RFP - Phone System UpgradeREQUEST FOR PROPOS
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Proposal Submittal Dead
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Section 1: Request for Proposal CRFP) Purpose and Scope
The City of La Quinta (City) seeks a solution that integrates its communications
system with a Voice over Internet Protocol (VoIP) integrated voice and data
system. The new system shall include unified messaging and integrate with
the City's Office 365 2016 email system. All existing telephones should be
replaced with equivalent IP phones that support basic telephony features. An
employee should be able to log in anywhere on or off the company network
(home phone, cell phone, or computer) and automatically receive calls without
administrative intervention.
City requires that any system have the capability to service remote locations
with the same features and functionality as the main office should the need
arise. System directories, class of service for telephony capabilities, trunk
group access, should apply to all locations.
The City currently has a radio point-to-point connection to the remote sites,
in which VLAN voice data is passed through to the remote locations. City also
requires the ability to install a "failover/backup system" that will work in
tandem with the main system to process calls as needed, either due to
emergency, power outage, or capacity issues. This "failover/backup system"
may reside in the City of La Quinta or in another city. Each vendor should
include in their response the benefits that their system will provide including,
but not limited to, the increased efficiencies that staff and residents will realize.
The successful for this contract will be the sole authority and responsible party
for this installation. The City's goal is to establish a relationship with a single
point of contact for all support necessary for the project. It is the intent of this
Request for Proposal (RFP) that the responder shall provide a complete, end -
to -end solution for the installation. The vendor shall provide all design,
planning, system architecture, installation, network analysis, training, and
post installation support for the project. City staff will act in oversight and
advisory positions only. The vendor is also expected to provide a
comprehensive training plan for all employees. It is expected that City staff will
require technical training at various levels and that line staff will require
training on the new systems. The vendor is expected to plan and conduct the
installation of the project with minimal impact to daily operations and staff.
Staff will work closely with the vendor to create a working project plan that
will achieve these goals.
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Vendor Response to this RFP should cover the following general topics:
• IP-based Voice capabilities and
Intelligent Network Infrastructure
Support/Service Capabilities
• Reliability
Scalabilit
Voice Quality
System Longevity
Experience and References
Simplicity of Installation
• Voice Messaging
Training and Usage
• System Administration
Failover/emergency backup op
SECTION 2- RFP Submission Requirements:
Submit proposals electronically, via e-mail, or thumb drive. All documents
submitted shall be in PDF format. Proposals must bear electronic signatures.
(Scanned signatures are acceptable)
Submit proposals to:
City of La Quinta or Mrodriguez@laquintaca.gov
City Manager's Office (Subject: RFP -Unified Communications & VOIP Phone
System)
78495 Calle Tampico
La Quinta, CA 92253
SUBMISSION RESTRICTIONS
No oral, text, fax, or telephone proposals or modifications will be considered.
Proposals received after the due date and time will not be accepted.
QUESTIONS or REQUESTS FOR CLARIFICATION
Any request for clarification or other questions concerning this RFP or
attachments must be submitted via e-mail to Mrodriguez@laquintaca.gov no
later than November 2, 2018 at 5:00 p.m. All responses will be e-mailed to those
on the list by 5:00 p.m. on November 16, 2018.
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RFP Timeline: (all dates are tentative
Date
Description
October 16, 2018
RFPs available to vendors
October 25, 2018
Onsite Network Assessment 1:30pm (Attendance Required
to Respond to RFP
November 2, 2018
Written questions from vendors due
November 16,
Written replies to vendor questions distributed to all known
2018
vendors
November 23,
RFP submissions due to City by 5:00pm
2018
November 2018
Evaluation of Proposals
*Top Vendors may be asked to provide 30-minute
November 2018
presentation
November 30,2018-
Notification to proceed, subject to signed documents and
*Tentative*
insurance requirements being satisfied.
RFP Evaluation:
The RFP shall be awarded to the vendor whose proposal is most advantageous
to the City with price and other factors considered. These include responses
to the RFP questions; demonstrated technical ability and expertise; reference
calls and/or recommendations; memberships, licenses, ISO certifications or
any other applicable membership or certifications; presentations to the
evaluation team (if applicable); on -site visits at vendor's site (if applicable);
product samples which the City may request as part of the RFP process; and
any additional criteria deemed appropriate by the City which would lend itself
to establishing the service provider's viability to perform the work as outlined
in this RFP. City may require all vendors to provide financial statements for
the past two years to determine each vendor's financial ability to provide long-
term service to the City. Proposals will become public record and those
documents that are confidential, or trade secrets, must be marked
accordingly.
RFPs that include the option of 0% financing/lease, whether manufacturer or
self -financed will receive priority consideration. Ongoing service agreements
included with the RFP must include specific response times and financial
penalties for the vendor if service -level agreement commitments are not met.
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City will require all vendors to provide cost estimates for required software
upgrades and maintenance for the next five years if these expenses are not
included in an ongoing service agreement.
Evaluation Criteria:
1. Qualifications of Firm
Strength and stability of the firm; strength, stability, experience and
technical competence of sub -consultants; logic of project organization;
adequacy of labor commitment.
2. Qualifications of Personnel
Qualifications, education, and experience of project staff; key personnel's
level of involvement in performing related work.
3. Related Experience
Experience in providing services like those requested herein; experience
working with public agencies; assessment by client references.
4. Completeness of Response
Completeness of response in accordance with RFP instructions;
exceptions to or deviation from the RFP requirements; inclusion of
required licenses and certifications.
5. Reasonableness of Cost and Price
Reasonableness of the individual firm -fixed prices and/or hourly rates,
and competitiveness of quoted firm -fixed prices with other proposals
received; adequacy of the data in support of figures quoted; basis on
which prices are quoted.
Acceptance of Proposal Content:
Vendor understands that the City reserves the right to award a contract without
further discussions or clarifications with vendors. Thus, the contents of the
RFP response and all pricing, terms, and statements contained therein will be
binding upon vendor. Upon acceptance of the proposal by City, the successful
proposal, including all terms, conditions and pricing contained therein, will be
incorporated into the awarded contract. Vendor understands that failure of the
potentially successful offer or to accept this obligation may result in the selection
of another offer or rejection of the submitted proposal.
Vendor must take great care to respond to all requirements of this RFP to the
maximum extent possible. Vendor must clearly identify any limitations and/or
exceptions to the requirements inherent in the proposed system. Vendor further
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understands that alternative approaches will be given consideration if the
proposed approach clearly offers increased benefits to City.
Cost of Preparing Proposals:
City of La Quinta is not liable for any costs incurred by vendors in the
preparation and presentation of proposals and demonstrations submitted in
response to this RFP.
Permits•
The vendor shall obtain and pay for any permits and licenses required for the
performance of the work, post all notices required by law, and comply with all
laws, ordinances, and regulations bearing on the conduct of the work, as
specified herein. On any work that requires an inspection certificate issued by
local authorities, National Board of Fire Underwriters, or any other governing
body, such inspection certificate(s) shall be obtained by and paid for by the
vendor. The chosen vendor shall procure all required certificates of
acceptance or of completions issued by the state, municipal or other authorities
and must deliver these to City.
Vendor Responsibility:
Unless otherwise stipulated, vendor shall provide, and pay for, all materials,
labor, tools, equipment, transportation, and other facilities necessary for the
performance and completion of the work. Vendor shall verify conditions at the
building, particularly door openings and passages. Any pieces too bulky for
existing facilities shall be hoisted and otherwise handled with apparatus as
required.
RFP Responses:
All materials submitted by the vendor in response to this RFP become the
sole property of City of La Quinta upon receipt of the proposal. The material
contained in these responses will be appended to the final contract, further
defining the contractual responsibilities of the vendor. City shall not
reimburse any vendor for the cost of responding to this RFP. Any
documentation that is to be considered confidential must clearly be identified
as confidential or it will become part of the public records of City.
Section 3: Summary of Requirements:
The new telephone, voicemail and unified messaging system design should
provide a uniform communication system for all City facilities and shall be
expandable at the convenience of the City. The new system must provide a
single system in terms of dialing, feature access, and administration. City
intends to have the new communications system administered from City Hall.
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City believes that a Voice over Internet Protocol (VoIP) solution would be
advantageous and wishes all vendors to make their proposals accordingly.
City would like a hosted phone system option to be made available in the
proposal with cost breakdown.
Network Assessment:
City of La Quinta understands and expects that the vendor will need to
conduct a full network assessment to determine the viability of
integrating and installing the new voice system onto the existing data
network. The needs and expectations of a converged network do place
different requirements on the network in terms of quality of service
(QOS), packet prioritization, cable quality, termination specifications,
etc. Although City believes that the network is voice ready, City desires
vendor to perform a full network assessment and determine what, if any,
network updates or quality mitigation processes must be achieved in
order to support the new communications system. Vendor will provide all
results of the assessment including necessary network maps, specification
thresholds, problem areas and the recommended solution and cost for
each.
Cable:
The network assessment should include the cost to test existing network
cabling. Vendor will provide cable from the wall to the phone. As the
installation is expected to be "in -line" with the handset/endpoint existing
between the wall jack and the computer, any additional cabling will be
provided by the vendor. The vendor will be responsible for wiring
connections from he VoIP system o any communications equipment
utilizing the VoIP system. Vendor is responsible for re -termination of services
from existing system to the new VoIP system. Any additional cabling/wiring
needed by the vendor to complete the installation should be included as part
of the RFP response.
Required Services:
• Unified Messaging - City also wishes to implement Unified Messaging
and integrate the VoIP system with the Office 365 2016 email system.
The vendor shall propose the best way to achieve this with full
functionality and with minimal impact on services. Vendor shall also
provide any costs necessary for licensing that may be required to achieve
this.
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• Enterprise Mobility - City wishes to enable our highly mobile workforce
to communicate on the device of their choosing regardless of location
(office, field, home etc.). The goal is constant connectivity and mobile
unified communications no matter the location. The solution should
essentially extend the features of the desk phone to the mobile device.
• Retention of Phone Records- Vendor should be able to retain City call
logs for per City Policy for 3 years. Citation GC34090
• Call Accounting System - A Call Accounting System (CAS) is required
and must be part of the base proposal for this system. The CAS must
include Call Dialing Report (CDR) for inbound, outbound and internal
calls and usage reports for all types of inbound, outbound and internal
calls. City is very concerned about the metrics for call length, number of
calls unanswered, going to voicemail and dropped calls. Please describe
your solution to the CAS and attach sample reports. Vendor should also
provide training for up to 3 employees in the administration, maintenance,
programming, and daily operation of the CAS.
• Automatic Call Distributor (ACD) - Representatives should be able to
log in to their phone/workstation and have calls routed to them in a design
that City and vendor agree upon.
• 911 Services - Emergency 911 Services are mandated for this system. The
vendor shall provide a solution for 911 dialing from within the network
that achieves all of the expected performance of a 911 system without
substantially changing any of the expected normal operations of the system.
If a staff person currently presses 911, it is expected that they will continue
to perform the same activity and achieve the same result. Additional
capabilities expected from the emergency call procedure are the ability to
initiate an emergency call to be automatically routed to other desks within
City.
Feature Set:
The list below is a partial list of features that have been requested. It is
provided as a baseline and as a starting point for the expected operations of
the system. City expects that the successful vendor will have experience
with corporations and other businesses of City's size and scope and will be
able to provide consulting advice, input and insight into what other
organizations are using, and to provide suggestions that will enhance the
usability and functionality of the system. Please identify which features are
standard and which are added cost.
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• Automatic call back
0 Find Me/Follow Me
• Unified Communication
• Group Call Pickup
• Call Waiting
• Fax/eFax Management/Fax to email/Fax Server
• Call Forward Busy / No Answer / All Calls
• Remote Maintenance / Administration
• Call Redirect
• Voice Mail
• Call Hold / Release
• Voice Mail forward to Email
• Call Park / Pickup
• Night/ After Hours Service
• Call Transfer
• Soft phone features
• Call Waiting
• Consistent and excellent voice quality
• Calling Line ID Name and Number
• Toll Charges, classes of service for Toll restriction
• Multiple Calls per Line Appearance
• Make/ Drop Conference
• Call Waiting Caller ID Name and Number
• Add On Conference
• Prime Line Select
• Conference bridging for internal and external
• Shared Extension on Multiple Phones
• Automatic alternate routing
• Bridged Call Appearances
• Call forward capability to external numbers
• Speaker Phone Capable
• SMDR (Station Message Detailed Report)
• Auto / Speed Dial
• Music on Hold
• Programmable Buttons w/ paperless labels
• Voice Mail Light Indicator
• Paging & Group Paging
• Remote Handsets
• Direct Inward Dial (DID)
• Voice over VPN
• Extension Dialing between Locations
• Integration with leading smart phones & tablets
(enterprise support & products for mobile)
Is Automatic Call Distribution (ACID) Groups
I@ SIP Client Capable
• Custom Call Routing (CCR)
• Call Recording
Single Point of Responsibility:
City expects to have a single point of contact, i.e. a single point of authority
and a single contracting entity for this project. City will not enter into any
agreement that does not provide a single point of accountability for the
installation of the system.
Technical Requirements:
The vendor must provide a complete system design showing the
integration of the voice network into the data network. Further, the vendor
must provide methodology for assuring voice quality throughout the
syste m
Core system servers, switches, call managers, and other equipment will be
installed in the City Data Center. Remote site equipment will be installed in
secure data closets at each remote site. Vendor will provide recommendations
and schematics showing the placement of the equipment in the appropriate
network racks or cabinets. If the amount of rack space is insufficient, vendor
shall make sure additional racks or cabinets are included in the bid.
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If vendor proposes a switching solution based on Power over Ethernet (POE),
vendor shall provide detailed specifications for the switching equipment,
pricing and placement for the equipment. Maintenance costs of this equipment
shall be reflected in the maintenance section of the response.
Redundancy/Failover.
It is the intent of this RFP to have a system that has failover capabilities in
case of system failure and to have an acceptable level of redundancy in case
of power failure or other incident. Please provide your solution to assure the
system is operational 24/7. It is our intent to explore the possibility of
installing another "backup" system at another location that calls can be
automatically rerouted to in the event of a main system failure. This system
may reside in data center City has selected for this purpose or within the
City of La Quinta. It must also be able to process additional calls during peak
times.
System Administration:
City Staff will administer the system. Installation of the new VoIP system will
include training for staff in system administration.
Remote administration of the system must be available to technical and
operations staff. Vendor to supply all additional equipment and software
needed for the system programming and operation.
Security:
The system should have security set features built in that allow the
administrator to remotely administer security levels of users. It should
fully integrate with City's Active Directory and should allow the
administrator to control class of service and class of restriction. The
winning bidder will also supply all system level passwords to the City.
Vendor Requirements:
Vendor will provide documentation showing call handling and device
addressing schemes, an initial inventory of equipment for each
completed location including model and serial numbers of phones,
switches, and routers, as well as any other relevant equipment.
Project Management:
Vendor is expected to provide a project manager for this installation that
will interface and become the main contact with the vendor for the duration
of the project. This project manager will be assigned to City throughout
the life of the project. City reserves the right to request a change in project
management based on performance.
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Warranty•
Vendor will provide a minimum one-year warranty on all equipment and
installation.
Maintenance and Sunnort:
Vendor shall provide City with a complete listing of available service and
support plans. These shall include the range of offered services including
the escalation plan and following levels of support:
• an itemized list of services for each site;
• ongoing maintenance cost;
• forecast any increase for 2-3 years for hardware, software maintenance,
licensing needs;
• vendor to provide detail of local support, hours or limits of
coverage for service and repairs;
• vendor to provide their maintenance plan options with
one hour or less response times; and
• provide software upgrade plans inclusive in maintenance.
Transition Plan:
City expects the installation of the new system to have little or no impact
to on -going operations. Vendor is expected to have experience in this
area and to provide City with a plan to accomplish this as follows:
• vendor to create a design to move the units off the old system to the
new system with minimized disruption to staff and to create a
preplanned schedule for notification purposes;
• vendor to provide how (and validate procedure) the parallel
process will migrate old to new; and
• all documentation, installation, reports, and materials must be
provided to City prior to commencement of installation, followed by
submission of any Moves, Adds, Changes (MAC).
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Telephone Locations and Count:
Phones
Site
Phone Counts
City Hall
140
City Library
1
City Yard
4
Museum
4
Senior Center
10
Grand Total
159
Switches
Model
Count
S horetel 4/80
10
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SECTION 4 - PRICING SCHEDULE:
Provide a pricing matrix for all equipment and services, including
switches, telephones, telephone cabling, labor, etc. All prices on
equipment must be itemized. The pricing must also reflect the cost of
taxes, shipping, and handling or any other costs of implementation.
Additionally, City reserves the right to purchase all or some of the
proposed solution.
City wishes to ascertain any/all maintenance costs and the length of the
warranty on the system. The maintenance cost should include the all-inclusive
hourly charge rates (during specified hours), any travel expenses to be
reimbursed, the percentage of mark up on any materials.
SECTION 5 - QUESTIONS TO VENDORS:
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Please include in your application your responses to the questions asked
below:
1. Introduction
a. Describe the full network assessment you will provide.
b. Indicate your ability to perform the cable installation and
connections.
2. Required Services
a. Indicate your plan of action to perform and experience in
performing the 911 services
b. Describe your solution to the Call Accounting System
c. Describe your solution to comply with City's proposed Unified
Messaging and migration to VoIP and Office 365 2016
3. Training
a. Indicate your comprehensive training solution to train City
employees. Indicate if this is a "train the trainer" implementation.
b. Indicate your comprehensive training solution to train employees,
with recommendations relative to staff time requirements.
c. Provide a complete list of off -premise training classes including
description, time required, location and target audience. Are the
costs for these serviced in the price schedule
d. Provide a summary of in-house training for end users.
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e. Indicate the number of manuals and operation handbooks to be
provided to each employee on site at each location, at no
additional cost to City
f. Indicate the method that City will use to obtain additional manuals
and /or handbooks.
4. Feature Set
a. A list of features was provide
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5. Single Point of Responsibility / Accountability
City's expectation is to have a single point of contact, i.e. a single point
of authority and a single contracting entity for this project. This is of a
critical nature for this RFP; a contract will NOT be awarded to a vendor
who does not have this single point of accountability. Indicate your
understanding and compliance with this requirement.
6. Technical Requirements
a.Provide required / recommended connectivity to implement the
proposed solution and pricing for recommended connectivity.
b.Provide a complete system design and methodology for assuring
system wide voice quality.
c. Recommend and illustrate equipment to be installed by City
d.Provide a solution to redundancy / failover in case of system wide
failure, ensuring that the system is operational.
e.VoIP will require specialized training for system administration staff.
Vendor will supply ALL additional equipment and software for system
programing and operation. Indicate your solution to this requirement.
f. System security features need to be built in allowing the
administrator to remotely assess all levels of users. Indicate your
ability to provide this level of security.
g.Provide documentation showing call handling and device addressing
schemas, initial equipment inventory for each location including
model/serial numbers, switches, routers, and other relevant
equipment.
h.The vendor ---provided project manager for installation and continuing
contact with the vendor is a critical position. City wishes to be able to
meet and interview this person as part of any finalist interview. Please
indicate concurrence with this philosophy.
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i. Vendor will provide below a complete listing of maintenance and support
services indicated and the range of services offered.
7. General Questions
a. How many years has your company been in business? How long
have you been providing telephone systems? What is your
company's primary line of business?
b. Provide a brief overview of your company (furnish your business
philosophy, mission statement, management structure,
organization chart, etc.).
c. How many employees do you have? What is the total years'
experience your employees have in this profession; what is the
average?
d. State the type of ownership of your company. Give the state and
date of your incorporation if applicable. List headquarters and
regional / full -service /office locations, and website address.
e. Provide the key contact name, title, address, telephone and fax
numbers. Also identify the person(s) authorized to contractually bind
the organization. Provide resumes for owners and key sales
personnel.
f. Please provide status of any current or pending litigation against
your company that might affect your ability to deliver the services
that you offer.
g. Do you anticipate that your company will be acquired in the
foreseeable future? Is your company planning to acquire any other
companies? If yes, please provide the names of the companies and
the nature of the business.
h.Include names of three (3) current customers (title and phone
numbers) that have had installations like that described in this RFP
and a letter of recommendation from each.
i. Please include reference names of former customers, if any,
(title and phone numbers) and the reasons for disengagement of
your services.
j. What type of insurance coverage do you carry? Describe the
amount of coverage.
k. Describe any other value-added services your company can provide.
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8. Summary
a.Explain in one page or less how your solution will differentiate you
from other vendors and why we should choose you as our
successful vendor. List the unique features that give your
company a competitive edge in the telephony industry
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AGREEMENT FOR CONTRACT SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is
made and entered into by and between the CITY OF LA QUINTA, ("City"), a
California municipal corporation, and , a
[insert type of business entity, e.g. sole
proprietorship, California Limited Liability Corporation, etc.] ("Contracting
Party"). The parties hereto agree as follows:
1. SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions
of this Agreement, Contracting Party shall provide those services related to
, Project No. NA ,
as specified in the "Scope of Services" attached hereto as "Exhibit A" and
incorporated herein by this reference (the "Services"). Contracting Party
represents and warrants that Contracting Party is a provider of first-class
work and/or services and Contracting Party is experienced in performing the
Services contemplated herein and, in light of such status and experience,
Contracting Party covenants that it shall follow industry standards in
performing the Services required hereunder, and that all materials, if any,
will be of good quality, fit for the purpose intended. For purposes of this
Agreement, the phrase "industry standards" shall mean those standards of
practice recognized by one or more first-class firms performing similar
services under similar circumstances.
1.2 Compliance with Law. All Services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules,
regulations, and laws of the City and any Federal, State, or local
governmental agency of competent jurisdiction.
1.3 Wage and Hour Compliance, Contracting Party shall comply with
applicable Federal, State, and local wage and hour laws.
1.4 Licenses, Permits, Fees and Assessments. Except as otherwise
specified herein, Contracting Party shall obtain at its sole cost and expense
such licenses, permits, and approvals as may be required by law for the
performance of the Services required by this Agreement, including a City of
La Quinta business license. Contracting Party and its employees, agents,
and subcontractors shall, at their sole cost and expense, keep in effect at all
times during the term of this Agreement any licenses, permits, and
approvals that are legally required for the performance of the Services
required by this Agreement. Contracting Party shall have the sole obligation
to pay for any fees, assessments, and taxes, plus applicable penalties and
interest, which may be imposed by law and arise from or are necessary for
the performance of the Services required by this Agreement, and shall
indemnify, defend (with counsel selected by City), and hold City, its elected
officials, officers, employees, and agents, free and harmless against any
such fees, assessments, taxes, penalties, or interest levied, assessed, or
imposed against City hereunder. Contracting Party shall be responsible for
all subcontractors' compliance with this Section.
1.5 Familiarity with Work. By executing this Agreement, Contracting
Party warrants that (a) it has thoroughly investigated and considered the
Services to be performed, (b) it has investigated the site where the Services
are to be performed, if any, and fully acquainted itself with the conditions
there existing, (c) it has carefully considered how the Services should be
performed, and (d) it fully understands the facilities, difficulties, and
restrictions attending performance of the Services under this Agreement.
Should Contracting Party discover any latent or unknown conditions
materially differing from those inherent in the Services or as represented by
City, Contracting Party shall immediately inform City of such fact and shall
not proceed except at Contracting Party's risk until written instructions are
received from the Contract Officer (as defined in Section 4.2 hereof).
1.6 Standard of Care. Contracting Party acknowledges and
understands that the Services contracted for under this Agreement require
specialized skills and abilities and that, consistent with this understanding,
Contracting Party's work will be held to an industry standard of quality and
workmanship. Consistent with Section 1.5 hereinabove, Contracting Party
represents to City that it holds the necessary skills and abilities to satisfy the
industry standard of quality as set forth in this Agreement. Contracting
Party shall adopt reasonable methods during the life of this Agreement to
furnish continuous protection to the Services performed by Contracting
Party, and the equipment, materials, papers, and other components thereof
to prevent losses or damages, and shall be responsible for all such damages,
to persons or property, until acceptance of the Services by City, except such
losses or damages as may be caused by City's own negligence. The
performance of Services by Contracting Party shall not relieve Contracting
Party from any obligation to correct any incomplete, inaccurate, or defective
work at no further cost to City, when such inaccuracies are due to the
negligence of Contracting Party.
1.7 Additional Services. In accordance with the terms and
conditions of this Agreement, Contracting Party shall perform services in
addition to those specified in the Scope of Services ("Additional Services")
only when directed to do so by the Contract Officer, provided that
Contracting Party shall not be required to perform any Additional Services
without compensation. Contracting Party shall not perform any Additional
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Services until receiving prior written authorization (in the form of a written
change order if Contracting Party is a contractor performing the Services)
from the Contract Officer, incorporating therein any adjustment in (i) the
Contract Sum, and/or (ii) the time to perform this Agreement, which said
adjustments are subject to the written approval of Contracting Party. It is
expressly understood by Contracting Party that the provisions of this Section
shall not apply to the Services specifically set forth in the Scope of Services
or reasonably contemplated therein. It is specifically understood and agreed
that oral requests and/or approvals of Additional Services shall be barred
and are unenforceable. Failure of Contracting Party to secure the Contract
Officer's written authorization for Additional Services shall constitute a
waiver of any and all right to adjustment of the Contract Sum or time to
perform this Agreement, whether by way of compensation, restitution,
quantum meruit, or the like, for Additional Services provided without the
appropriate authorization from the Contract Officer. Compensation for
properly authorized Additional Services shall be made in accordance with
Section 2.3 of this Agreement.
1.8 Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof are set forth in "Exhibit D"
(the "Special Requirements"), which is incorporated herein by this reference
and expressly made a part hereof. In the event of a conflict between the
provisions of the Special Requirements and any other provisions of this
Agreement, the provisions of the Special Requirements shall govern.
2. COMPENSATION.
2.1 Contract Sum. For the Services rendered pursuant to this
Agreement, Contracting Party shall be compensated in accordance with
"Exhibit 6" (the "Schedule of Compensation") in a total amount not to
exceed Dollars ($ )
(the "Contract Sum"), except as provided in Section 1.7. The method of
compensation set forth in the Schedule of Compensation may include a lump
sum payment upon completion, payment in accordance with the percentage
of completion of the Services, payment for time and materials based upon
Contracting Party's rate schedule, but not exceeding the Contract Sum, or
such other reasonable methods as may be specified in the Schedule of
Compensation. The Contract Sum shall include the attendance of
Contracting Party at all project meetings reasonably deemed necessary by
City; Contracting Party shall not be entitled to any additional compensation
for attending said meetings. Compensation may include reimbursement for
actual and necessary expenditures for reproduction costs, transportation
expense, telephone expense, and similar costs and expenses when and if
specified in the Schedule of Compensation. Regardless of the method of
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compensation set forth in the Schedule of Compensation, Contracting Party's
overall compensation shall not exceed the Contract Sum, except as provided
in Section 1.7 of this Agreement.
2.2 Method of Billing & Payment. Any month in which Contracting
Party wishes to receive payment, Contracting Party shall submit to City no
later than the tenth (10th) working day of such month, in the form approved
by City's Finance Director, an invoice for Services rendered prior to the date
of the invoice. Such invoice shall (1) describe in detail the Services
provided, including time and materials, and (2) specify each staff member
who has provided Services and the number of hours assigned to each such
staff member. Such invoice shall contain a certification by a principal
member of Contracting Party specifying that the payment requested is for
Services performed in accordance with the terms of this Agreement. Upon
approval in writing by the Contract Officer and subject to retention pursuant
to Section 8.3, City will pay Contracting Party for all items stated thereon
which are approved by City pursuant to this Agreement no later than thirty
(30) days after invoices are received by the City's Finance Department.
2.3 Compensation for Additional Services. Additional Services
approved in advance by the Contract Officer pursuant to Section 1.7 of this
Agreement shall be paid for in an amount agreed to in writing by both City
and Contracting Party in advance of the Additional Services being rendered
by Contracting Party. Any compensation for Additional Services amounting
to five percent (5%) or less of the Contract Sum may be approved by the
Contract Officer. Any greater amount of compensation for Additional
Services must be approved by the La Quinta City Council, the City Manager,
or Department Director, depending upon City laws, regulations, rules and
procedures concerning public contracting. Under no circumstances shall
Contracting Party receive compensation for any Additional Services unless
prior written approval for the Additional Services is obtained from the
Contract Officer pursuant to Section 1.7 of this Agreement.
3. PERFORMANCE SCHEDULE.
3.1 Time of Essence. Time is of the essence in the performance of
this Agreement. If the Services not completed in accordance with the
Schedule of Performance, as set forth in Section 3.2 and "Exhibit C", it is
understood that the City will suffer damage.
3.2 Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period
established in "Exhibit C" (the "Schedule of Performance"). Extensions to
the time period specified in the Schedule of Performance may be approved in
writing by the Contract Officer.
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3.3 Force Majeure. The time period specified in the Schedule of
Performance for performance of the Services rendered pursuant to this
Agreement shall be extended because of any delays due to unforeseeable
causes beyond the control and without the fault or negligence of Contracting
Party, including, but not restricted to, acts of God or of the public enemy,
fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes,
freight embargoes, acts of any governmental agency other than City, and
unusually severe weather, if Contracting Party shall within ten (10) days of
the commencement of such delay notify the Contract Officer in writing of the
causes of the delay. The Contract Officer shall ascertain the facts and the
extent of delay, and extend the time for performing the Services for the
period of the forced delay when and if in the Contract Officer's judgment
such delay is justified, and the Contract Officer's determination shall be final
and conclusive upon the parties to this Agreement. Extensions to time
period in the Schedule of Performance which are determined by the Contract
Officer to be justified pursuant to this Section shall not entitle the
Contracting Party to additional compensation in excess of the Contract Sum.
3.4 Term. Unless earlier terminated in accordance with the
provisions in Article 8.0 of this Agreement, the term of this agreement shall
commence on 1 , 20_ and terminate on ,
20 ("Initial Term"). This Agreement may be extended for
additional year(s) upon mutual agreement by both parties ("Extended
Term").
4. COORDINATION OF WORK.
4.1 Representative of Contracting Party. The following principals of
Contracting Party ("Principals") are hereby designated as being the principals
and representatives of Contracting Party authorized to act in its behalf with
respect to the Services specified herein and make all decisions in connection
therewith:
(a)
E-mail:
(b)
E-mail:
(c)
E-mail:
It is expressly understood that the experience, knowledge, capability,
and reputation of the foregoing Principals were a substantial inducement for
City to enter into this Agreement. Therefore, the foregoing Principals shall
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be responsible during the term of this Agreement for directing all activities of
Contracting Party and devoting sufficient time to personally supervise the
Services hereunder. For purposes of this Agreement, the foregoing
Principals may not be changed by Contracting Party and no other personnel
may be assigned to perform the Services required hereunder without the
express written approval of City.
4.2 Contract Officer. The "Contract Officer" shall be
or such other person as may be designated in
writing by the City Manager of City. It shall be Contracting Party's
responsibility to assure that the Contract Officer is kept informed of the
progress of the performance of the Services, and Contracting Party shall
refer any decisions, that must be made by City to the Contract Officer.
Unless otherwise specified herein, any approval of City required hereunder
shall mean the approval of the Contract Officer. The Contract Officer shall
have authority to sign all documents on behalf of City required hereunder to
carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The
experience, knowledge, capability, and reputation of Contracting Party, its
principals, and its employees were a substantial inducement for City to enter
into this Agreement. Except as set forth in this Agreement, Contracting
Party shall not contract or subcontract with any other entity to perform in
whole or in part the Services required hereunder without the express written
approval of City. In addition, neither this Agreement nor any interest herein
may be transferred, assigned, conveyed, hypothecated, or encumbered,
voluntarily or by operation of law, without the prior written approval of City.
Transfers restricted hereunder shall include the transfer to any person or
group of persons acting in concert of more than twenty five percent (25%)
of the present ownership and/or control of Contracting Party, taking all
transfers into account on a cumulative basis. Any attempted or purported
assignment or contracting or subcontracting by Contracting Party without
City's express written approval shall be null, void, and of no effect. No
approved transfer shall release Contracting Party of any liability hereunder
without the express consent of City.
4.4 Independent Contractor. Neither City nor any of its employees
shall have any control over the manner, mode, or means by which
Contracting Party, its agents, or its employees, perform the Services
required herein, except as otherwise set forth herein. City shall have no
voice in the selection, discharge, supervision, or control of Contracting
Party's employees, servants, representatives, or agents, or in fixing their
number or hours of service. Contracting Party shall perform all Services
required herein as an independent contractor of City and shall remain at all
In
times as to City a wholly independent contractor with only such obligations
as are consistent with that role. Contracting Party shall not at any time or in
any manner represent that it or any of its agents or employees are agents or
employees of City. City shall not in any way or for any purpose become or
be deemed to be a partner of Contracting Party in its business or otherwise
or a joint venture or a member of any joint enterprise with Contracting
Party. Contracting Party shall have no power to incur any debt, obligation,
or liability on behalf of City. Contracting Party shall not at any time or in
any manner represent that it or any of its agents or employees are agents or
employees of City. Except for the Contract Sum paid to Contracting Party as
provided in this Agreement, City shall not pay salaries, wages, or other
compensation to Contracting Party for performing the Services hereunder for
City. City shall not be liable for compensation or indemnification to
Contracting Party for injury or sickness arising out of performing the
Services hereunder. Notwithstanding any other City, state, or federal policy,
rule, regulation, law, or ordinance to the contrary, Contracting Party and any
of its employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to any compensation,
benefit, or any incident of employment by City, including but not limited to
eligibility to enroll in the California Public Employees Retirement System
("PERS") as an employee of City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for
PERS benefits. Contracting Party agrees to pay all required taxes on
amounts paid to Contracting Party under this Agreement, and to indemnify
and hold City harmless from any and all taxes, assessments, penalties, and
interest asserted against City by reason of the independent contractor
relationship created by this Agreement. Contracting Party shall fully comply
with the workers' compensation laws regarding Contracting Party and
Contracting Party's employees. Contracting Party further agrees to
indemnify and hold City harmless from any failure of Contracting Party to
comply with applicable workers' compensation laws. City shall have the
right to offset against the amount of any payment due to Contracting Party
under this Agreement any amount due to City from Contracting Party as a
result of Contracting Party's failure to promptly pay to City any
reimbursement or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Contracting Party
represents that it employs or will employ at its own expense all personnel
required for the satisfactory performance of any and all of the Services set
forth herein. Contracting Party represents that the Services required herein
will be performed by Contracting Party or under its direct supervision, and
that all personnel engaged in such work shall be fully qualified and shall be
authorized and permitted under applicable State and local law to perform
such tasks and services.
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4.6 City Cooperation. City shall provide Contracting Party with any
plans, publications, reports, statistics, records, or other data or information
pertinent to the Services to be performed hereunder which are reasonably
available to Contracting Party only from or through action by City.
5. INSURANCE.
5.1 Insurance. Prior to the beginning of any Services under this
Agreement and throughout the duration of the term of this Agreement,
Contracting Party shall procure and maintain, at its sole cost and expense,
and submit concurrently with its execution of this Agreement, policies of
insurance as set forth in "Exhibit E" (the "Insurance Requirements") which is
incorporated herein by this reference and expressly made a part hereof.
5.2 Proof of Insurance. Contracting Party shall provide Certificate of
Insurance to Agency along with all required endorsements. Certificate of
Insurance and endorsements must be approved by Agency's Risk Manager
prior to commencement of performance.
6. INDEMNIFICATION.
6.1 Indemnification. To the fullest extent permitted by law,
Contracting Party shall indemnify, protect, defend (with counsel selected by
City), and hold harmless City and any and all of its officers, employees,
agents, and volunteers as set forth in "Exhibit F" ("Indemnification") which is
incorporated herein by this reference and expressly made a part hereof.
7. RECORDS AND REPORTS.
7.1 Reports. Contracting Party shall periodically prepare and submit
to the Contract Officer such reports concerning Contracting Party's
performance of the Services required by this Agreement as the Contract
Officer shall require. Contracting Party hereby acknowledges that City is
greatly concerned about the cost of the Services to be performed pursuant
to this Agreement. For this reason, Contracting Party agrees that if
Contracting Party becomes aware of any facts, circumstances, techniques, or
events that may or will materially increase or decrease the cost of the
Services contemplated herein or, if Contracting Party is providing design
services, the cost of the project being designed, Contracting Party shall
promptly notify the Contract Officer of said fact, circumstance, technique, or
event and the estimated increased or decreased cost related thereto and, if
Contracting Party is providing design services, the estimated increased or
decreased cost estimate for the project being designed.
In
7.2 Records. Contracting Party shall keep, and require any
subcontractors to keep, such ledgers, books of accounts, invoices, vouchers,
canceled checks, reports (including but not limited to payroll reports),
studies, or other documents relating to the disbursements charged to City
and the Services performed hereunder (the "Books and Records"), as shall
be necessary to perform the Services required by this Agreement and enable
the Contract Officer to evaluate the performance of such Services. Any and
all such Books and Records shall be maintained in accordance with generally
accepted accounting principles and shall be complete and detailed. The
Contract Officer shall have full and free access to such Books and Records at
all times during normal business hours of City, including the right to inspect,
copy, audit, and make records and transcripts from such Books and Records.
Such Books and Records shall be maintained for a period of three (3) years
following completion of the Services hereunder, and City shall have access to
such Books and Records in the event any audit is required. In the event of
dissolution of Contracting Party's business, custody of the Books and
Records may be given to City, and access shall be provided by Contracting
Party's successor in interest. Under California Government Code
Section 8546.7, if the amount of public funds expended under this
Agreement exceeds Ten Thousand Dollars ($10,000.00), this Agreement
shall be subject to the examination and audit of the State Auditor, at the
request of City or as part of any audit of City, for a period of three (3) years
after final payment under this Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps,
designs, photographs, studies, surveys, data, notes, computer files, reports,
records, documents, and other materials plans, drawings, estimates, test
data, survey results, models, renderings, and other documents or works of
authorship fixed in any tangible medium of expression, including but not
limited to, physical drawings, digital renderings, or data stored digitally,
magnetically, or in any other medium prepared or caused to be prepared by
Contracting Party, its employees, subcontractors, and agents in the
performance of this Agreement (the "Documents and Materials") shall be the
property of City and shall be delivered to City upon request of the Contract
Officer or upon the expiration or termination of this Agreement, and
Contracting Party shall have no claim for further employment or additional
compensation as a result of the exercise by City of its full rights of ownership
use, reuse, or assignment of the Documents and Materials hereunder. Any
use, reuse or assignment of such completed Documents and Materials for
other projects and/or use of uncompleted documents without specific written
authorization by Contracting Party will be at City's sole risk and without
liability to Contracting Party, and Contracting Party's guarantee and
warranties shall not extend to such use, revise, or assignment. Contracting
Party may retain copies of such Documents and Materials for its own use.
WE
Contracting Party shall have an unrestricted right to use the concepts
embodied therein. All subcontractors shall provide for assignment to City of
any Documents and Materials prepared by them, and in the event
Contracting Party fails to secure such assignment, Contracting Party shall
indemnify City for all damages resulting therefrom.
7.4 In the event City or any person, firm, or corporation authorized
by City reuses said Documents and Materials without written verification or
adaptation by Contracting Party for the specific purpose intended and causes
to be made or makes any changes or alterations in said Documents and
Materials, City hereby releases, discharges, and exonerates Contracting
Party from liability resulting from said change. The provisions of this clause
shall survive the termination or expiration of this Agreement and shall
thereafter remain in full force and effect.
7.5 Licensing of Intellectual Property. This Agreement creates a
non-exclusive and perpetual license for City to copy, use, modify, reuse, or
sublicense any and all copyrights, designs, rights of reproduction, and other
intellectual property embodied in the Documents and Materials. Contracting
Party shall require all subcontractors, if any, to agree in writing that City is
granted a non-exclusive and perpetual license for the Documents and
Materials the subcontractor prepares under this Agreement. Contracting
Party represents and warrants that Contracting Party has the legal right to
license any and all of the Documents and Materials. Contracting Party
makes no such representation and warranty in regard to the Documents and
Materials which were prepared by design professionals other than
Contracting Party or provided to Contracting Party by City. City shall not be
limited in any way in its use of the Documents and Materials at any time,
provided that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
7.6 Release of Documents. The Documents and Materials shall not
be released publicly without the prior written approval of the Contract Officer
or as required by law. Contracting Party shall not disclose to any other
entity or person any information regarding the activities of City, except as
required by law or as authorized by City.
7.7 Confidential or Personal Identifying Information. Contracting
Party covenants that all City data, data lists, trade secrets, documents with
personal identifying information, documents that are not public records,
draft documents, discussion notes, or other information, if any, developed or
received by Contracting Party or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Contracting Party to
any person or entity without prior written authorization by City or unless
required by law. City shall grant authorization for disclosure if required by
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any lawful administrative or legal proceeding, court order, or similar
directive with the force of law. All City data, data lists, trade secrets,
documents with personal identifying information, documents that are not
public records, draft documents, discussions, or other information shall be
returned to City upon the termination or expiration of this Agreement.
Contracting Party's covenant under this section shall survive the termination
or expiration of this Agreement.
8. ENFORCEMENT OF AGREEMENT.
8.1 California Law. This Agreement shall be interpreted, construed,
and governed both as to validity and to performance of the parties in
accordance with the laws of the State of California. Legal actions concerning
any dispute, claim, or matter arising out of or in relation to this Agreement
shall be instituted in the Superior Court of the County of Riverside! State of
California, or any other appropriate court in such county, and Contracting
Party covenants and agrees to submit to the personal jurisdiction of such
court in the event of such action.
8.2 Disputes. In the event of any dispute arising under this
Agreement, the injured party shall notify the injuring party in writing of its
contentions by submitting a claim therefore. The injured party shall
continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such
notice and completes the cure of such default within forty-five (45) days
after service of the notice, or such longer period as may be permitted by the
Contract Officer; provided that if the default is an immediate danger to the
health, safety, or general welfare, City may take such immediate action as
City deems warranted. Compliance with the provisions of this Section shall
be a condition precedent to termination of this Agreement for cause and to
any legal action, and such compliance shall not be a waiver of any party's
right to take legal action in the event that the dispute is not cured, provided
that nothing herein shall limit City's right to terminate this Agreement
without cause pursuant to this Article 8.0. During the period of time that
Contracting Party is in default, City shall hold all invoices and shall, when the
default is cured, proceed with payment on the invoices. In the alternative,
City may, in its sole discretion, elect to pay some or all of the outstanding
invoices during any period of default.
8.3 Retention of Funds. City may withhold from any monies payable
to Contracting Party sufficient funds to compensate City for any losses,
costs, liabilities, or damages it reasonably believes were suffered by City due
to the default of Contracting Party in the performance of the Services
required by this Agreement.
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8.4 Waiver. No delay or omission in the exercise of any right or
remedy of a non -defaulting party on any default shall impair such right or
remedy or be construed as a waiver. City's consent or approval of any act
by Contracting Party requiring City's consent or approval shall not be
deemed to waive or render unnecessary City's consent to or approval of any
subsequent act of Contracting Party. Any waiver by either party of any
default must be in writing and shall not be a waiver of any other default
concerning the same or any other provision of this Agreement.
8.5 Rights and Remedies are Cumulative. Except with respect to
rights and remedies expressly declared to be exclusive in this Agreement,
the rights and remedies of the parties are cumulative and the exercise by
either party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
8.6 Legal Action. In addition to any other rights or remedies, either
party may take legal action, at law or at equity, to cure, correct, or remedy
any default, to recover damages for any default, to compel specific
performance of this Agreement, to obtain declaratory or injunctive relief, or
to obtain any other remedy consistent with the purposes of this Agreement.
8.7 Termination Prior To Expiration Of Term. This Section shall
govern any termination of this Agreement, except as specifically provided in
the following Section for termination for cause. City reserves the right to
terminate this Agreement at any time, with or without cause, upon thirty
(30) days' written notice to Contracting Party. Upon receipt of any notice of
termination, Contracting Party shall immediately cease all Services
hereunder except such as may be specifically approved by the Contract
Officer. Contracting Party shall be entitled to compensation for all Services
rendered prior to receipt of the notice of termination and for any Services
authorized by the Contract Officer thereafter in accordance with the
Schedule of Compensation or such as may be approved by the Contract
Officer, except amounts held as a retention pursuant to this Agreement.
8.8 Termination for Default of Contracting Party. If termination is
due to the failure of Contracting Party to fulfill its obligations under this
Agreement, Contracting Party shall vacate any City -owned property which
Contracting Party is permitted to occupy hereunder and City may, after
compliance with the provisions of Section 8.2, take over the Services and
prosecute the same to completion by contract or otherwise, and Contracting
Party shall be liable to the extent that the total cost for completion of the
Services required hereunder exceeds the compensation herein stipulated
(provided that City shall use reasonable efforts to mitigate such damages),
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and City may withhold any payments to Contracting Party for the purpose of
setoff or partial payment of the amounts owed City.
8.9 Attorneys' Fees. If either party to this Agreement is required to
initiate or defend or made a party to any action or proceeding in any way
connected with this Agreement, the prevailing party in such action or
proceeding, in addition to any other relief which may be granted, whether
legal or equitable, shall be entitled to reasonable attorneys' fees; provided,
however, that the attorneys' fees awarded pursuant to this Section shall not
exceed the hourly rate paid by City for legal services multiplied by the
reasonable number of hours spent by the prevailing party in the conduct of
the litigation. Attorneys' fees shall include attorneys' fees on any appeal,
and in addition a party entitled to attorneys' fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and
discovery, and all other necessary costs the court allows which are incurred
in such litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment. The court may set such fees in the same
action or in a separate action brought for that purpose.
9. CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1 Non -liability of City Officers and Employees. No officer, official,
employee, agent, representative, or volunteer of City shall be personally
liable to Contracting Party, or any successor in interest, in the event or any
default or breach by City or for any amount which may become due to
Contracting Party or to its successor, or for breach of any obligation of the
terms of this Agreement.
9.2 Conflict of Interest. Contracting Party covenants that neither it,
nor any officer or principal of it, has or shall acquire any interest, directly or
indirectly, which would conflict in any manner with the interests of City or
which would in any way hinder Contracting Party's performance of the
Services under this Agreement. Contracting Party further covenants that in
the performance of this Agreement, no person having any such interest shall
be employed by it as an officer, employee, agent, or subcontractor without
the express written consent of the Contract Officer. Contracting Party
agrees to at all times avoid conflicts of interest or the appearance of any
conflicts of interest with the interests of City in the performance of this
Agreement.
No officer or employee of City shall have any financial interest,
direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to this Agreement which effects his
financial interest or the financial interest of any corporation, partnership or
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association in which he is, directly or indirectly, interested, in violation of
any State statute or regulation. Contracting Party warrants that it has not
paid or given and will not pay or give any third party any money or other
consideration for obtaining this Agreement.
9.3 Covenant against Discrimination. Contracting Party covenants
that, by and for itself, its heirs, executors, assigns, and all persons claiming
under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of any
impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry
in the performance of this Agreement. Contracting Party shall take
affirmative action to insure that applicants are employed and that employees
are treated during employment without regard to their race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry.
10. MISCELLANEOUS PROVISIONS.
10.1 Notice. Any notice, demand, request, consent, approval, or
communication either party desires or is required to give the other party or
any other person shall be in writing and either served personally or sent by
prepaid, first-class mail to the address set forth below. Either party may
change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from
the time of mailing if mailed as provided in this Section.
To City:
CITY OF LA QUINTA
Attention: [insert Contract Officer -
Director decides]
78-495 Calle Tampico
La Quinta, California 92253
To Contracting Party:
10.2 Interpretation. The terms of this Agreement shall be construed
in accordance with the meaning of the language used and shall not be
construed for or against either party by reason of the authorship of this
Agreement or any other rule of construction which might otherwise apply.
10.3 Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only
and shall not limit or otherwise affect the terms of this Agreement.
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10.4 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, and such counterparts shall
constitute one and the same instrument
10.5 Integrated Agreement. This Agreement including the exhibits
hereto is the entire, complete, and exclusive expression of the
understanding of the parties. It is understood that there are no oral
agreements between the parties hereto affecting this Agreement and this
Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements, and understandings, if any, between the parties,
and none shall be used to interpret this Agreement.
10.6 Amendment. No amendment to or modification of this
Agreement shall be valid unless made in writing and approved by
Contracting Party and by the City Council of City. The parties agree that this
requirement for written modifications cannot be waived and that any
attempted waiver shall be void.
10.7 Severability. In the event that any one or more of the articles,
phrases, sentences, clauses, paragraphs, or sections contained in this
Agreement shall be declared invalid or unenforceable, such invalidity or
unenforceability shall not affect any of the remaining articles, phrases,
sentences, clauses, paragraphs, or sections of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder unless the invalid provision is so material that its
invalidity deprives either party of the basic benefit of their bargain or
renders this Agreement meaningless.
10.8 Unfair Business Practices Claims. In entering into this
Agreement, Contracting Party offers and agrees to assign to City all rights,
title, and interest in and to all causes of action it may have under Section 4
of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2,
(commencing with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or materials
related to this Agreement. This assignment shall be made and become
effective at the time City renders final payment to Contracting Party without
further acknowledgment of the parties.
10.9 No Third Party Beneficiaries. With the exception of the specific
provisions set forth in this Agreement, there are no intended third -party
beneficiaries under this Agreement and no such other third parties shall have
any rights or obligations hereunder.
10.10Authority. The persons executing this Agreement on behalf of
each of the parties hereto represent and warrant that (i) such party is duly
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organized and existing, (ii) they are duly authorized to execute and deliver
this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and
(iv) that entering into this Agreement does not violate any provision of any
other Agreement to which said party is bound. This Agreement shall be
binding upon the heirs, executors, administrators, successors, and assigns of
the parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the dates stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
FRANK J. SPEVACEK, City Manager
City of La Quinta, California
Dated:
ATTEST:
MONIKA RADEVA, City Clerk
La Quinta, California
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
CONTRACTING PARTY:
By:
Name:
Title:
By:
Name:
Title:
(DIRECTOR TO DETERMINE IF THE FOLLOWING IS TO BE FOLLOWED OR
DELETED:)
NOTE: (1) TWO SIGNATURES ARE REQUIRED IF A CORPORATION'S
BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE STATE THAT TWO SIGNATURES ARE REQUIRED
ON CONTRACTS, AGREEMENTS, AMENDMENTS, CHANGE ORDERS, ETC.
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(2)CONTRACTING PARTY'S SIGNATURES SHALL BE DULY
NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONTRACTING PARTY'S
BUSINESS ENTITY.
sm
Exhibit A
Scope of Services
1. Services to be Provided:
[TO BE PROVIDED BY STAFF (include location of work)]
2. Performance Standards:
[TO BE PROVIDED BY STAFF]
•S
[See Attached]
Exhibit A
Page 1 of 5 Last revised summer 2017
ADDENDUM TO AGREEMENT
Re: Scope of Services
If the Scope of Services include construction, alteration, demolition,
installation, repair, or maintenance affecting real property or structures or
improvements of any kind appurtenant to real property, the following apply:
1. Prevailing Wage Compliance. If Contracting Party is a contractor
performing public works and maintenance projects, as described in this
Section 1.3, Contracting Party shall comply with applicable Federal, State,
and local laws. Contracting Party is aware of the requirements of California
Labor Code Sections 1720, et seq., and 1770, et seq., as well as California
Code of Regulations, Title 8, Sections 16000, et seq., (collectively, the
"Prevailing Wage Laws"), and La Quinta Municipal Code Section 3.12.040,
which require the payment of prevailing wage rates and the performance of
other requirements on "Public works" and "Maintenance" projects. If the
Services are being performed as part of an applicable "Public works" or
"Maintenance" project, as defined by the Prevailing Wage Laws, and if
construction work over twenty-five thousand dollars ($25,000.00) and/or
alterations, demolition, repair or maintenance work over fifteen thousand
dollars ($15,000.00) is entered into or extended on or after January 1, 2015
by this Agreement„ Contracting Party agrees to fully comply with such
Prevailing Wage Laws including, but not limited to, requirements related to
the maintenance of payroll records and the employment of apprentices.
Pursuant to California Labor Code Section 1725.5, no contractor or
subcontractor may be awarded a contract for public work on a "Public works"
project unless registered with the California Department of Industrial
Relations ("DIR") at the time the contract is awarded. If the Services are
being performed as part of an applicable "Public works" or "Maintenance"
project, as defined by the Prevailing Wage Laws, this project is subject to
compliance monitoring and enforcement by the DIR. Contracting Party will
maintain and will require all subcontractors to maintain valid and current
DIR Public Works contractor registration during the term of this Agreement.
Contracting Party shall notify City in writing immediately, and in no case
more than twenty-four (24) hours, after receiving any information that
Contracting Party's or any of its subcontractor's DIR registration status has
been suspended, revoked, expired, or otherwise changed. It is understood
that it is the responsibility of Contracting Party to determine the correct
salary scale. Contracting Party shall make copies of the prevailing rates of
per diem wages for each craft, classification, or type of worker needed to
execute the Services available to interested parties upon request, and shall
post copies at Contracting Party's principal place of business and at the
project site, if any. The statutory penalties for failure to pay prevailing wage
or to comply with State wage and hour laws will be enforced. Contracting
Exhibit A
Page 2of5
Party must forfeit to City TWENTY FIVE DOLLARS ($25.00) per day for each
worker who works in excess of the minimum working hours when
Contracting Party does not pay overtime. In accordance with the provisions
of Labor Code Sections 1810 et seq., eight (8) hours is the legal working
day. Contracting Party also shall comply with State law requirements to
maintain payroll records and shall provide for certified records and
inspection of records as required by California Labor Code Section 1770 et
seq., including Section 1776. In addition to the other indemnities provided
under this Agreement, Contracting Party shall defend (with counsel selected
by City), indemnify, and hold City, its elected officials, officers, employees,
and agents free and harmless from any claim or liability arising out of any
failure or alleged failure to comply with the Prevailing Wage Laws. It is
agreed by the parties that, in connection with performance of the Services,
including, without limitation, any and all "Public works" (as defined by the
Prevailing Wage Laws), Contracting Party shall bear all risks of payment or
non-payment of prevailing wages under California law and/or the
implementation of Labor Code Section 1781, as the same may be amended
from time to time, and/or any other similar law. Contracting Party
acknowledges and agrees that it shall be independently responsible for
reviewing the applicable laws and regulations and effectuating compliance
with such laws. Contracting Party shall require the same of all
subcontractors.
2. Retention. Payments shall be made in accordance with the
provisions of Article 2.0 of the Agreement. In accordance with said Sections,
City shall pay Contracting Party a sum based upon ninety-five percent (95%)
of the Contract Sum apportionment of the labor and materials incorporated
into the Services under this Agreement during the month covered by said
invoice. The remaining five percent (5%) thereof shall be retained as
performance security to be paid to Contracting Party within sixty (60) days
after final acceptance of the Services by the City Council of City, after
Contracting Party has furnished City with a full release of all undisputed
payments under this Agreement, if required by City. In the event there are
any claims specifically excluded by Contracting Party from the operation of
the release, City may retain proceeds (per Public Contract Code § 7107) of
up to one hundred fifty percent (150%) of the amount in dispute. City's
failure to deduct or withhold shall not affect Contracting Party's obligations
under the Agreement.
3. Utility Relocation. City is responsible for removal, relocation, or
protection of existing main or trunkline utilities to the extent such utilities
were not identified in the invitation for bids or specifications. City shall
reimburse Contracting Party for any costs incurred in locating, repairing
damage not caused by Contracting Party, and removing or relocating such
Exhibit A
Page 3 of 5
unidentified utility facilities. Contracting Party shall not be assessed
liquidated damages for delay arising from the removal or relocation of such
unidentified utility facilities.
4. Trenches or Excavations. Pursuant to California Public Contract
Code Section 7104, in the event the work included in this Agreement
requires excavations more than four (4) feet in depth, the following shall
apply:
(a) Contracting Party shall promptly, and before the following
conditions are disturbed, notify City, in writing, of any: (1) material that
Contracting Party believes may be material that is hazardous waste, as
defined in Section 25117 of the Health and Safety Code, that is required to
be removed to a Class I, Class II, or Class III disposal site in accordance
with provisions of existing law; (2) subsurface or latent physical conditions
at the site different from those indicated by information about the site made
available to bidders prior to the deadline for submitting bids; or (3) unknown
physical conditions at the site of any unusual nature, different materially
from those ordinarily encountered and generally recognized as inherent in
work of the character provided for in the Agreement.
(b) City shall promptly investigate the conditions, and if it
finds that the conditions do materially so differ, or do involve hazardous
waste, and cause a decrease or increase in Contracting Party's cost of, or
the time required for, performance of any part of the work shall issue a
change order per Section 1.8 of the Agreement.
(c) in the event that a dispute arises between City and
Contracting Party whether the conditions materially differ, or involve
hazardous waste, or cause a decrease or increase in Contracting Party's cost
of, or time required for, performance of any part of the work, Contracting
Party shall not be excused from any scheduled completion date provided for
by this Agreement, but shall proceed with all work to be performed under
this Agreement. Contracting Party shall retain any and all rights provided
either by contract or by law which pertain to the resolution of disputes and
protests between the contracting Parties.
5. Safety. Contracting Party shall execute and maintain its work so
as to avoid injury or damage to any person or property. In carrying out the
Services, Contracting Party shall at all times be in compliance with all
applicable local, state, and federal laws, rules and regulations, and shall
exercise all necessary precautions for the safety of employees appropriate to
the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be
limited to: (A) adequate life protection and lifesaving equipment and
Exhibit A
Page 4of5
procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders,
bridges, gang planks, confined space procedures, trenching and shoring,
equipment and other safety devices, equipment and wearing apparel as are
necessary or lawfully required to prevent accidents or injuries; and
(C) adequate facilities for the proper inspection and maintenance of all
safety measures.
6. Liquidated Damages. Since the determination of actual damages
for any delay in performance of the Agreement would be extremely difficult
or impractical to determine in the event of a breach of this Agreement,
Contracting Party shall be liable for and shall pay to City the sum of One
Thousand dollars ($1,000.00) as liquidated damages for each working day of
delay in the performance of any of the Services required hereunder, as
specified in the Schedule of Performance. In addition, liquidated damages
may be assessed for failure to comply with the emergency call out
requirements, if any, described in the Scope of Services. City may withhold
from any moneys payable on account of the Services performed by
Contracting Party any accrued liquidated damages.
Exhibit A
Page 5 of 5
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for
in Section 2.3 of this Agreement, the maximum total compensation to be
paid to Contracting Party under this Agreement is
($ ) ("Contract Sum"). The
Contract Sum shall be paid to Contracting Party in installment payments
made on a monthly basis and in an amount identified in Contracting Party's
schedule of compensation attached hereto for the work tasks performed and
properly invoiced by Contracting Party in conformance with Section 2.2 of
this Agreement.
[insert Contracting Party's schedule of compensation]
Exhibit B
Page 1of1
Exhibit C
Schedule of Performance
Contracting Party shall complete all services identified in the Scope of
Services, Exhibit A of this Agreement, in accordance with the Project
Schedule below [or... attached hereto and incorporated herein by this
reference].
[insert Project Schedule]
Exhibit C
Page 1of1
Exhibit D
Special Requirements
[insert Special Requirements or indicate, "None" if there are none]
Exhibit D
Page 1of1
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 Om ssions Liability
$1,000,000 (per claim and aggregate)
Workers' Compensation
(per statutory requirements)
Must include the following endorsements:
Workers Compensation with Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if
applicable
Contracting Party shall procure and maintain, at its cost, and
submit concurrently with its execution of this Agreement, Commercial
General Liability insurance against all claims for injuries against persons or
damages to property resulting from Contracting Party's acts or omissions
rising out of or related to Contracting Party's performance under this
Agreement. The insurance policy shall contain a severability of interest
clause providing that the coverage shall be primary for losses arising out of
Contracting Party's performance hereunder and neither City nor its insurers
shall be required to contribute to any such loss. An endorsement evidencing
the foregoing and naming the City and its officers and employees as
additional insured (on the Commercial General Liability policy only) must be
submitted concurrently with the execution of this Agreement and approved
by City prior to commencement of the services hereunder.
Exhibit E
Page 1 of 6
Contracting Party shall carry automobile liability insurance of
$1,000,000 per accident against all claims for injuries against persons or
damages to property arising out of the use of any automobile by Contracting
Party, its officers, any person directly or indirectly employed by Contracting
Party, any subcontractor or agent, or anyone for whose acts any of them
may be liable, arising directly or indirectly out of or related to Contracting
Party's performance under this Agreement. If Contracting Party or
Contracting Party's employees will use personal autos in any way on this
project, Contracting Party shall provide evidence of personal auto liability
coverage for each such person. The term "automobile" includes, but is not
limited to, a land motor vehicle, trailer or semi -trailer designed for travel on
public roads. The automobile insurance policy shall contain a severability of
interest clause providing that coverage shall be primary for losses arising out
of Contracting Party's performance hereunder and neither City nor its
insurers shall be required to contribute to such loss.
Professional Liability or Errors and Omissions Insurance as
appropriate shall be written on a policy form coverage specifically designed
to protect against acts, errors or omissions of the Contracting Party and
"Covered Professional Services" as designated in the policy must specifically
include work performed under this agreement. The policy limit shall be no
less than $1,000,000 per claim and in the aggregate. The policy must "pay
on behalf of" the insured and must include a provision establishing the
insurer's duty to defend. The policy retroactive date shall be on or before
the effective date of this agreement.
Contracting Party shall carry Workers' Compensation Insurance in
accordance with State Worker's Compensation laws with employer's liability
limits no less than $1,000,000 per accident or disease.
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:
Exhibit E
Page 2of6
a. Obtain such insurance and deduct and retain the amount of
the premiums for such insurance from any sums due under this Agreement.
b. Order Contracting Party to stop work under this Agreement
and/or withhold any payment(s) which become due to Contracting Party
hereunder until Contracting Party demonstrates compliance with the
requirements hereof.
C. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative
to any other remedies City may have. The above remedies are not the
exclusive remedies for Contracting Party's failure to maintain or secure
appropriate policies or endorsements. Nothing herein contained shall be
construed as limiting in any way the extent to which Contracting Party may
be held responsible for payments of damages to persons or property
resulting from Contracting Party's or its subcontractors' performance of work
under this Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage
by Contracting Party. Contracting Party and City agree to the following with
respect to insurance provided by Contracting Party:
1. Contracting Party agrees to have its insurer endorse the third
party general liability coverage required herein to include as additional
insureds City, its officials, employees, and agents, using standard ISO
endorsement No. CG 2010 with an edition prior to 1992. Contracting Party
also agrees to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this
Agreement shall prohibit Contracting Party, or Contracting Party's
employees, or agents, from waiving the right of subrogation prior to a loss.
Contracting Party agrees to waive subrogation rights against City regardless
of the applicability of any insurance proceeds, and to require all contractors
and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contracting Party
and available or applicable to this Agreement are intended to apply to the
full extent of the policies. Nothing contained in this Agreement or any other
agreement relating to City or its operations limits the application of such
insurance coverage.
4. None of the coverages required herein will be in compliance with
these requirements if they include any limiting endorsement of any kind that
has not been first submitted to City and approved of in writing.
Exhibit E
Page 3 of 6
5. No liability policy shall contain any provision or definition that
would serve to eliminate so-called "third party action over" claims, including
any exclusion for bodily injury to an employee of the insured or of any
contractor or subcontractor.
6. All coverage types and limits required are subject to approval,
modification and additional requirements by the City, as the need arises.
Contracting Party shall not make any reductions in scope of coverage (e.g.
elimination of contractual liability or reduction of discovery period) that may
affect City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements,
consisting of certificates of insurance evidencing all of the coverages
required and an additional insured endorsement to Contracting Party's
general liability policy, shall be delivered to City at or prior to the execution
of this Agreement. In the event such proof of any insurance is not delivered
as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to
obtain any insurance it deems necessary to protect its interests under this or
any other agreement and to pay the premium. Any premium so paid by City
shall be charged to and promptly paid by Contracting Party or deducted from
sums due Contracting Party, at City option.
8. It is acknowledged by the parties of this agreement that all
insurance coverage required to be provided by Contracting Party or any
subcontractor, is intended to apply first and on a primary, non-contributing
basis in relation to any other insurance or self-insurance available to City.
9. Contracting Party agrees to ensure that subcontractors, and any
other party involved with the project that is brought onto or involved in the
project by Contracting Party, provide the same minimum insurance coverage
required of Contracting Party. Contracting Party agrees to monitor and
review all such coverage and assumes all responsibility for ensuring that
such coverage is provided in conformity with the requirements of this
section. Contracting Party agrees that upon request, all agreements with
subcontractors and others engaged in the project will be submitted to City
for review.
10. Contracting Party agrees not to self -insure or to use any self -
insured retentions or deductibles on any portion of the insurance required
herein (with the exception of professional liability coverage, if required) and
further agrees that it will not allow any contractor, subcontractor, Architect,
Engineer or other entity or person in any way involved in the performance of
work on the project contemplated by this agreement to self -insure its
obligations to City. If Contracting Party's existing coverage includes a
Exhibit E
Page 4of6
deductible or self -insured retention, the deductible or self -insured retention
must be declared to the City. At that time the City shall review options with
the Contracting Party, which may include reduction or elimination of the
deductible or self -insured retention, substitution of other coverage, or other
solutions.
11. The City reserves the right at any time during the term of this
Agreement to change the amounts and types of insurance required by giving
the Contracting Party ninety (90) days advance written notice of such
change. If such change results in substantial additional cost to the
Contracting Party, the City will negotiate additional compensation
proportional to the increased benefit to City.
12. For purposes of applying insurance coverage only, this
Agreement will be deemed to have been executed immediately upon any
party hereto taking any steps that can be deemed to be in furtherance of or
towards performance of this Agreement.
13. Contracting Party acknowledges and agrees that any actual or
alleged failure on the part of City to inform Contracting Party of non-
compliance with any insurance requirement in no way imposes any
additional obligations on City nor does it waive any rights hereunder in this
or any other regard.
14. Contracting Party will renew the required coverage annually as
long as City, or its employees or agents face an exposure from operations of
any type pursuant to this agreement. This obligation applies whether or not
the agreement is canceled or terminated for any reason. Termination of this
obligation is not effective until City executes a written statement to that
effect.
15. Contracting Party shall provide proof that policies of insurance
required herein expiring during the term of this Agreement have been
renewed or replaced with other policies providing at least the same
coverage. Proof that such coverage has been ordered shall be submitted
prior to expiration. A coverage binder or letter from Contracting Party's
insurance agent to this effect is acceptable. A certificate of insurance and 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
Exhibit E
Page 5 of 6
defenses under such laws with respect to City, its employees, officials, and
agents.
17. Requirements of specific coverage features or limits contained in
this section are not intended as limitations on coverage, limits or other
requirements nor as a waiver of any coverage normally provided by any
given policy. Specific reference to a given coverage feature is for purposes
of clarification only as it pertains to a given issue, and is not intended by any
party or insured to be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and
distinct from any other provision in this Agreement and are intended by the
parties here to be interpreted as such.
19. The requirements in this Exhibit supersede all other sections and
provisions of this Agreement to the extent that any other section or
provision conflicts with or impairs the provisions of this Exhibit.
20. Contracting Party agrees to be responsible for ensuring that no
contract used by any party involved in any way with the project reserves the
right to charge City or Contracting Party for the cost of additional insurance
coverage required by this agreement. Any such provisions are to be deleted
with reference to City. It is not the intent of City to reimburse any third
party for the cost of complying with these requirements. There shall be no
recourse against City for payment of premiums or other amounts with
respect thereto.
21. Contracting Party agrees to provide immediate notice to City of
any claim or loss against Contracting Party arising out of the work performed
under this agreement. City assumes no obligation or liability by such notice,
but has the right (but not the duty) to monitor the handling of any such
claim or claims if they are likely to involve City.
Exhibit E
Page 6of6
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 1of3
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 Desian Professionals.
1. Applicability of this Section F.1(d). Notwithstanding
Section F.1(a) hereinabove, the following indemnification provision shall
apply to a Contracting Party who constitutes a "design professional" as the
term is defined in paragraph 3 below.
2. Scope of Indemnification. When the law establishes a
professional standard of care for Contracting Party's Services, to the fullest
extent permitted by law, Contracting Party shall indemnify and hold
harmless City and any and all of its officials, employees, and agents
("Indemnified Parties") from and against any and all losses, liabilities of
every kind, nature, and description, damages, injury (including, without
limitation, injury to or death of an employee of Contracting Party or of any
subcontractor), costs and expenses, including, without limitation, incidental
and consequential damages, court costs, reimbursement of attorneys' fees,
litigation expenses, and fees of expert consultants or expert witnesses
incurred in connection therewith and costs of investigation, to the extent
same are caused by any negligent or wrongful act, error or omission of
Contracting Party, its officers, agents, employees or subcontractors (or any
entity or individual that Contracting Party shall bear the legal liability
thereof) in the performance of professional services under this agreement.
With respect to the design of public improvements, the Contracting Party
shall not be liable for any injuries or property damage resulting from the
reuse of the design at a location other than that specified in Exhibit A
without the written consent of the Contracting Party..
3. Design Professional Defined. As used in this
Section F.1(d), the term "design professional" shall be limited to licensed
architects, registered professional engineers, licensed professional land
surveyors and landscape architects, all as defined under current law, and as
may be amended from time to time by Civil Code § 2782.8.
F.2 Obligation to Secure Indemnification Provisions. Contracting
Party agrees to obtain executed indemnity agreements with provisions
Exhibit F
Page 2 of 3
identical to those set forth herein this Exhibit F, as applicable to the
Contracting Party, from each and every subcontractor or any other person or
entity involved by, for, with or on behalf of Contracting Party in the
performance of this Agreement. In the event Contracting Party fails to
obtain such indemnity obligations from others as required herein,
Contracting Party agrees to be fully responsible according to the terms of
this Exhibit. Failure of City to monitor compliance with these requirements
imposes no additional obligations on City and will in no way act as a waiver
of any rights hereunder. This obligations to indemnify and defend City as
set forth in this Agreement are binding on the successors, assigns or heirs of
Contracting Party and shall survive the termination of this Agreement.
Exhibit F
Page 3 of 3