed in order to obtain the appearance of DBE participation. In
determining whether a DBE is such an extra participant, examine similar
transactions, particularly those in which DBEs do not participate.
12.8 If a DBE does not perform or exercise responsibility for at least
thirty percent (30%) of the total cost of its Agreement with its own work force,
or the DBE subcontracts a greater portion of the work of the AGREEMENT than
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would be expected on the basis of normal industry practice for the type of
work involved, it will be presumed that it is not performing a CUF.
12.9 Records. The Contracting Party shall maintain records of
materials purchased or supplied from all subcontracts entered into with
certified DBEs. The records shall show the name and business address of each
DBE or vendor and the total dollar amount actually paid each DBE or vendor,
regardless of tier. The records shall show the date of payment and the total
dollar figure paid to all firms. DBE Contracting Party’s shall also show the date
of work performed by their own forces along with the corresponding dollar
value of the work.
12.10 Decertification of DBE. If a DBE subconsultant is decertified
during the life of the Agreement, the decertified subconsultant shall notify the
Contracting Party in writing with the date of decertification. If a subconsultant
becomes a certified DBE during the life of the Agreement, the subconsultant
shall notify the Contracting Party in writing with the date of certification. Any
changes should be reported to City’s Contract Officer within thirty (30)
calendar days.
12.11 Running Tally of Payments to DBE. After submitting an invoice for
reimbursement that includes a payment to a DBE, but no later than the 10th
of the following month, the prime contractor/consultant shall complete and
email the Exhibit 9-F: Disadvantaged Business Enterprise Running Tally of
Payments to business.support.unit@dot.ca.gov with a copy to the City.
12.12 DBE Subcontracting. Any subcontract entered into as a result of
this agreement shall contain all of the provisions of this section.
13. MISCELLANEOUS PROVISIONS.
13.1 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: Bryan McKinney, PE
78495 Calle Tampico
To Contracting Party:
TY LIN INTERNATIONAL
Joseph Smith
404 Camino del Rio South, Ste 700
San Diego, CA 92108
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La Quinta, California 92253
13.2 Contracting Party’s Reports or Meetings. The Contracting Party
shall submit progress reports at least once a month. The report should be
sufficiently detailed for the City’ Contract Officer to determine, if the
Contracting Party is performing to expectations, or is on schedule; to provide
communication of interim findings, and to sufficiently address any difficulties
or special problems encountered, so remedies can be developed.
13.3 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.
13.4 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.
13.5 Cost Principals. The Contracting Party agrees that 48 CFR Part
31, Contract Cost Principles and Procedures, shall be used to determine the
allowability of individual terms of cost. The Contracting Party also agrees to
comply with Federal procedures in accordance with 2 CFR Part 200, Uniform
Administrative Requirements, Cost Principles, and Audit Requirements for
Federal Awards. Any costs for which payment has been made to the
Contracting Party that are determined by subsequent audit to be unallowable
under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by the
Contracting Party to City. When Contracting Party or Subconsultant is a Non-
Profit Organization or an Institution of Higher Education, the Cost Principles
for Title 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles,
and Audit Requirements for Federal Awards shall apply.
13.6 Subcontracting. Nothing contained in this AGREEMENT or
otherwise, shall create any contractual relation between the City and any
Subconsultants, and no subagreement shall relieve the Contracting Party of
its responsibilities and obligations hereunder. The Contracting Party agrees to
be as fully responsible to the City for the acts and omissions of its
Subconsultants and of persons either directly or indirectly employed by any of
them as it is for the acts and omissions of persons directly employed by the
Contracting Party. The Contracting Party's obligation to pay its Subconsultants
is an independent obligation from the City’s obligation to make payments to
the Contracting Party. The Contracting Party shall perform the work
contemplated with resources available within its own organization and no
portion of the work shall be subcontracted without written authorization by
the City Contract Officer, except that which is expressly identified in the
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Schedule of Compensation. Any subagreement entered into as a result of this
Agreement, shall contain all the provisions stipulated in this entire Agreement
to be applicable to Subconsultants unless otherwise noted. Contracting Party
shall pay its Subconsultants within Fifteen (15) calendar days from receipt of
each payment made to the Contracting Party by the City. Any substitution of
Subconsultants must be approved in writing by the City Contract Officer in
advance of assigning work to a substitute Subconsultant.
13.7 Prompt Progress Payment. The Contracting Party or
subconsultant shall pay to any subconsultant, no later than fifteen (15) days
after receipt of each progress payment, unless otherwise agreed to in writing,
the respective amounts allowed the Contracting Party on account of the work
performed by the subconsultants, to the extent of each subconsultant’s
interest therein. In the event that there is a good faith dispute over all or any
portion of the amount due on a progress payment from the Contracting Party
or subconsultant to a subconsultant, the Contracting Party or subconsultant
may withhold no more than 150 percent of the disputed amount. Any violation
of this requirement shall constitute a cause for disciplinary action and shall
subject the licensee to a penalty, payable to the subconsultant, of 2 percent
of the amount due per month for every month that payment is not made.
13.8 Prompt Payment of Withheld Funds to Subconsultants. No
retainage will be held by the City from progress payments due to the
Contracting Party. The Contracting Party and subconsultants are prohibited
from holding retainage from subconsultants. Any delay or postponement of
payment may take place only for good cause and with the City’s prior written
approval. Any violation of these provisions shall subject the violating
Contracting Party or subconsultant to the penalties, sanctions, and other
remedies specified in Section 3321 of the California Civil Code. This
requirement shall not be construed to limit or impair any contractual,
administrative, or judicial remedies, otherwise available to the Contracting
Party or subconsultant in the event of a dispute involving late payment or
nonpayment by the Contracting Party, deficient subconsultant performance
and/or noncompliance by a subconsultant. This clause applies to both DBE and
non-DBE subconsultants
13.9 Equipment Purchase. Prior authorization in writing by City
Contract Officer shall be required before Contracting Party enters into any
unbudgeted purchase order, or subcontract exceeding five thousand dollars
($5,000) for supplies, equipment, or services. Contracting Party shall provide
an evaluation of the necessity or desirability of incurring such costs. For
purchase of any item, service, or consulting work not covered in Schedule of
Compensation and exceeding five thousand dollars ($5,000), with prior
authorization by City Contract Officer, three competitive quotations must be
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submitted with the request, or the absence of proposal must be adequately
justified. Any equipment purchased with funds provided under the terms of
this Agreement is subject to the following:
Contracting Party shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years
and an acquisition cost of five thousand dollars ($5,000) or more. If the
purchased equipment needs replacement and is sold or traded in, City shall
receive a proper refund or credit at the conclusion of the Agreement, or if the
Agreement is terminated as provided for in Section 8.0, Contracting Party may
either keep the equipment and credit City in an amount equal to its fair market
value, or sell such equipment at the best price obtainable at a public or private
sale, in accordance with established City procedures; and credit City in an
amount equal to the sales price. If Contracting Party elects to keep the
equipment, fair market value shall be determined at Contracting Party’s
expense, on the basis of a competent independent appraisal of such
equipment. Appraisals shall be obtained from an appraiser mutually agreeable
to by City and Contracting Party, if it is determined to sell the equipment, the
terms and conditions of such sale must be approved in advance by City.
Regulation 2 CFR Part 200 requires a credit to State or Federal funds when
participating equipment with a fair market value greater than five thousand
dollars ($5,000) is credited to the project.
13.10 Rebates, Kickbacks or Other Unlawful Consideration. The
Contracting Party warrants that this Agreement was not obtained or secured
through rebates, kickbacks or other unlawful consideration either promised or
paid to any City employee. For breach or violation of this warranty, City shall
have the right, in its discretion, to terminate this Agreement without liability,
to pay only for the value of the work actually performed, or to deduct from
this Agreement price or otherwise recover the full amount of such rebate,
kickback or other unlawful consideration.
13.11 Prohibition of Expending City, State, or Federal Funds for
Lobbying. The Contracting Party certifies, to the best of his or her knowledge
and belief, that no State, Federal, or City appropriated funds have been paid
or will be paid, by or on behalf of the Contracting Party, to any person for
influencing or attempting to influence an officer or employee of any local,
State, or Federal agency, a Member of the State Legislature or United States
Congress, an officer or employee of the Legislature or Congress, or any
employee of a Member of the Legislature or Congress in connection with the
awarding or making of this Agreement, or with the extension, continuation,
renewal, amendment, or modification of this Agreement. If any funds other
than Federal appropriated funds have been paid or will be paid to any person
for influencing or attempting to influence an officer or employee of any
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agency, a Member of Congress, an officer or employee of Congress, or an
employee of a member of Congress in connection with this Agreement, the
Contracting Party shall complete and submit Standard Form-LLL, “Disclosure
Form to Report Lobbying,” in accordance with its instructions. This
certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction
imposed by 31 U.S.C. §1352. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than ten thousand
dollars ($10,000) and not more than one hundred thousand dollars
($100,000) for each such failure. The Contracting Party also agrees by signing
this document that he or she shall require that the language of this
certification be included in all lower tier subagreements, which exceed one
hundred thousand dollars ($100,000), and that all such subrecipients shall
certify and disclose accordingly.
13.12 Debarment and Suspension Certification. The Contracting Party’s
signature affixed herein shall constitute a certification under penalty of perjury
under the laws of the State of California, that the Contracting Party or any
person associated therewith in the capacity of owner, partner, director, officer
or manager is not currently under suspension, debarment, voluntary
exclusion, or determination of ineligibility by any federal agency; has not been
suspended, debarred, voluntarily excluded, or determined ineligible by any
federal agency within the past three (3) years; does not have a proposed
debarment pending; and has not been indicted, convicted, or had a civil
judgment rendered against it by a court of competent jurisdiction in any
matter involving fraud or official misconduct within the past three (3) years.
Any exceptions to this certification must be disclosed to City. Exceptions will
not necessarily result in denial of recommendation for award but will be
considered in determining responsibility. Disclosures must indicate the party
to whom the exceptions apply, the initiating agency, and the dates of agency
action. Exceptions to the Federal Government Excluded Parties List System
maintained by the U.S. General Services Administration are to be determined
by FHWA.
13.13 Funding Requirements. It is mutually understood between the
parties that this Agreement may have been written before ascertaining the
availability of funds or appropriation of funds, for the mutual benefit of both
parties, in order to avoid program and fiscal delays that would occur if the
Agreement were executed after that determination was made. This
Agreement is valid and enforceable only if sufficient funds are made available
to City for the purpose of this Agreement. In addition, this Agreement is
subject to any additional restrictions, limitations, conditions, or any statute
enacted by the Congress, State Legislature, or City governing board that may
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affect the provisions, terms, or funding of this Agreement in any manner. It
is mutually agreed that if sufficient funds are not appropriated, this Agreement
may be amended to reflect any reduction in funds. City has the option to
terminate the Agreement pursuant to Section 8.0 or by mutual agreement to
amend the Agreement to reflect any reduction of funds.
13.14 Contingent Fee. Contracting Party warrants, by execution of this
Agreement that no person or selling agency has been employed, or retained,
to solicit or secure this Agreement upon an agreement or understanding, for
a commission, percentage, brokerage, or contingent fee, excepting bona fide
employees, or bona fide established commercial or selling agencies
maintained by Contracting Party for the purpose of securing business. For
breach or violation of this warranty, City has the right to annul this Agreement
without liability; pay only for the value of the work actually performed, or in
its discretion to deduct from the Agreement price or consideration, or
otherwise recover the full amount of such commission, percentage, brokerage,
or contingent fee.
13.15 Inspection of Work. Contracting Party and any subconsultant
shall permit City, the State, and the FHWA if federal participating funds are
used in this Agreement; to review and inspect the project activities and files
at all reasonable times during the performance period of this Agreement.
13.16 Safety. Contracting Party shall comply with OSHA regulations
applicable to Contracting Party regarding necessary safety equipment or
procedures. Contracting Party shall comply with safety instructions issued by
City Safety Officer and other City representatives. Contracting Party personnel
shall wear hard hats and safety vests at all times while working on the
construction project site. Pursuant to the authority contained in Vehicle Code
§591, City has determined that such areas are within the limits of the project
and are open to public traffic. Contracting Party shall comply with all of the
requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code.
Contracting Party shall take all reasonably necessary precautions for safe
operation of its vehicles and the protection of the traveling public from injury
and damage from such vehicles. Contracting Party must have a Division of
Occupational Safety and Health (CAL-OSHA) permit(s), as outlined in Labor
Code §6500 and §6705, prior to the initiation of any practices, work, method,
operation, or process related to the construction or excavation of trenches
which are five (5) feet or deeper.
13.17 Claims Filed by City’s Construction Contractor. If claims are filed
by City’s construction contractor relating to work performed by Contracting
Party’s personnel, and additional information or assistance from Contracting
Party’s personnel is required in order to evaluate or defend against such
claims; Contracting Party agrees to make its personnel available for
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consultation with City’s construction contract administration and legal staff
and for testimony, if necessary, at depositions and at trial or arbitration
proceedings. Contracting Party’s personnel that City considers essential to
assist in defending against construction contractor claims will be made
available on reasonable notice from City. Consultation or testimony will be
reimbursed at the same rates, including travel costs that are being paid for
Contracting Party’s personnel services under this Agreement. Services of
Contracting Party’s personnel in connection with City’s construction contractor
claims will be performed pursuant to a written contract amendment, if
necessary, extending the termination date of this Agreement in order to
resolve the construction claims.
13.18 National Labor Relations Board Certification. In accordance with
Public Contract Code §10296, Contracting Party hereby states under penalty
of perjury that no more than one final unappealable finding of contempt of
court by a federal court has been issued against Contracting Party, within the
immediately preceding two-year period, because of Contracting Party’s failure
to comply with an order of a federal court that orders Contracting Party to
comply with an order of the National Labor Relations Board.
13.19 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
13.20 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.
13.21 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. Contracting Party shall only commence work covered by an
amendment after the amendment is executed and notification to proceed has
been provided by City Contract Officer.
13.22 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
-40-
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.
13.23 Unfair Business Practices Claims. In entering into this Agreement,
Contracting Party offers and agrees to assign to City all rights, title, and
interest in and to all causes of action it may have under Section 4 of the
Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2,
(commencing with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or materials
related to this Agreement. This assignment shall be made and become
effective at the time City renders final payment to Contracting Party without
further acknowledgment of the parties.
13.24 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.
13.25 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]
-41-
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
[See Attached]
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 Party must forfeit to City TWENTY-
Exhibit A
Page 3 of 5
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 Section 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
unidentified utility facilities. Contracting Party shall not be assessed liquidated
Exhibit A
Page 4 of 5
damages for delay arising from the removal or relocation of such unidentified
utility facilities.
4. Trenches or Excavations. Pursuant to California Public Contract
Code Section 7104, in the event the work included in this Agreement requires
excavations more than four (4) feet in depth, the following shall apply:
(a) Contracting Party shall promptly, and before the following
conditions are disturbed, notify City, in writing, of any: (1) material that
Contracting Party believes may be material that is hazardous waste, as
defined in Section 25117 of the Health and Safety Code, that is required to be
removed to a Class I, Class II, or Class III disposal site in accordance with
provisions of existing law; (2) subsurface or latent physical conditions at the
site different from those indicated by information about the site made
available to bidders prior to the deadline for submitting bids; or (3) unknown
physical conditions at the site of any unusual nature, different materially from
those ordinarily encountered and generally recognized as inherent in work of
the character provided for in the Agreement.
(b) City shall promptly investigate the conditions, and if it finds
that the conditions do materially so differ, or do involve hazardous waste, and
cause a decrease or increase in Contracting Party’s cost of, or the time
required for, performance of any part of the work shall issue a change order
per Section 1.8 of the Agreement.
(c) in the event that a dispute arises between City and
Contracting Party whether the conditions materially differ, or involve
hazardous waste, or cause a decrease or increase in Contracting Party’s cost
of, or time required for, performance of any part of the work, Contracting
Party shall not be excused from any scheduled completion date provided for
by this Agreement, but shall proceed with all work to be performed under this
Agreement. Contracting Party shall retain any and all rights provided either
by contract or by law which pertain to the resolution of disputes and protests
between the contracting Parties.
5. Safety. Contracting Party shall execute and maintain its work so
as to avoid injury or damage to any person or property. In carrying out the
Services, Contracting Party shall at all times be in compliance with all
applicable local, state, and federal laws, rules and regulations, and shall
exercise all necessary precautions for the safety of employees appropriate to
the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be
limited to: (A) adequate life protection and lifesaving equipment and
procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders,
Exhibit A
Page 5 of 5
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 ($1,000.00) as liquidated damages for each working day of
delay in the performance of any of the Services required hereunder, as
specified in the Schedule of Performance. In addition, liquidated damages
may be assessed for failure to comply with the emergency call out
requirements, if any, described in the Scope of Services. City may withhold
from any moneys payable on account of the Services performed by
Contracting Party any accrued liquidated damages.
Exhibit B
Page 1 of 1
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for
in Section 2.4 of this Agreement, the maximum total compensation to be paid
to Contracting Party under this Agreement is not to exceed Two Million Seven
Hundred and Sixty Four Thousand Six Hundred Fifty Dollars and Sixty-Eight
Cents ($ 2,764,650.68) (“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 2.3 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
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
Cyber Liability
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
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
Exhibit E
Page 2 of 7
the execution of this Agreement and approved by City prior to commencement
of the services hereunder.
Contracting Party shall carry automobile liability insurance of
$1,000,000 per accident against all claims for injuries against persons or
damages to property arising out of the use of any automobile by Contracting
Party, its officers, any person directly or indirectly employed by Contracting
Party, any subcontractor or agent, or anyone for whose acts any of them may
be liable, arising directly or indirectly out of or related to Contracting Party’s
performance under this Agreement. If Contracting Party or Contracting
Party’s employees will use personal autos in any way on this project,
Contracting Party shall provide evidence of personal auto liability coverage for
each such person. The term “automobile” includes, but is not limited to, a
land motor vehicle, trailer or semi-trailer designed for travel on public roads.
The automobile insurance policy shall contain a severability of interest clause
providing that coverage shall be primary for losses arising out of Contracting
Party’s performance hereunder and neither City nor its insurers shall be
required to contribute to such loss.
Professional Liability or Errors and Omissions Insurance as
appropriate shall be written on a policy form coverage specifically designed to
protect against acts, errors or omissions of the Contracting Party and “Covered
Professional Services” as designated in the policy must specifically include
work performed under this agreement. The policy limit shall be no less than
$1,000,000 per claim and in the aggregate. The policy must “pay on behalf
of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of
this agreement.
Contracting Party shall carry Workers’ Compensation Insurance in
accordance with State Worker’s Compensation laws with employer’s liability
limits no less than $1,000,000 per accident or disease.
Contracting Party shall 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.
Exhibit E
Page 3 of 7
c. Liability arising from the failure of technology products
(software) required under the contract for Consultant to
properly perform the services intended.
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
Exhibit E
Page 4 of 7
policies or endorsements. Nothing herein contained shall be construed as
limiting in any way the extent to which Contracting Party may be held
responsible for payments of damages to persons or property resulting from
Contracting Party’s or its subcontractors’ performance of work under this
Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage
by Contracting Party. Contracting Party and City agree to the following with
respect to insurance provided by Contracting Party:
1. Contracting Party agrees to have its insurer endorse the third
party general liability coverage required herein to include as additional
insureds City, its officials, employees, and agents, using standard ISO
endorsement No. CG 2010 with an edition prior to 1992. Contracting Party
also agrees to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this
Agreement shall prohibit Contracting Party, or Contracting Party’s employees,
or agents, from waiving the right of subrogation prior to a loss. Contracting
Party agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors and
subcontractors to do likewise.
3. All insurance coverage and limits provided by Contracting Party
and available or applicable to this Agreement are intended to apply to the full
extent of the policies. Nothing contained in this Agreement or any other
agreement relating to City or its operations limits the application of such
insurance coverage.
4. None of the coverages required herein will be in compliance with
these requirements if they include any limiting endorsement of any kind that
has not been first submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that
would serve to eliminate so-called “third party action over” claims, including
any exclusion for bodily injury to an employee of the insured or of any
contractor or subcontractor.
6. All coverage types and limits required are subject to approval,
modification and additional requirements by the City, as the need arises.
Contracting Party shall not make any reductions in scope of coverage (e.g.
elimination of contractual liability or reduction of discovery period) that may
affect City’s protection without City’s prior written consent.
Exhibit E
Page 5 of 7
7. Proof of compliance with these insurance requirements, consisting
of certificates of insurance evidencing all the coverages required and an
additional insured endorsement to Contracting Party’s general liability policy,
shall be delivered to City at or prior to the execution of this Agreement. In
the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is
provided, City has the right, but not the duty, to obtain any insurance it deems
necessary to protect its interests under this or any other agreement and to
pay the premium. Any premium so paid by City shall be charged to and
promptly paid by Contracting Party or deducted from sums due Contracting
Party, at City option.
8. It is acknowledged by the parties of this agreement that all
insurance coverage required to be provided by Contracting Party or any
subcontractor, is intended to apply first and on a primary, non-contributing
basis in relation to any other insurance or self-insurance available to City.
9. Contracting Party agrees to ensure that subcontractors, and any
other party involved with the project that is brought onto or involved in the
project by Contracting Party, provide the same minimum insurance coverage
required of Contracting Party. Contracting Party agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such
coverage is provided in conformity with the requirements of this section.
Contracting Party agrees that upon request, all agreements with
subcontractors and others engaged in the project will be submitted to City for
review.
10. Contracting Party agrees not to self-insure or to use any self-
insured retentions or deductibles on any portion of the insurance required
herein (with the exception of professional liability coverage, if required) and
further agrees that it will not allow any contractor, subcontractor, Architect,
Engineer or other entity or person in any way involved in the performance of
work on the project contemplated by this agreement to self-insure its
obligations to City. If Contracting Party’s existing coverage includes a
deductible or self-insured retention, the deductible or self-insured retention
must be declared to the City. At that time the City shall review options with
the Contracting Party, which may include reduction or elimination of the
deductible or self-insured retention, substitution of other coverage, or other
solutions.
11. The City reserves the right at any time during the term of this
Agreement to change the amounts and types of insurance required by giving
the Contracting Party ninety (90) days advance written notice of such change.
If such change results in substantial additional cost to the Contracting Party,
Exhibit E
Page 6 of 7
the City will negotiate additional compensation proportional to the increased
benefit to City.
12. For purposes of applying insurance coverage only, this Agreement
will be deemed to have been executed immediately upon any party hereto
taking any steps that can be deemed to be in furtherance of or towards
performance of this Agreement.
13. Contracting Party acknowledges and agrees that any actual or
alleged failure on the part of City to inform Contracting Party of non-
compliance with any insurance requirement in no way imposes any additional
obligations on City nor does it waive any rights hereunder in this or any other
regard.
14. Contracting Party will renew the required coverage annually as
long as City, or its employees or agents face an exposure from operations of
any type pursuant to this agreement. This obligation applies whether the
agreement is canceled or terminated for any reason. Termination of this
obligation is not effective until City executes a written statement to that effect.
15. Contracting Party shall provide proof that policies of insurance
required herein expiring during the term of this Agreement have been renewed
or replaced with other policies providing at least the same coverage. Proof
that such coverage has been ordered shall be submitted prior to expiration.
A coverage binder or letter from Contracting Party’s insurance agent to this
effect is acceptable. A certificate of insurance and an additional insured
endorsement is required in these specifications applicable to the renewing or
new coverage must be provided to City within five (5) days of the expiration
of coverages.
16. The provisions of any workers’ compensation or similar act will not
limit the obligations of Contracting Party under this agreement. Contracting
Party expressly agrees not to use any statutory immunity defenses under such
laws with respect to City, its employees, officials, and agents.
17. Requirements of specific coverage features, or limits contained in
this section are not intended as limitations on coverage, limits or other
requirements nor as a waiver of any coverage normally provided by any given
policy. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any
party or insured to be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and
distinct from any other provision in this Agreement and are intended by the
parties here to be interpreted as such.
Exhibit E
Page 7 of 7
19. The requirements in this Exhibit supersede all other sections and
provisions of this Agreement to the extent that any other section or provision
conflicts with or impairs the provisions of this Exhibit.
20. Contracting Party agrees to be responsible for ensuring that no
contract used by any party involved in any way with the project reserves the
right to charge City or Contracting Party for the cost of additional insurance
coverage required by this agreement. Any such provisions are to be deleted
with reference to City. It is not the intent of City to reimburse any third party
for the cost of complying with these requirements. There shall be no recourse
against City for payment of premiums or other amounts with respect thereto.
21. Contracting Party agrees to provide immediate notice to City of
any claim or loss against Contracting Party arising out of the work performed
under this agreement. City assumes no obligation or liability by such notice,
but has the right (but not the duty) to monitor the handling of any such claim
or claims if they are likely to involve City.
Exhibit F
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.