RFP - Construction Management Services SilverRock Park Venue (Project 2016-08)REQUEST FORPROPOSALS
DEADLINE: SEPTEMBER 9, 2019 BY 5PM
(PST) ATTENTION: BRYAN MCKINNEY
CITY ENGINEER
REQUEST FOR PROPOSALS
CONSTRUCTION MANAGEMENT SERVICES
SILVERROCK PARK VENUE SITE
CITY PROJECT: 2016-08
REQUEST FOR PROPOSALS
CONSTRUCTION MANAGEMENT SERVICES
SILVERROCK PARK VENUE SITE
CITY PROJECT: 2016-08
The City of La Quinta (City) is requesting proposals from qualified construction
management firms to provide construction management services for the
SilverRock Park Venue Site Project, City Project No. 2016-08.
Project Description
In conformance with the Specific Plan for SilverRock Development a
community park for passive use is proposed. The goal is to use the park for
special events such as Art Festivals. The SilverRock Park Venue Project is
located on the southeast corner of SilverRock Way and Avenue 52. The park
site sits on approximately 14 acres with approximately eight (8) acres of
walking paths, turf, and landscaping.
Construction work includes but is not limited to precise grading, landscaping
and irrigation, utility construction including a grinder pump, stream and lake
construction with floating fountain, furnishing and installation of pump for
lake, furnishing and installation of lighting, decomposed granite parking lot
construction, concrete ADA parking space construction, concrete and
decomposed walkways, construction of a stage, construction of outlet
structures, construction of retaining walls, construction of an outdoor theater
with seating area.
Rough Grading has been completed by others and is within 1/10th of a foot
+/- of the subgrade except as follows: the pump area enclosed by the screen
wall is within 1-foot of the final grade; the lake is graded within 1/10th of a
foot +/- of liner level; the stream is graded within 1/10th of a foot +/- of
water surface elevation. The Contractor is required to precise grade the site
per the grades per the plans.
Environmental monitoring is required by this project and the City will contract
with the disciplines separately.
The project plans and specifications, including four (4) addendums, have been
prepared through Hermann Design Group and are available for review using
this link: https://naiconsulting.sharefile.com/d-s2118b12514c4f319.
All utility impacts have been identified and coordinated through each owner
as necessary. The identified impacts include:
•Coachella Valley Water District
Water service is required for this project, an application for a water
meter is currently in with CVWD. Sewer service connection is needed
but the sewer line connection does not need to be inspected by CVWD
since it is a lateral already on site.
•Imperial Irrigation District
A new point of connection and meters are needed through IID and an
application has already been submitted with design almost complete
through IID.
The consultant will be responsible for providing construction management with
input and coordination through the City’s Construction Management Group.
Consultant shall be responsible for developing their own work plan in order to
monitor the construction work in sufficient detail. Construction was awarded
to Urban Habitat in the amount of $4,218,880 with 120 working days and 90-
day maintenance period. The City is anticipating a level of effort for the
construction management on the order of 2% of the total construction cost.
Ideally a Construction Manager and Inspector would be provided by the
Consultant to conduct the work through the acceptance of the project.
The Consultant may use rotating space at the City of La Quinta City Hall to
perform office work if needed.
Scope of Services
Services and products to be rendered in performing all work associated with
this request may include, but may not be limited to:
•Construction Management
o Obtain a field office or use rotating space at La Quinta City Hall
for the duration of construction.
o Perform a “third” party constructability review of the project plans
and specifications prior to the preconstruction conference and
identify potential problems that may need attention before
construction starts.
o Schedule and attend a field walk with inspector(s), design
engineer, and City representatives.
o Schedule and chair a kick off meeting with the City to discuss the
proposed work plan and special concerns to be presented at the
preconstruction meeting and be present at the Pre-Construction
meeting.
o Provide a preconstruction agenda using City format and provide
to the City for concurrence, schedule a preconstruction meeting
and notify attendees. It is envisioned that the preconstruction
meeting will include all interested parties, including utilities, sub-
contractors, etc.
o Coordinate the activities of on-site inspectors and administrators
such that appropriate coverage of all contractor activities is
provided.
o Coordinate with Biologist and have them conduct nesting bird
surveys as required.
o Coordinate with Paleo and Cultural Monitor and have them
conduct monitors as required.
o Prepare reports and documents, as necessary, for City review and
action.
o Maintain on a current basis: a record copy of all contracts,
drawings, specifications, addenda, change orders, and other
modifications, in good order and marked to record all changes
made during construction; shop drawings, product data; samples;
submittal; purchases; materials; equipment; applicable
handbooks; maintenance and operating manuals and instructions;
other related documents and revisions which are relevant to the
contract work.
o Provide weekly status reports to the City as required.
o Prepare and send a Weekly Statement of Working Days, noting
the controlling operations, to the contractor.
o Prepare daily/weekly Resident Engineer reports listing the type of
work done, controlling operation, weather conditions, important
discussions/agreements with the Contractor, and any other
important facts pertaining to the project that are not specifically
covered elsewhere in the contract records.
o Coordinate, monitor, and document utility connections as
necessary.
o Administer the construction contract in conformance with the
requirements set forth in the project plans and specifications
including applicable requirements from Standard Specifications for
Public Works Construction and the City.
o Receive, log, and respond to contractor Request for Information.
o Conduct weekly construction progress meetings with the
Contractor, Sub-contractors, City Staff, Design Engineer, Sub-
consultants, affected outside agencies, etc. to discuss matters
such as procedures, progress, problems, and scheduling. Prepare
and distribute meeting minutes.
o Review and approve Subcontracting Request forms.
o Coordinate and monitor all inspection activities.
o Submit Requests for Information as required on any items that
should be coordinated with the design engineer(s).
o Receive, process, review, and accept all shop drawings, project
data, samples, and other submittals including coordination with
the design engineer for review as needed. Establish and
implement procedures for expediting the processing and approval
of submittal.
o Review and approve laboratory, shop, and mill test reports of
materials and equipment.
o Coordinate with the City Engineer and other City Departments.
o Document all potential claims and maintain for account records.
Provide all necessary documentation and support to the City in
settling claims.
o Verify that the contractor’s dust control, stormwater pollution
prevention plan (SWPPP), and traffic control implementation is
consistent with the approved Plans. Take contractually-stipulated
action in the event of deviations from the approved Plan.
o Coordinate construction surveying.
o Coordinate required materials testing.
o Review and analyze the Contractor’s schedule (weekly), including
activity sequences and duration, schedule of submittal and
schedule of delivery for products with long lead times. Review the
Contractor’s weekly scheduled for compliance with project
specifications. Note any contractual non-compliances and request
remedial action plan from Contractor. Include contractor schedule
as an agenda item at each weekly meeting.
o Recommend necessary or desirable changes in the Construction
Contractor’s scope of work to the City. Review and evaluate the
contractor’s request for changes. Negotiate with the Contractor
and submit recommendations to the City supported by field data
related to any additional work. If change orders are accepted by
the City, prepare change orders for signature and authorization
by the city. Maintain a log of change requests.
o Create and maintain “As-Built” project schedule with Microsoft
Project or equivalent program.
o Review pay requests and provide recommendation for contractor
payments.
o Coordinate any training sessions required for City Staff.
o Construction Closeout
Administer and coordinate final inspections.
Coordinate the correction and the completion of the work.
Assist the City in determining when the project, or a
designated portion thereof, is substantially complete.
Prepare for the City, a summary of the status of the work of
the Contractor, listing changes in the previously issued
certificates of substantial completion of the work, and
recommending the times within which the Contractor shall
complete uncompleted items on the certificate of substantial
completion of the work.
Calculate the amount of final payment due to the prime
Contractor and prepare the proposed final estimate.
Obtain evidence of certification of all lien releases after the
City files their notice of completion.
Secure from the contractor and transmit to the City,
required guarantees.
Coordinate any startup requirements.
Deliver all equipment manuals, special equipment, spare
parts, catalogs, and other materials required by
specifications.
Collect all “As-Built” data from all contractors and
consultants.
Make recommendation for the release of retention.
o Provide construction management documents and records to the
City within 60 days of the filing of the notice of completion.
•Inspection
o Review contract documents, plans, and permits.
o Attend field walks and kick off meetings.
o Attend the pre-construction meeting.
o Monitor and enforce construction noticing requirements, including
but not limited to, PM-10 and SWPPP requirements.
o Maintain field diary (bound workbook) during construction,
including a cumulative record of quantities constructed, daily and
weekly reports, working day reports, change order
documentation, photographs and other documentation. Maintain
a separate field diary for change order work.
o Monitor the Contractor’s fugitive dust control plan and ensure that
the Contractor uses approved haul routes and that they are kept
clean.
o Verify compliance with the construction contract by monitoring,
evaluating, approving or rejecting the Contractor’s work in
accordance with the approved construction contract documents.
o Determine that the Contractor’s work is being performed in
accordance with the requirements of the contract documents.
Endeavor to guard the City against defect and deficiencies in the
work.
o As appropriate, require special inspection or testing, or make
recommendations to the City regarding special inspection or
testing of work not in accordance with the provisions of the
contract documents, whether or not such work is fabricated,
installed, or completed.
o Provide and maintain a digital photographic history of the progress
of the project. Photos will also be taken of the following:
Showing existing conditions prior to construction.
Disputed work items.
Work that has to be duplicated, replaced, or removed.
Completed work.
Extra work.
o Record the progress of the project. Maintain a daily log containing
a record of weather, the Contractor and Sub-contractors’ work on-
site, the Contractor and Sub-contractors’ equipment on site,
number of workers, work accomplished, problems encountered,
and other relevant data. Provide copies of daily logs to the City as
requested. Include information on the Contractor and the entire
project, showing percentages of completion.
o During the course of construction, maintain one set of plans, with
markings and dimensions in red ink, to denote field changes or
other corrections.
o Inspect for ADA compliance.
o Maintain copies of all permits needed to construct the project and
enforce special requirements of each.
Quality Control
The Consultant shall have a Quality Control Plan in effect to assist quality
assurance during the entire time work is in effect.
The Consultant has responsibility for the accuracy and completeness of the
calculations, related documents, and all other work furnished and shall meet
that responsibility through the implementation of a Quality Control Plan. The
Consultant’s Quality Control Plan shall remain in effect throughout the entire
Contract and, at a minimum, shall ensure that all work is completed in
accordance with good engineering practice and that it meets the standards
set forth herein. Specifically:
•The Quality Control Plan shall establish a process whereby all work is
independently checked, corrected and back-checked, in accordance with
accepted practice, by a person qualified and appropriately registered in
the State of California. All original drawings and calculations shall be
maintained for the duration of the Contract.
•Coordination and checks shall be performed to ensure that conflicts and
misalignment do not occur between different design documents (i.e.
plans coordinated with specifications).
Evidence the Quality Control Plan is functioning may be periodically confirmed
by the City.
Proposal Format
Proposals (work proposal and cost proposal) are to be submitted in separate
envelopes clearly marked with the consultant’s name, address and phone
number. Only one proposal per consultant will be considered.
Due Date and Time:
Proposals submitted after the due date and time, may, at the sole discretion
of the City, be rejected as non-responsive and returned without review. For a
proposal to be considered on time, it must be date stamped by City staff upon
receipt. At the discretion of the City, a “late” proposal may be considered only
if a selection cannot be determined from among proposals received on time.
The City shall not be responsible for, nor accept any as a valid excuse, any
delay in mail service, or any other method of delivery used by the proposer.
All proposals shall be enclosed in a sealed envelope with the words clearly
written on the front, “SEALED BID FOR THE SILVERROCK PARK VENUE
PROJECT CONSTRUCTION MANAGEMENT SERVICES - DO NOT OPEN
WITH REGULAR MAIL.”
The One-Step Request For Proposal (RFP) method is being used for consultant
selection.
All proposals shall be firm offers subject to acceptance by the City and may
not be withdrawn for a period of 180 calendar days following the last day to
accept proposals. Proposals may not be amended after the due date except
by consent of the City. All proposals must clearly address all of the
requirements outlined in this RFP.
Proposal packages are to be submitted to the City on/or before September
9, 2019 at/or before 5:00 p.m. Proposals received after the stated deadline
shall not be accepted. Proposal packages are to be delivered to:
Bryan McKinney, P.E., City Engineer
City of La Quinta
Design and Development
78-495 Calle Tampico
La Quinta, CA 92253
All questions must be submitted in writing to the City via email at
bmckinney@laquintaca.gov on/or before August 29, 2019 at/or before 5:00
p.m. You are requested to include “SilverRock Park Venue CM Services” in the
subject line.
All prime consultants that intend to submit a proposal shall notify Julie
Mignogna, at jmignogna@laquintaca.gov, by August 29, 2019, at/or
before 5:00 p.m., of the intent to submit a proposal. The subject line for
the email shall read “SilverRock Park Venue CM Services: Intent to Submit
Proposal.” The email shall include the consultant’s name and email address
that should be used for any RFP addenda.
Consultants are encouraged to keep their proposals brief and relevant to the
specific work required. Each proposal shall be limited to sixteen (16) pages
with a minimum 10pt font and must include a minimum of three (3)
references, which include the address, telephone number, and email address
of each reference. The page limit shall be limited to sixteen (16) single-sided
or eight (8) double-sided sheets of paper. Resumes and brochures may be
added to the proposal, provided they are in the appendix at the back of the
proposal. Should the proposer have concerns about meeting any noted
requirements, the proposer shall include a clearly labeled subsection in the
appendices with individual statements specifically identifying the concerns and
exceptions.
The following are NOT included in the 16-page count:
(1) Transmittal letter
(2) Table of contents
(3) Appendices
(4) Signed Non-Collusion Affidavit Form
(5) Insurance Acknowledgement
Proposals shall include the following items:
1. Work Proposal (envelope 1) - submit 4 bound copies and 1
electronic PDF via USB drive
A. Cover Letter
(1) The name, address and phone number of the consultant’s
contact person for the remainder of the selection process.
(2) Any qualifying statements or comments regarding the
consultant’s proposal, the information provided in the RFP
or the proposed Agreement for Contract Services.
(3) Identification of sub-consultants and their responsibilities.
B. Statement of Qualifications
(1) A listing of proposed project personnel, including personal
experiences and individual resumes for prime and sub-
consultants.
(2)Consultant’s and sub-consultant experience with similar
work, including names and current phone numbers of
reference for listed projects.
C.Project Understanding and Approach - A description of your project
understanding and how you will approach the project.
D.Scope of Work Program - A description of the tasks, sub-tasks, and
deliverables that will be provided. The Scope of Work Program should
be presented in a logical format that can be easily attached to the
Agreement for Contract Services.
F.Appendices
(1)Signed Non-Collusion Affidavit Form (Attachment 2)
(2)Insurance Acknowledgement - signed acknowledgement(s)
through which each insurance carrier that will issue any
policy required in the Insurance Provisions, shall
acknowledge, warrant and represent that it possesses the
ability to and shall furnish all the insurance endorsements
prescribed in the Insurance Provisions.
(3)Staff resumes or supporting documentation
2.Cost Proposal (envelope 2) – Submit two (2) copies
Task Based Detailed Cost Estimate
The method of payment will be Actual Cost-Plus-Fixed Fee with a not to
exceed value. The consultant is to submit a detailed cost proposal for all
services and materials anticipated in completing the project. Person-
hours and extended billing rates per classification of personnel will be
indicated for each task and/or sub-task defined.
Rate Based Detailed Cost Estimate
In support of the Task Based Detailed Cost Estimate, the consultant shall
include a detailed breakdown of the direct labor costs including
personnel, classification/title, hours, and actual hourly rates. For public
works prevailing wage contracts, all workers must be paid the prevailing
wage rate determined by the Director of the Department of Industrial
Relations according to the type of work and location. This should include
anticipated salary increases. In addition, the cost proposal shall include
the consultant’s indirect cost rates including fringe benefits, overhead,
general and administrative rates. A sample Cost Proposal (LAPM Form
10H1 and 10H4) is included as Attachment 3. Please note that this
project does NOT have federal or state funding.
Selection Process
Work Proposals will be reviewed by the City’s Consultant Selection Committee.
Consultants will be selected for possible contract negotiations based upon the
materials submitted within the Work Proposal. A copy of the Proposal
Evaluation Form is provided in Attachment 4.
The City will open contract negotiations with the top ranked firm. The
successful consultant will be expected to enter into an Agreement for Contract
Services with the City (Attachment 5).
Should negotiation with the top-ranked firm dissolve, the City will open the
Cost Proposal and begin contract negotiations with the second ranked firm,
and so forth until an agreement is reached. The successful consultant will be
expected to enter into the attached Agreement for Contract Services
(Attachment 5).
Anticipated consultant selection schedule shall be as follows:
•September 9, 2019:Proposal Review/Evaluation
•September 12-13, 2019: Cost Negotiation
•October 1, 2019: Contract Award
City Rights and Options
This solicitation does not commit the City to award a contract, to pay any cost
incurred with the preparation of a qualifications statement, or to procure or
contract for services or supplies. The City reserves the right to accept or reject
any or all submittals received in response to this request, to negotiate with
any qualified source, or cancel in whole or part this process if it is in the best
interest of the City to do so. Subsequent to negotiations, prospective
consultants may be required to submit revisions to their qualification
statements. All proposers should note that any contract pursuant to this
solicitation is dependent upon the recommendation of the City staff and the
approval of the City Council.
The City reserves the right to postpone selection for its own convenience, to
withdraw this RFP at any time, and to reject any and all submittals without
indicating any reason for such rejection. As a function of the RFP process, the
City reserves the right to remedy technical errors in response to the RFP and
to modify the published scope of services. The City will reserve the right to
request that specific personnel with specific expertise be added to the team,
if the City determines that specific expertise is lacking in the project team.
Statements and other materials submitted will not be returned.
The City reserves the right to abandon this RFP process and/or change its
procurement process for the contract at any time if it is determined that
abandonment and/or change would be in the City’s best interest. In the event
of an abandonment or change, the City will not be liable to any contractor for
any costs or damages arising out of its response to the RFP.
Conflict of Interest Requirements
Throughout the term of the awarded contract, any person, firm or subsidiary
thereof who may provide, has provided or is currently providing Design
Engineering Services and/or Construction Engineering Services under a
contractual relationship with a construction contractor(s) on any local project
listed in this Scope of Work must disclose the contractual relationship, the
dates and the nature of the services.
The prime consultant and its subconsultants shall also disclose any financial
or business relationship with the construction contractor(s) who are working
on the projects that are assigned for material Quality Assurance services
through task orders on the contract.
Similar to the disclosures regarding contractors, all firms are also required to
disclose throughout the term of the awarded contract, any Design Engineering
services including claim services, Lead Project Management services and
Construction Engineering Services provided to all other clients on any local
project listed in this Scope of Work.
In addition to the disclosures, the Consultant shall also provide possible
mitigation efforts, if any, to eliminate or avoid any actual or perceived conflicts
of interest.
The Consultant shall ensure there is no conflict before providing services to
any construction contractor on any of the agency’s projects listed in this Scope
of Work. The submitted documentation will be used for determining potential
conflicts of interest.
If a Consultant discovers a conflict during the execution of an assigned task
order, the Consultant must immediately notify the Contract Manager
regarding the conflicts of interest. The Contract Manager may terminate the
Task Order involving the conflict of interest and may obtain the conflicted
services in any way allowed by law. Failure by the Consultant to notify the
Contract Manager may be grounds for termination of the contract.
Some examples of conflict of interest are the following:
• Providing services to construction contractor’s subcontractors,
fabricators, equipment installer, material suppliers and other firms
associated with the projects listed in the Contract can be a potential
conflict of interest when such contractor teams are identified.
Insurance
The successful consultant will be required to comply with the following
Contract Insurance requirements:
• Commercial General Liability (at least as broad as ISO CG 0001)
o $2,000,000 (per occurrence)
o $4,000,000 (general aggregate)
o 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)
o $1,000,000 (per accident)
o Personal Auto Declaration Page if applicable
• Errors and Omissions Liability
o $1,000,000 (per claim and aggregate)
• Workers’ Compensation (per statutory requirements)
o Must include the following endorsements:
Workers Compensation with Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if
applicable
Attachments:
Attachment 1: Overall Project Exhibit
Attachment 2: Non-Collusion Affidavit Form
Attachment 3: LAPM Forms 10H1 and 10H4 – Sample Cost Proposal
Attachment 4: Proposal Evaluation Form
Attachment 5: City of La Quinta Agreement for Contract Services
ATTACHMENT 1
OVERALL PROJECT EXHIBIT
ATTACHMENT 2
NON-COLLUSION AFFIDAVIT FORM
NON-COLLUSION AFFIDAVIT FORM
Must be executed by proposer and submitted with the proposal
I, __________________________________ (name) hereby declare as follows:
I am ______________________________ of _________________________,
(Title) (Company)
the party making the foregoing proposal, that the proposal is not made in the interest of, or on behalf
of, any undisclosed person, partnership, company, association, organization, or corporation; that the
proposal is genuine and not collusive or sham; that the proposer has not directly or indirectly induced
or solicited any other proposer to put in a false or sham proposal, and has not directly or indirectly
colluded, conspired, connived, or agreed with any proposer or anyone else to put in a sham proposal,
or that anyone shall refrain from proposing; that the proposer has not in any manner, directly or
indirectly, sought by agreement, communication, or conference with anyone to fix the proposal price
of the proposer or any other proposer, or to fix any overhead, profit, or cost element of the proposal
price, or of that of any other proposer, or to secure any advantage against the public body awarding
the agreement of anyone interested in the proposed agreement; that tall statements contained in
the proposal are true; and, further, that the proposer has not, directly or indirectly, submitted his or
her proposal price or any breakdown thereof, or the contents thereof, or divulged information or data
relative hereto, or paid, and will not pay, any fee to any corporation, partnership, company,
association, organization, proposal depository, or to any member or agent thereof to effectuate a
collusive or sham proposal.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
Proposer Signature: _______________________________________
_______________________________________
______________________________________
_______________________________________
Proposer Name:
Proposer Title:
Company Name:
Address: _______________________________________
_____________________________________
_______________________________________
_______________________________________
_______________________________________
_______________________________________
ATTACHMENT 3
LAPM FORMS 10H1 AND 10H4 – SAMPLE COST PROPOSAL
Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal
Page 1 of 9
January 2018
EXHIBIT 10-H1 COST PROPOSAL Page 1 of 3
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS
(DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
Note: Mark-ups are Not Allowed ☐ Prime Consultant ☐ Subconsultant ☐ 2nd Tier Subconsultant
Consultant __________________________________________________________
Project No. _______________________ Contract No. ____________________ Date ____________________
DIRECT LABOR
Classification/Title Name Hours Actual Hourly Rate Total
(Project Manager)* ____________________________ ________ $ _____________ $ _____________
(Sr. Civil Engineer) ____________________________ ________ $ _____________ $ _____________
(Envir. Scientist) ____________________________ ________ $ _____________ $ _____________
(Inspector)** ____________________________ ________ $ _____________ $ _____________
LABOR COSTS
a)Subtotal Direct Labor Costs $ _______________
b)Anticipated Salary Increases (see page 2 for calculation)$ _______________
c)TOTAL DIRECT LABOR COSTS [(a) + (b)] $ _______________
INDIRECT COSTS
d)Fringe Benefits (Rate: _____%)e) Total Fringe Benefits [(c) x (d)] $ _______________
Overhead (Rate: _____%) g)Overhead [(c) x (f)] $ _______________
h)General and Administrative (Rate: _____%) i) Gen & Admin [(c) x (h)] $ _______________
j)TOTAL INDIRECT COSTS [(e) + (g) + (i)] $ _______________
FIXED FEE k)TOTAL FIXED FEE [(c) + (j)] x fixed fee ______%] $ ______________
l)CONSULTANT’S OTHER DIRECT COSTS (ODC) – ITEMIZE (Add additional pages if necessary)
Description of Item Quantity Unit Unit Cost Total
Mileage Costs $ $
Equipment Rental and Supplies $ $
Permit Fees $ $
Plan Sheets $ $
Test $ $
l)TOTAL OTHER DIRECT COSTS $
m)SUBCONSULTANTS’ COSTS (Add additional pages if necessary)
Subconsultant 1: $
Subconsultant 2: $
Subconsultant 3: $
Subconsultant 4: $
m)TOTAL SUBCONSULTANTS’ COSTS $
n)TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS [(l)+(m)] $ ___________________
TOTAL COST [(c) + (j) + (k) + (n)] $ _____________________
NOTES:
1.Key personnel must be marked with an asterisk (*) and employees that are subject to prevailing wage requirements must be marked
with two asterisks (**). All costs must comply with the Federal cost principles. Subconsultants will provide their own cost proposals.
2.The cost proposal format shall not be amended. Indirect cost rates shall be updated on an annual basis in accordance with the
consultant’s annual accounting period and established by a cognizant agency or accepted by Caltrans.
3.Anticipated salary increases calculation (page 2) must accompany.
Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal
Page 2 of 9
January 2018
EXHIBIT 10-H1 COST PROPOSAL Page 2 of 3
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS
(CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
1.Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours)
Direct Labor
Subtotal per Cost
Proposal
Total Hours per
Cost Proposal
Avg
Hourly
Rate
5 Year
Contract
Duration
$250,000.00 5000 = $50.00 Year 1 Avg
Hourly Rate
2.Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %)
Avg Hourly Rate Proposed Escalation
Year 1 $50.00 + 2% = $51.00 Year 2 Avg Hourly Rate
Year 2 $51.00 + 2% = $52.02 Year 3 Avg Hourly Rate
Year 3 $52.02 + 2% = $53.06 Year 4 Avg Hourly Rate
Year 4 $53.06 + 2% = $54.12 Year 5 Avg Hourly Rate
3.Calculate estimated hours per year (Multiply estimate % each year by total hours)
Estimated % Completed
Each Year
Total Hours per Cost
Proposal
Total Hours per
Year
Year 1 20.0% * 5000 = 1000 Estimated Hours Year 1
Year 2 40.0% * 5000 = 2000 Estimated Hours Year 2
Year 3 15.0% * 5000 = 750 Estimated Hours Year 3
Year 4 15.0% * 5000 = 750 Estimated Hours Year 4
Year 5 10.0% * 5000 = 500 Estimated Hours Year 5
Total 100% Total = 5000
4.Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours)
Avg Hourly Rate
(calculated above)
Estimated hours
(calculated above)
Cost per
Year
Year 1 $50.00 * 1000 = $50,000.00 Estimated Hours Year 1
Year 2 $51.00 * 2000 = $102,000.00 Estimated Hours Year 2
Year 3 $52.02 * 750 = $39,015.00 Estimated Hours Year 3
Year 4 $53.06 * 750 = $39,795.30 Estimated Hours Year 4
Year 5 $54.12 * 500 = $27,060.80 Estimated Hours Year 5
Total Direct Labor Cost with Escalation = $257,871.10
Direct Labor Subtotal before Escalation = $250,000.00
Estimated total of Direct Labor Salary
Increase
=
$7,871.10
Transfer to Page 1
NOTES:
1.This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the #
of years of the contract, and a breakdown of the labor to be performed each year.
2.An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable.
(i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology)
3.This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
4.Calculations for anticipated salary escalation must be provided.
Local Assistance Procedures Manual EXHIBIT 10-H1
Cost Proposal
Page 3 of 9
January 2018
EXHIBIT 10-H1 COST PROPOSAL Page 3 of 3
Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost
proposal(s) in this contract are actual, reasonable, allowable, and allocable to the contract in accordance with the
contract terms and the following requirements:
1.Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3.Title 23 United States Code Section 112 - Letting of Contracts
4.48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5.23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of
Engineering and Design Related Service
6.48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable)
All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be
retained in the project files and be in compliance with applicable federal and state requirements. Costs that are
noncompliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognizant agency approved or Caltrans accepted Indirect
Cost Rate(s).
Prime Consultant or Subconsultant Certifying:
Name: Title *:
Signature : Date of Certification (mm/dd/yyyy):
Email: Phone Number:
Address:
*An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level
no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent
the financial information utilized to establish the cost proposal for the contract.
List services the consultant is providing under the proposed contract:
Local Assistance Procedures Manual Exhibit 10-H4 EXHIBIT 10-H4 COST PROPOSAL FOR CONTRACTS WITH PREVAILING WAGES Please Note: Consultant completes all items in yellow highlight CONSULTANT_______________________________________________ PRIME ______ SUB ______CONTRACT TYPE___________________________________________________(LIST ONE OF THE ABOVE LISTED CONTRACT TYPES)PROJECT NO.___________________________CONTRACT NO.___________________________________DATE________________________________Prime Consultant's Participation Amount $_______________________Fringe Benefit % Overhead % General Administration % Combined %60.00% + 60.00% + 60.00% =180.00%60.00% + 60.00% + 60.00% =180.00%Fringe Benefit % Overhead % General Administration % Combined %50.00% + 50.00% + 50.00% =150.00%50.00% + 50.00% + 50.00% =150.00%= 6.00%1.000.00From ToStraight 1.5 OT 2.0 OT Straight 1.5 OT 2.0 OT Straight 1.5 OT 2.0 OT Straight 1.5 OT 2.0 OT Straight 1.5 OT 2.0 OT Straight 1.5 OT 2.0 OT Straight 1.5 OT 2.0 OT Straight 1.5 OT 2.0 OT StraightOT (1.5x) OT (2x)John Doe BSCE, Construction InspectorFIELD1/1/2007 12/31/2007 $34.21 $51.32 $68.42 $15.41 $49.62 $66.73 $83.83$42.17$63.26 $84.34 $11.49 $53.66 $74.75 $95.83 $4.04 $8.02 $12.00 $0.00 $11.94$15.92 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $111.75 $132.84 $153.9242.17$ 1/1/2008 12/31/2008 $34.21 $51.32 $68.42 $15.41 $49.62 $66.73 $83.83$43.44$65.16 $86.88 $11.49 $54.93 $76.65 $98.37 $5.31 $9.93 $14.54 $0.00 $13.85$18.46 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $115.12 $136.84 $158.563.00%43.44$ 1/1/2009 12/31/2009 $34.21 $51.32 $68.42 $15.41 $49.62 $66.73 $83.83$44.74$67.11 $89.48 $11.49 $56.23 $78.60 $100.97 $6.61 $11.88 $17.14 $0.00 $15.80 $21.06 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $118.56 $140.93 $163.303.00%44.74$ Prevailing Wage Work 1/1/2010 12/31/2010 $34.21 $51.32 $68.42 $15.41 $49.62 $66.73 $83.83$46.08$69.12 $92.16 $11.49 $57.57 $80.61 $103.65 $7.95 $13.89 $19.82 $0.00 $17.81 $23.74 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $122.11 $145.15 $168.193.00%46.08$ (non-Exempt)John Doe BSCE, Construction InspectorFIELD1/1/2007 12/31/2007$0.00 $0.00 $0.00 $111.75 $132.84 $153.9242.17$ 1/1/2008 12/31/2008$0.00 $0.00 $0.00N/A N/A N/A N/A N/A N/A N/A N/A N/A$115.12 $136.84 $158.563.00%43.44$ 1/1/2009 12/31/2009$0.00 $0.00 $0.00$118.56 $140.93 $163.303.00%44.74$ Non-Prevailing Wage Work 1/1/2010 12/31/2010$0.00 $0.00 $0.00$122.11 $145.15 $168.193.00%46.08$ (non-Exempt)$0.00 $0.00 $0.00Jane Smith BSCE, PE Asst RE/InspectorFIELD1/1/2007 12/31/2007 $34.21 $51.32 $68.42 $15.41 $49.62 $66.73 $83.83$45.00$45.00 $45.00 $11.49 $56.49 $56.49 $56.49 $6.87($10.24) ($27.34)$0.00($6.32) ($23.42)$0.00($6.32) ($23.42)$0.00($3.92) ($3.92)$119.25 $125.57 $142.6745.00$ 1/1/2008 12/31/2008 $34.21 $51.32 $68.42 $15.41 $49.62 $66.73 $83.83$46.35$46.35 $46.35 $11.49 $57.84 $57.84 $57.84 $8.22($8.88) ($25.99)$0.00($4.97) ($22.07)$0.00($4.97) ($22.07)$0.00($3.92) ($3.92)$122.83 $127.79 $144.903.00%46.35$ 1/1/2009 12/31/2009 $34.21 $51.32 $68.42 $15.41 $49.62 $66.73 $83.83$47.74$47.74 $47.74 $11.49 $59.23 $59.23 $59.23 $9.61($7.49) ($24.60)$0.00($3.58) ($20.68)$0.00($3.58) ($20.68)$0.00($3.92) ($3.92)$126.51 $130.09 $147.193.00%47.74$ Prevailing Wage Work 1/1/2010 12/31/2010 $34.21 $51.32 $68.42 $15.41 $49.62 $66.73 $83.83$49.17$49.17 $49.17 $11.49 $60.66 $60.66 $60.66 $11.04($6.06) ($23.17)$0.00($2.15) ($19.25)$0.00($2.15) ($19.25)$0.00($3.92) ($3.92)$130.30 $132.45 $149.553.00%49.17$ (Exempt)1. Prevailing Wages specified are based on current DIR determination. Any future DIR escalation of prevailing wage rates will be reflected in the loaded rates2. "NC" denotes No Charge for work more than 8 hours per day and for weekends and holidays for this contract only. C) Straight Time or 1.5X or 2.0X Overtime = Actual Hourly Rate * (1 + Field O.H.) * (1 + Fee) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe)Field Office Personnel:B) 1.5X or 2.0X Overtime = (Actual Hourly Rate) * (1 + Field O.H.) * (1 + Fee) +.5X or 1.0X (Actual Hourly Rate) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe)NORMALExempt Employee Loaded Billing RatesOVERTIME Applicable Multiplier Fringe (Field) = Name/ClassificationHome Office Personnel Field Office PersonnelPrevailing Wage Rate established by State DIR(only applicable for prevailing wage work)Employee Actual Rate(fringe benefits vary year over year)DELTA (TOTAL) = Employee Total Rate - DIR RateApplicableDELTA (TOTAL)DELTA (BASE) =Employee Base - DIR BaseBase Salary FringeBenefitsTotal Base Salary + Fringe BenefitsEffective Date of Hourly Rate Cost Proposal for Contracts with Previaling Wages ACTUAL COST PLUS FIXED FEE; SPECIFIC RATES OF COMPENSATION AND COST PER UNIT OF WORK CONTRACTSBase Salary EstimateFringeTotal = Base + FringeApplicableDELTA Base =DIR Rate - Employee Base RateApplicable DELTA FRINGE = DELTA TOTAL - DELTA BASE(Employee-DIR)Fee Loaded Rate CalculationHome Office Personnel:NORMALNon Exempt Employee Loaded Billing RatesOVERTIMEA) Straight Time = Actual Hourly Rate * (1 + Field O.H.) * (1 + Fee) + Delta Base * (Applicable Multiplier Delta Base) + Delta Fringe * (Applicable Multiplier Delta Fringe)The PW differentials Delta Base and Delta Fringe shown in the formulas above for Loaded Billing Rates are applicable only when performing services covered under DIR determinations. Applicable Multiplier Delta Base (Field) = 3. The billing rates shown in this cost proposal for field staff entitled for PW rates are calculated with estimated fringe benefits of the staff. The actual billing rates to be used in the invoices will be calculated by using the actual PW fringe benefits of the individual staff in accordance with the certified benefits statement submitted with each invoice.4. The employees' actual hourly rates shown in this cost proposal are the rates that were effective on xx/xx/xx. Caltrans Contract Manager's pre-approval is required for addition of staff not previously listed on the cost proposal. The billing rates for these employees, including those that fall under general classifications, will be calculated and reimbursed based on their actual hourly rates on xx/xx/xx. Hourly rates for new employees hired after the date of this cost proposal will not exceed (or shall be in line with) the rates of similar personnel listed on this cost proposal having similar experience.5. Travel Time Charges: For Managers: On weekdays up to a maximum of 8 hours will be charged for work time, travel time or any combination of travel and work time. Billing Rate = Loaded Rate Formula "C" above.N/A For Exempt staff: During regular work day, actual travel time not to exceed 8 hours in any one day or one way travel will be billed as follow: Billing rate for travel time = Loaded Rate Formula "C" above. All travel time, outside of the regular work day, will be billed without the application of overhead rate as follow: Billing Rate = (Actual Hourly Rate) (1+ Fee) + (Delta Base + Delta Fringe) For Non-Exempt Employees: During regular work day, actual travel time not to exceed 8 hours in any one day or one way travel will be billed at full normal overhead rate (i.e. without the application of the 1.5X or 2.0X multiplier for overtime as follow:Loaded Hourly Billing Rates % Escalation IncreaseActual Hourly Rate and/or Average Hourly RateN/AN/AHourly Range for Class Page 1 of 1January 2018
ATTACHMENT 4
PROPOSAL EVALUATION FORM
REQUEST FOR QUALIFICATIONS EVALUATION
Project Name:
Consultant:___________________________________________________________
Reviewer: Date:_______________
Refer to Scoring Breakdown on next sheet.
Understanding of work to be done 30
Experience with similar kinds of work 25
Quality of staff for work to be done 20
Familiarity with State and Federal procedures 15
Format/Organization 10
Total 100
Unique Qualities (Intangibles):
(Explanation)___________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Comments:____________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
TOTAL ______
Reviewer’s Signature _______________________________________________
Contract Administrator's Initials ____________ Date ________________
Scoring Breakdown:
Understanding of work to be done - 30 points maximum
0-15: Scope of work is off topic or is missing more than 5 key elements.
16-25: Scope of work is understandable but missing a few key elements.
26-30: Scope of work well justified and most or all key elements are included.
Experience with similar kinds of work - 25 points maximum
0-10 points: Consultant does not include previous experience or has very minimal experience.
16-20 points: Consultant lists previous experience, but experience is not relevant or similar.
21-25 points: Consultant lists relevant previous experience with similar work.
Quality of staff for work to be done - 20 points maximum
0-8 points: Resumes not included or staff has little to no experience with similar project.
9-15 points: Staff list includes resumes but experience is not relevant or similar.
16-20 points: Staff has relevant experience and is competent to perform scope requested.
Familiarity with State and Federal Procedures - 15 Points Maximum
0-4 points: Zero to little previous Federal and State project experience
5-10 points: Federal and State experience but not on similar work.
11-15 points: Relevant Federal and State Experience.
Format/Organization - 10 points maximum
0-4: Scope of work is not or barely organized into tasks and subtasks, does not flow clearly.
5-7: Scope of work is organized into tasks and subtasks, but not in a clear logical order.
8-10: Scope of work is well organized into logical tasks and subtasks to complete a project.
ATTACHMENT 5
CITY OF LA QUINTA DRAFT AGREEMENT FOR CONTRACT SERVICES
AGREEMENT FOR CONTRACT SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (the “Agreement”) is made
and entered into by and between the CITY OF LA QUINTA, (“City”), a California
municipal corporation, and Name [insert the type of business entity, e.g. sole
proprietorship, CA Limited Liability Corp, an S Corp.] (“Contracting Party”).
The parties hereto agree as follows:
1. SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions of
this Agreement, Contracting Party shall provide those services related to
construction management services for the SilverRock Park Venue Site Project,
City Project No. 2016-08, 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 DRAFT
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counsel selected by City), and hold City, its elected officials, officers,
employees, and agents, free and harmless against any such fees,
assessments, taxes, penalties, or interest levied, assessed, or imposed
against City hereunder. Contracting Party shall be responsible for all
subcontractors’ compliance with this Section.
1.5 Familiarity with Work. By executing this Agreement, Contracting
Party warrants that (a) it has thoroughly investigated and considered the
Services to be performed, (b) it has investigated the site where the Services
are to be performed, if any, and fully acquainted itself with the conditions
there existing, (c) it has carefully considered how the Services should be
performed, and (d) it fully understands the facilities, difficulties, and
restrictions attending performance of the Services under this Agreement.
Should Contracting Party discover any latent or unknown conditions materially
differing from those inherent in the Services or as represented by City,
Contracting Party shall immediately inform City of such fact and shall not
proceed except at Contracting Party’s risk until written instructions are
received from the Contract Officer, or assigned designee (as defined in
Section 4.2 hereof).
1.6 Standard of Care. Contracting Party acknowledges and
understands that the Services contracted for under this Agreement require
specialized skills and abilities and that, consistent with this understanding,
Contracting Party’s work will be held to an industry standard of quality and
workmanship. Consistent with Section 1.5 hereinabove, Contracting Party
represents to City that it holds the necessary skills and abilities to satisfy the
industry standard of quality as set forth in this Agreement. Contracting Party
shall adopt reasonable methods during the life of this Agreement to furnish
continuous protection to the Services performed by Contracting Party, and the
equipment, materials, papers, and other components thereof to prevent losses
or damages, and shall be responsible for all such damages, to persons or
property, until acceptance of the Services by City, except such losses or
damages as may be caused by City’s own negligence. The performance of
Services by Contracting Party shall not relieve Contracting Party from any
obligation to correct any incomplete, inaccurate, or defective work at no
further cost to City, when such inaccuracies are due to the negligence of
Contracting Party.
1.7 Additional Services. In accordance with the terms and conditions
of this Agreement, Contracting Party shall perform services in addition to
those specified in the Scope of Services (“Additional Services”) only when
directed to do so by the Contract Officer, or assigned designee, provided
that Contracting Party shall not be required to perform any Additional Services
without compensation. Contracting Party shall not perform any Additional DRAFT
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Services until receiving prior written authorization (in the form of a written
change order if Contracting Party is a contractor performing the Services) from
the Contract Officer, or assigned designee, incorporating therein any
adjustment in (i) the Contract Sum, and/or (ii) the time to perform this
Agreement, which said adjustments are subject to the written approval of
Contracting Party. It is expressly understood by Contracting Party that the
provisions of this Section shall not apply to the Services specifically set forth
in the Scope of Services or reasonably contemplated therein. It is specifically
understood and agreed that oral requests and/or approvals of Additional
Services shall be barred and are unenforceable. Failure of Contracting Party
to secure the Contract Officer’s, or assigned designee’s written authorization
for Additional Services shall constitute a waiver of any and all right to
adjustment of the Contract Sum or time to perform this Agreement, whether
by way of compensation, restitution, quantum meruit, or the like, for
Additional Services provided without the appropriate authorization from the
Contract Officer, or assigned designee. Compensation for properly
authorized Additional Services shall be made in accordance with Section 2.3
of this Agreement.
1.8 Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof are set forth in “Exhibit D”
(the “Special Requirements”), which is incorporated herein by this reference
and expressly made a part hereof. In the event of a conflict between the
provisions of the Special Requirements and any other provisions of this
Agreement, the provisions of the Special Requirements shall govern.
2.COMPENSATION.
2.1 Contract Sum. For the Services rendered pursuant to this
Agreement, Contracting Party shall be compensated in accordance with
“Exhibit B” (the “Schedule of Compensation”). The total amount payable by
City including the Fixed Fee, as provided in Article 2.2, shall not exceed
_________ Dollars ($_____.00) (the “Contract Sum”), except as provided in
Section 1.7. The method of compensation set forth in the Schedule of
Compensation may include a lump sum payment upon completion, payment
in accordance with the percentage of completion of the Services, payment for
time and materials based upon Contracting Party’s rate schedule, but not
exceeding the Contract Sum, or such other reasonable methods as may be
specified in the Schedule of Compensation. The Contract Sum shall
include the attendance of Contracting Party at all project meetings
reasonably deemed necessary by City; Contracting Party shall not be
entitled to any additional compensation for attending said meetings.
Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone
expense, and similar costs and expenses when and if DRAFT
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specified in the Schedule of Compensation. Regardless of the method of
compensation set forth in the Schedule of Compensation, Contracting Party’s
overall compensation shall not exceed the Contract Sum, except as provided
in Section 1.7 of this Agreement. In addition to the allowable incurred costs,
City will pay Contracting Party a fixed fee of _______ Dollars ($_______.00)
(the “Fixed Fee”). The Fixed Fee is nonadjustable for the term of the
Agreement, except as provided for in Section 1.7.
2.2 Method of Billing & Payment. Any month in which Contracting
Party wishes to receive payment, Contracting Party shall submit to City no
later than the tenth (10th) working day of such month, in the form approved
by City’s Finance Director, an invoice for Services rendered prior to the date
of the invoice. Such invoice shall (1) describe in detail the Services provided,
including time and materials, and (2) specify each staff member who has
provided Services and the number of hours assigned to each such staff
member. Such invoice shall contain a certification by a principal member of
Contracting Party specifying that the payment requested is for Services
performed in accordance with the terms of this Agreement. Upon approval in
writing by the Contract Officer, or assigned designee, and subject to
retention pursuant to Section 8.3, City will pay Contracting Party for all items
stated thereon which are approved by City pursuant to this Agreement no
later than thirty (30) days after invoices are received by the City’s Finance
Department.
2.3 Compensation for Additional Services. Additional Services
approved in advance by the Contract Officer, or assigned designee, pursuant
to Section 1.7 of this Agreement shall be paid for in an amount agreed to in
writing by both City and Contracting Party in advance of the Additional
Services being rendered by Contracting Party. Any compensation for
Additional Services amounting to five percent (5%) or less of the Contract
Sum may be approved by the Contract Officer, or assigned designee. Any
greater amount of compensation for Additional Services must be approved by
the La Quinta City Council, the City Manager, or Department Director,
depending upon City laws, regulations, rules and procedures concerning public
contracting. Under no circumstances shall Contracting Party receive
compensation for any Additional Services unless prior written approval for the
Additional Services is obtained from the Contract Officer, or assigned
designee, pursuant to Section 1.7 of this Agreement.
3.PERFORMANCE SCHEDULE.
3.1 Time of Essence. Time is of the essence in the performance of
this Agreement. If the Services not completed in accordance with the
Schedule of Performance, as set forth in Section 3.2 and “Exhibit C”, it is
understood that the City will suffer damage.
3.2 Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period DRAFT
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established in “Exhibit C” (the “Schedule of Performance”). Extensions to the
time period specified in the Schedule of Performance may be approved in
writing by the Contract Officer, or assigned designee.
3.3 Force Majeure. The time period specified in the Schedule of
Performance for performance of the Services rendered pursuant to this
Agreement shall be extended because of any delays due to unforeseeable
causes beyond the control and without the fault or negligence of Contracting
Party, including, but not restricted to, acts of God or of the public enemy,
fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes,
freight embargoes, acts of any governmental agency other than City, and
unusually severe weather, if Contracting Party shall within ten (10) days of
the commencement of such delay notify the Contract Officer, or assigned
designee, in writing of the causes of the delay. The Contract Officer, or
assigned designee, shall ascertain the facts and the extent of delay, and
extend the time for performing the Services for the period of the forced delay
when and if in the Contract Officer’s judgment such delay is justified, and the
Contract Officer’s determination, or assigned designee, shall be final and
conclusive upon the parties to this Agreement. Extensions to time period in
the Schedule of Performance which are determined by the Contract Officer, or
assigned designee, to be justified pursuant to this Section shall not entitle
the Contracting Party to additional compensation in excess of the Contract
Sum.
3.4 Term. Unless earlier terminated in accordance with the provisions
in Article 8.0 of this Agreement, the term of this agreement shall commence
on XXX, and terminate on June 30, 2020 (“Initial Term”). This Agreement
may be extended for two (2) additional year(s) upon mutual agreement by
both parties (“Extended Term”).
4.COORDINATION OF WORK.
4.1 Representative of Contracting Party. The following principals of
Contracting Party (“Principals”) are hereby designated as being the principals
and representatives of Contracting Party authorized to act in its behalf with
respect to the Services specified herein and make all decisions in connection
therewith:
(a)Name:
Tel No.
E-mail:
(b)Name
Tel No.
Email:DRAFT
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It is expressly understood that the experience, knowledge, capability,
and reputation of the foregoing Principals were a substantial inducement for
City to enter into this Agreement. Therefore, the foregoing Principals shall be
responsible during the term of this Agreement for directing all activities of
Contracting Party and devoting sufficient time to personally supervise the
Services hereunder. For purposes of this Agreement, the foregoing Principals
may not be changed by Contracting Party and no other personnel may be
assigned to perform the Services required hereunder without the express
written approval of City.
4.2 Contract Officer. The “Contract Officer”, otherwise known as
the Bryan McKinney, PE, City Engineer, or assigned designee may be
designated in writing by the City Manager of the City. It shall be Contracting
Party’s responsibility to assure that the Contract Officer, or assigned
designee, is kept informed of the progress of the performance of the Services,
and Contracting Party shall refer any decisions, that must be made by City to
the Contract Officer, or assigned designee. Unless otherwise specified
herein, any approval of City required hereunder shall mean the approval of
the Contract Officer, or assigned designee. The Contract Officer, or
assigned designee, shall have authority to sign all documents on behalf of
City required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The
experience, knowledge, capability, and reputation of Contracting Party, its
principals, and its employees were a substantial inducement for City to enter
into this Agreement. Except as set forth in this Agreement, Contracting Party
shall not contract or subcontract with any other entity to perform in whole or
in part the Services required hereunder without the express written approval
of City. In addition, neither this Agreement nor any interest herein may be
transferred, assigned, conveyed, hypothecated, or encumbered, voluntarily or
by operation of law, without the prior written approval of City. Transfers
restricted hereunder shall include the transfer to any person or group of
persons acting in concert of more than twenty five percent (25%) of the
present ownership and/or control of Contracting Party, taking all transfers into
account on a cumulative basis. Any attempted or purported assignment or
contracting or subcontracting by Contracting Party without City’s express
written approval shall be null, void, and of no effect. No approved transfer
shall release Contracting Party of any liability hereunder without the express
consent of City.
4.4 Independent Contractor. Neither City nor any of its employees
shall have any control over the manner, mode, or means by which Contracting
Party, its agents, or its employees, perform the Services required herein,
except as otherwise set forth herein. City shall have no voice in the selection, DRAFT
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discharge, supervision, or control of Contracting Party’s employees, servants,
representatives, or agents, or in fixing their number or hours of service.
Contracting Party shall perform all Services required herein as an independent
contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role.
Contracting Party shall not at any time or in any manner represent that it or
any of its agents or employees are agents or employees of City. City shall not
in any way or for any purpose become or be deemed to be a partner of
Contracting Party in its business or otherwise or a joint venture or a member
of any joint enterprise with Contracting Party. Contracting Party shall have
no power to incur any debt, obligation, or liability on behalf of City.
Contracting Party shall not at any time or in any manner represent that it or
any of its agents or employees are agents or employees of City. Except for
the Contract Sum paid to Contracting Party as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Contracting Party
for performing the Services hereunder for City. City shall not be liable for
compensation or indemnification to Contracting Party for injury or sickness
arising out of performing the Services hereunder. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the
contrary, Contracting Party and any of its employees, agents, and
subcontractors providing services under this Agreement shall not qualify for
or become entitled to any compensation, benefit, or any incident of
employment by City, including but not limited to eligibility to enroll in the
California Public Employees Retirement System (“PERS”) as an employee of
City and entitlement to any contribution to be paid by City for employer
contributions and/or employee contributions for PERS benefits. Contracting
Party agrees to pay all required taxes on amounts paid to Contracting Party
under this Agreement, and to indemnify and hold City harmless from any and
all taxes, assessments, penalties, and interest asserted against City by reason
of the independent contractor relationship created by this Agreement.
Contracting Party shall fully comply with the workers’ compensation laws
regarding Contracting Party and Contracting Party’s employees. Contracting
Party further agrees to indemnify and hold City harmless from any failure of
Contracting Party to comply with applicable workers’ compensation laws. City
shall have the right to offset against the amount of any payment due to
Contracting Party under this Agreement any amount due to City from
Contracting Party as a result of Contracting Party’s failure to promptly pay to
City any reimbursement or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Contracting Party
represents that it employs or will employ at its own expense all personnel
required for the satisfactory performance of any and all of the Services set
forth herein. Contracting Party represents that the Services required herein
will be performed by Contracting Party or under its direct supervision, and DRAFT
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that all personnel engaged in such work shall be fully qualified and shall be
authorized and permitted under applicable State and local law to perform such
tasks and services.
4.6 City Cooperation. City shall provide Contracting Party with any
plans, publications, reports, statistics, records, or other data or information
pertinent to the Services to be performed hereunder which are reasonably
available to Contracting Party only from or through action by City.
5.INSURANCE.
5.1 Insurance. Prior to the beginning of any Services under this
Agreement and throughout the duration of the term of this Agreement,
Contracting Party shall procure and maintain, at its sole cost and expense,
and submit concurrently with its execution of this Agreement, policies of
insurance as set forth in “Exhibit E” (the “Insurance Requirements”) which is
incorporated herein by this reference and expressly made a part hereof.
5.2 Proof of Insurance. Contracting Party shall provide Certificate of
Insurance to Agency along with all required endorsements. Certificate of
Insurance and endorsements must be approved by Agency’s Risk Manager
prior to commencement of performance.
6.INDEMNIFICATION.
6.1 Indemnification. To the fullest extent permitted by law,
Contracting Party shall indemnify, protect, defend (with counsel selected by
City), and hold harmless City and any and all of its officers, employees,
agents, and volunteers as set forth in “Exhibit F” (“Indemnification”) which is
incorporated herein by this reference and expressly made a part hereof.
7.RECORDS AND REPORTS.
7.1 Reports. Contracting Party shall periodically prepare and submit
to the Contract Officer, or assigned designee, such reports concerning
Contracting Party’s performance of the Services required by this Agreement
as the Contract Officer, or assigned designee, shall require. Contracting
Party hereby acknowledges that City is greatly concerned about the cost of
the Services to be performed pursuant to this Agreement. For this reason,
Contracting Party agrees that if Contracting Party becomes aware of any facts,
circumstances, techniques, or events that may or will materially increase or
decrease the cost of the Services contemplated herein or, if Contracting Party
is providing design services, the cost of the project being designed,
Contracting Party shall promptly notify the Contract Officer, or assigned
designee, of said fact, circumstance, technique, or event and the estimated DRAFT
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increased or decreased cost related thereto and, if Contracting Party is
providing design services, the estimated increased or decreased cost estimate
for the project being designed.
7.2 Records. Contracting Party shall keep, and require any
subcontractors to keep, such ledgers, books of accounts, invoices, vouchers,
canceled checks, reports (including but not limited to payroll reports), studies,
or other documents relating to the disbursements charged to City and the
Services performed hereunder (the “Books and Records”), as shall be
necessary to perform the Services required by this Agreement and enable the
Contract Officer, or assigned designee, to evaluate the performance of such
Services. Any and all such Books and Records shall be maintained in
accordance with generally accepted accounting principles and shall be
complete and detailed. The Contract Officer, or assigned designee, shall
have full and free access to such Books and Records at all times during normal
business hours of City, including the right to inspect, copy, audit, and make
records and transcripts from such Books and Records. Such Books and
Records shall be maintained for a period of three (3) years following
completion of the Services hereunder, and City shall have access to such
Books and Records in the event any audit is required. In the event of
dissolution of Contracting Party’s business, custody of the Books and Records
may be given to City, and access shall be provided by Contracting Party’s
successor in interest. Under California Government Code Section 8546.7, if
the amount of public funds expended under this Agreement exceeds Ten
Thousand Dollars ($10,000.00), this Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part
of any audit of City, for a period of three (3) years after final payment under
this Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps,
designs, photographs, studies, surveys, data, notes, computer files, reports,
records, documents, and other materials plans, drawings, estimates, test
data, survey results, models, renderings, and other documents or works of
authorship fixed in any tangible medium of expression, including but not
limited to, physical drawings, digital renderings, or data stored digitally,
magnetically, or in any other medium prepared or caused to be prepared by
Contracting Party, its employees, subcontractors, and agents in the
performance of this Agreement (the “Documents and Materials”) shall be the
property of City and shall be delivered to City upon request of the Contract
Officer, or assigned designee, or upon the expiration or termination of this
Agreement, and Contracting Party shall have no claim for further employment
or additional compensation as a result of the exercise by City of its full rights
of ownership use, reuse, or assignment of the Documents and Materials
hereunder. Any use, reuse or assignment of such completed Documents and DRAFT
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Materials for other projects and/or use of uncompleted documents without
specific written authorization by Contracting Party will be at City’s sole risk
and without liability to Contracting Party, and Contracting Party’s guarantee
and warranties shall not extend to such use, revise, or assignment.
Contracting Party may retain copies of such Documents and Materials for its
own use. Contracting Party shall have an unrestricted right to use the
concepts embodied therein. All subcontractors shall provide for assignment
to City of any Documents and Materials prepared by them, and in the event
Contracting Party fails to secure such assignment, Contracting Party shall
indemnify City for all damages resulting therefrom.
7.4 In the event City or any person, firm, or corporation authorized
by City reuses said Documents and Materials without written verification or
adaptation by Contracting Party for the specific purpose intended and causes
to be made or makes any changes or alterations in said Documents and
Materials, City hereby releases, discharges, and exonerates Contracting Party
from liability resulting from said change. The provisions of this clause shall
survive the termination or expiration of this Agreement and shall thereafter
remain in full force and effect.
7.5 Licensing of Intellectual Property. This Agreement creates a non-
exclusive and perpetual license for City to copy, use, modify, reuse, or
sublicense any and all copyrights, designs, rights of reproduction, and other
intellectual property embodied in the Documents and Materials. Contracting
Party shall require all subcontractors, if any, to agree in writing that City is
granted a non-exclusive and perpetual license for the Documents and
Materials the subcontractor prepares under this Agreement. Contracting Party
represents and warrants that Contracting Party has the legal right to license
any and all of the Documents and Materials. Contracting Party makes no such
representation and warranty in regard to the Documents and Materials which
were prepared by design professionals other than Contracting Party or
provided to Contracting Party by City. City shall not be limited in any way in
its use of the Documents and Materials at any time, provided that any such
use not within the purposes intended by this Agreement shall be at City’s sole
risk.
7.6 Release of Documents. The Documents and Materials shall not be
released publicly without the prior written approval of the Contract Officer, or
assigned designee, or as required by law. Contracting Party shall not
disclose to any other entity or person any information regarding the activities
of City, except as required by law or as authorized by City.
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 DRAFT
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documents, discussion notes, or other information, if any, developed or
received by Contracting Party or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Contracting Party to any
person or entity without prior written authorization by City or unless required
by law. City shall grant authorization for disclosure if required by any lawful
administrative or legal proceeding, court order, or similar directive with the
force of law. All City data, data lists, trade secrets, documents with personal
identifying information, documents that are not public records, draft
documents, discussions, or other information shall be returned to City upon
the termination or expiration of this Agreement. Contracting Party’s covenant
under this section shall survive the termination or expiration of this
Agreement.
8.ENFORCEMENT OF AGREEMENT.
8.1 California Law. This Agreement shall be interpreted, construed,
and governed both as to validity and to performance of the parties in
accordance with the laws of the State of California. Legal actions concerning
any dispute, claim, or matter arising out of or in relation to this Agreement
shall be instituted in the Superior Court of the County of Riverside, State of
California, or any other appropriate court in such county, and Contracting
Party covenants and agrees to submit to the personal jurisdiction of such court
in the event of such action.
8.2 Disputes. In the event of any dispute arising under this
Agreement, the injured party shall notify the injuring party in writing of its
contentions by submitting a claim therefore. The injured party shall continue
performing its obligations hereunder so long as the injuring party commences
to cure such default within ten (10) days of service of such notice and
completes the cure of such default within forty-five (45) days after service of
the notice, or such longer period as may be permitted by the Contract Officer,
or assigned designee; provided that if the default is an immediate danger to
the health, safety, or general welfare, City may take such immediate action
as City deems warranted. Compliance with the provisions of this Section shall
be a condition precedent to termination of this Agreement for cause and to
any legal action, and such compliance shall not be a waiver of any party’s right
to take legal action in the event that the dispute is not cured, provided that
nothing herein shall limit City’s right to terminate this Agreement without
cause pursuant to this Article 8.0. During the period of time that Contracting
Party is in default, City shall hold all invoices and shall, when the default is
cured, proceed with payment on the 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. DRAFT
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8.3 Retention of Funds. City may withhold from any monies payable
to Contracting Party sufficient funds to compensate City for any losses, costs,
liabilities, or damages it reasonably believes were suffered by City due to the
default of Contracting Party in the performance of the Services required by
this Agreement.
8.4 Waiver. No delay or omission in the exercise of any right or
remedy of a non-defaulting party on any default shall impair such right or
remedy or be construed as a waiver. City’s consent or approval of any act by
Contracting Party requiring City’s consent or approval shall not be deemed to
waive or render unnecessary City’s consent to or approval of any subsequent
act of Contracting Party. Any waiver by either party of any default must be in
writing and shall not be a waiver of any other default concerning the same or
any other provision of this Agreement.
8.5 Rights and Remedies are Cumulative. Except with respect to
rights and remedies expressly declared to be exclusive in this Agreement, the
rights and remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
8.6 Legal Action. In addition to any other rights or remedies, either
party may take legal action, at law or at equity, to cure, correct, or remedy
any default, to recover damages for any default, to compel specific
performance of this Agreement, to obtain declaratory or injunctive relief, or
to obtain any other remedy consistent with the purposes of this Agreement.
8.7 Termination Prior To Expiration of Term. This Section shall govern
any termination of this Agreement, except as specifically provided in the
following Section for termination for cause. City reserves the right to
terminate this Agreement at any time, with or without cause, upon thirty
(30) days’ written notice to Contracting Party. Upon receipt of any notice of
termination, Contracting Party shall immediately cease all Services hereunder
except such as may be specifically approved by the Contract Officer, or
assigned designee. Contracting Party shall be entitled to compensation for
all Services rendered prior to receipt of the notice of termination and for any
Services authorized by the Contract Officer, or assigned designee, thereafter
in accordance with the Schedule of Compensation or such as may be approved
by the Contract Officer, or assigned designee, except amounts held as a
retention pursuant to this Agreement.
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 DRAFT
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Party is permitted to occupy hereunder and City may, after compliance with
the provisions of Section 8.2, take over the Services and prosecute the same
to completion by contract or otherwise, and Contracting Party shall be liable
to the extent that the total cost for completion of the Services required
hereunder exceeds the compensation herein stipulated (provided that City
shall use reasonable efforts to mitigate such damages), and City may withhold
any payments to Contracting Party for the purpose of setoff or partial payment
of the amounts owed City.
8.9 Attorneys’ Fees. If either party to this Agreement is required to
initiate or defend or made a party to any action or proceeding in any way
connected with this Agreement, the prevailing party in such action or
proceeding, in addition to any other relief which may be granted, whether
legal or equitable, shall be entitled to reasonable attorneys’ fees; provided,
however, that the attorneys’ fees awarded pursuant to this Section shall not
exceed the hourly rate paid by City for legal services multiplied by the
reasonable number of hours spent by the prevailing party in the conduct of
the litigation. Attorneys’ fees shall include attorneys’ fees on any appeal, and
in addition a party entitled to attorneys’ fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and
discovery, and all other necessary costs the court allows which are incurred in
such litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment. The court may set such fees in the same
action or in a separate action brought for that purpose.
9.CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1 Non-liability of City Officers and Employees. No officer, official,
employee, agent, representative, or volunteer of City shall be personally liable
to Contracting Party, or any successor in interest, in the event or any default
or breach by City or for any amount which may become due to Contracting
Party or to its successor, or for breach of any obligation of the terms of this
Agreement.
9.2 Conflict of Interest. Contracting Party covenants that neither it,
nor any officer or principal of it, has or shall acquire any interest, directly or
indirectly, which would conflict in any manner with the interests of City or
which would in any way hinder Contracting Party’s performance of the
Services under this Agreement. Contracting Party further covenants that in
the performance of this Agreement, no person having any such interest shall
be employed by it as an officer, employee, agent, or subcontractor without
the express written consent of the Contract Officer, or assigned designee.
Contracting Party agrees to at all times avoid conflicts of interest or the DRAFT
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appearance of any conflicts of interest with the interests of City in the
performance of this Agreement.
No officer or employee of City shall have any financial interest, direct
or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to this Agreement which effects his financial
interest or the financial interest of any corporation, partnership or association
in which he is, directly or indirectly, interested, in violation of any State statute
or regulation. Contracting Party warrants that it has not paid or given and will
not pay or give any third party any money or other consideration for obtaining
this Agreement.
9.3 Covenant against Discrimination. Contracting Party covenants
that, by and for itself, its heirs, executors, assigns, and all persons claiming
under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of any
impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status, sexual orientation, national origin, or ancestry in
the performance of this Agreement. Contracting Party shall take affirmative
action to ensure that applicants are employed and that employees are treated
during employment without regard to their race, color, creed, religion, sex,
marital status, sexual orientation, national origin, or ancestry.
10.MISCELLANEOUS PROVISIONS.
10.1 Notice. Any notice, demand, request, consent, approval, or
communication either party desires or is required to give the other party or
any other person shall be in writing and either served personally or sent by
prepaid, first-class mail to the address set forth below. Either party may
change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated forty-eight (48) hours from
the time of mailing if mailed as provided in this Section.
To City:
CITY OF LA QUINTA
Attention: Bryan McKinney, PE
78495 Calle Tampico
La Quinta, California 92253
To Contracting Party:
VENDORS COMPANY NAME
VENDORS CONTACT
VENDORS STREET ADDRESS
VENDORS CITY, STATE, ZIP DRAFT
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10.2 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed
for or against either party by reason of the authorship of this Agreement or
any other rule of construction which might otherwise apply.
10.3 Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only
and shall not limit or otherwise affect the terms of this Agreement.
10.4 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, and such counterparts shall
constitute one and the same instrument
10.5 Integrated Agreement. This Agreement including the exhibits
hereto is the entire, complete, and exclusive expression of the understanding
of the parties. It is understood that there are no oral agreements between
the parties hereto affecting this Agreement and this Agreement supersedes
and cancels any and all previous negotiations, arrangements, agreements,
and understandings, if any, between the parties, and none shall be used to
interpret this Agreement.
10.6 Amendment. No amendment to or modification of this Agreement
shall be valid unless made in writing and approved by Contracting Party and
by the City Council of City. The parties agree that this requirement for written
modifications cannot be waived and that any attempted waiver shall be void.
10.7 Severability. In the event that any one or more of the articles,
phrases, sentences, clauses, paragraphs, or sections contained in this
Agreement shall be declared invalid or unenforceable, such invalidity or
unenforceability shall not affect any of the remaining articles, phrases,
sentences, clauses, paragraphs, or sections of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder unless the invalid provision is so material that its
invalidity deprives either party of the basic benefit of their bargain or renders
this Agreement meaningless.
10.8 Unfair Business Practices Claims. In entering into this Agreement,
Contracting Party offers and agrees to assign to City all rights, title, and
interest in and to all causes of action it may have under Section 4 of the
Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2,
(commencing with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or materials
related to this Agreement. This assignment shall be made and become
effective at the time City renders final payment to Contracting Party without
further acknowledgment of the parties. DRAFT
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10.9 No Third-Party Beneficiaries. With the exception of the specific
provisions set forth in this Agreement, there are no intended third-party
beneficiaries under this Agreement and no such other third parties shall have
any rights or obligations hereunder.
10.10 Authority. The persons executing this Agreement on behalf of
each of the parties hereto represent and warrant that (i) such party is duly
organized and existing, (ii) they are duly authorized to execute and deliver
this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) that
entering into this Agreement does not violate any provision of any other
Agreement to which said party is bound. This Agreement shall be binding
upon the heirs, executors, administrators, successors, and assigns of the
parties.
[SIGNATURES ON FOLLOWING PAGE] DRAFT
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the dates stated below.
CITY OF LA QUINTA,
a California Municipal Corporation
JON MCMILLEN, City Manager
City of La Quinta, California
Dated:
CONTRACTING PARTY:
By:
Name:
Title:
ATTEST:
MONIKA RADEVA, City Clerk
La Quinta, California
By:
Name:
Title:
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
NOTE: (1) TWO SIGNATURES ARE REQUIRED IF A CORPORATION’S
BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE STATE THAT TWO SIGNATURES ARE REQUIRED
ON CONTRACTS, AGREEMENTS, AMENDMENTS, CHANGE ORDERS, ETC.
(2) 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.
DRAFT
Exhibit A
Page 1 of 5 Last revised summer 2017
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]
OR
[See Attached]
DRAFT
Exhibit A
Page 2 of 5
ADDENDUM TO AGREEMENT
Re: Scope of Services
If the Scope of Services include construction, alteration, demolition,
installation, repair, or maintenance affecting real property or structures or
improvements of any kind appurtenant to real property, the following apply:
1. Prevailing Wage Compliance. If Contracting Party is a contractor
performing public works and maintenance projects, as described in this
Section 1.3, Contracting Party shall comply with applicable Federal, State, and
local laws. Contracting Party is aware of the requirements of California Labor
Code Sections 1720, et seq., and 1770, et seq., as well as California Code of
Regulations, Title 8, Sections 16000, et seq., (collectively, the “Prevailing
Wage Laws”), and La Quinta Municipal Code Section 3.12.040, which require
the payment of prevailing wage rates and the performance of other
requirements on “Public works” and “Maintenance” projects. If the Services
are being performed as part of an applicable “Public works” or “Maintenance”
project, as defined by the Prevailing Wage Laws, and if construction work over
twenty-five thousand dollars ($25,000.00) and/or alterations, demolition,
repair or maintenance work over fifteen thousand dollars ($15,000.00) is
entered into or extended on or after January 1, 2015 by this Agreement,
Contracting Party agrees to fully comply with such Prevailing Wage Laws
including, but not limited to, requirements related to the maintenance of
payroll records and the employment of apprentices. Pursuant to California
Labor Code Section 1725.5, no contractor or subcontractor may be awarded
a contract for public work on a “Public works” project unless registered with
the California Department of Industrial Relations (“DIR”) at the time the
contract is awarded. If the Services are being performed as part of an
applicable “Public works” or “Maintenance” project, as defined by the
Prevailing Wage Laws, this project is subject to compliance monitoring and
enforcement by the DIR. Contracting Party will maintain and will require all
subcontractors to maintain valid and current DIR Public Works contractor
registration during the term of this Agreement. Contracting Party shall notify
City in writing immediately, and in no case more than twenty-four (24) hours,
after receiving any information that Contracting Party’s or any of its
subcontractor’s DIR registration status has been suspended, revoked, expired,
or otherwise changed. It is understood that it is the responsibility of
Contracting Party to determine the correct salary scale. Contracting Party
shall make copies of the prevailing rates of per diem wages for each craft,
classification, or type of worker needed to execute the Services available to
interested parties upon request, and shall post copies at Contracting Party’s
principal place of business and at the project site, if any. The statutory
penalties for failure to pay prevailing wage or to comply with State wage and
hour laws will be enforced. Contracting Party must forfeit to City TWENTY-DRAFT
Exhibit A
Page 3 of 5
FIVE DOLLARS ($25.00) per day for each worker who works in excess of the
minimum working hours when Contracting Party does not pay overtime. In
accordance with the provisions of Labor Code Sections 1810 et seq., eight
(8) hours is the legal working day. Contracting Party also shall comply with
State law requirements to maintain payroll records and shall provide for
certified records and inspection of records as required by California Labor Code
Section 1770 et seq., including Section 1776. In addition to the other
indemnities provided under this Agreement, Contracting Party shall defend
(with counsel selected by City), indemnify, and hold City, its elected officials,
officers, employees, and agents free and harmless from any claim or liability
arising out of any failure or alleged failure to comply with the Prevailing Wage
Laws. It is agreed by the parties that, in connection with performance of the
Services, including, without limitation, any and all “Public works” (as defined
by the Prevailing Wage Laws), Contracting Party shall bear all risks of payment
or non-payment of prevailing wages under California law and/or the
implementation of Labor Code Section 1781, as the same may be amended
from time to time, and/or any other similar law. Contracting Party
acknowledges and agrees that it shall be independently responsible for
reviewing the applicable laws and regulations and effectuating compliance
with such laws. Contracting Party shall require the same of all subcontractors.
2. Retention. Payments shall be made in accordance with the
provisions of Article 2.0 of the Agreement. In accordance with said Sections,
City shall pay Contracting Party a sum based upon ninety-five percent (95%)
of the Contract Sum apportionment of the labor and materials incorporated
into the Services under this Agreement during the month covered by said
invoice. The remaining five percent (5%) thereof shall be retained as
performance security to be paid to Contracting Party within sixty (60) days
after final acceptance of the Services by the City Council of City, after
Contracting Party has furnished City with a full release of all undisputed
payments under this Agreement, if required by City. In the event there are
any claims specifically excluded by Contracting Party from the operation of the
release, City may retain proceeds (per Public Contract Code § 7107) of up to
one hundred fifty percent (150%) of the amount in dispute. City’s failure to
deduct or withhold shall not affect Contracting Party’s obligations under the
Agreement.
3. Utility Relocation. City is responsible for removal, relocation, or
protection of existing main or trunk-line utilities to the extent such utilities
were not identified in the invitation for bids or specifications. City shall
reimburse Contracting Party for any costs incurred in locating, repairing
damage not caused by Contracting Party, and removing or relocating such
unidentified utility facilities. Contracting Party shall not be assessed liquidated DRAFT
Exhibit A
Page 4 of 5
damages for delay arising from the removal or relocation of such unidentified
utility facilities.
4. Trenches or Excavations. Pursuant to California Public Contract
Code Section 7104, in the event the work included in this Agreement requires
excavations more than four (4) feet in depth, the following shall apply:
(a) Contracting Party shall promptly, and before the following
conditions are disturbed, notify City, in writing, of any: (1) material that
Contracting Party believes may be material that is hazardous waste, as
defined in Section 25117 of the Health and Safety Code, that is required to be
removed to a Class I, Class II, or Class III disposal site in accordance with
provisions of existing law; (2) subsurface or latent physical conditions at the
site different from those indicated by information about the site made
available to bidders prior to the deadline for submitting bids; or (3) unknown
physical conditions at the site of any unusual nature, different materially from
those ordinarily encountered and generally recognized as inherent in work of
the character provided for in the Agreement.
(b) City shall promptly investigate the conditions, and if it finds
that the conditions do materially so differ, or do involve hazardous waste, and
cause a decrease or increase in Contracting Party’s cost of, or the time
required for, performance of any part of the work shall issue a change order
per Section 1.8 of the Agreement.
(c) in the event that a dispute arises between City and
Contracting Party whether the conditions materially differ, or involve
hazardous waste, or cause a decrease or increase in Contracting Party’s cost
of, or time required for, performance of any part of the work, Contracting
Party shall not be excused from any scheduled completion date provided for
by this Agreement, but shall proceed with all work to be performed under this
Agreement. Contracting Party shall retain any and all rights provided either
by contract or by law which pertain to the resolution of disputes and protests
between the contracting Parties.
5. Safety. Contracting Party shall execute and maintain its work so
as to avoid injury or damage to any person or property. In carrying out the
Services, Contracting Party shall at all times be in compliance with all
applicable local, state, and federal laws, rules and regulations, and shall
exercise all necessary precautions for the safety of employees appropriate to
the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be
limited to: (A) adequate life protection and lifesaving equipment and
procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders, DRAFT
Exhibit A
Page 5 of 5
bridges, gang planks, confined space procedures, trenching and shoring,
equipment and other safety devices, equipment and wearing apparel as are
necessary or lawfully required to prevent accidents or injuries; and
(C) adequate facilities for the proper inspection and maintenance of all safety
measures.
6. Liquidated Damages. Since the determination of actual damages
for any delay in performance of the Agreement would be extremely difficult or
impractical to determine in the event of a breach of this Agreement,
Contracting Party shall be liable for and shall pay to City the sum of One
Thousand dollars ($1,000.00) as liquidated damages for each working day of
delay in the performance of any of the Services required hereunder, as
specified in the Schedule of Performance. In addition, liquidated damages
may be assessed for failure to comply with the emergency call out
requirements, if any, described in the Scope of Services. City may withhold
from any moneys payable on account of the Services performed by
Contracting Party any accrued liquidated damages.
DRAFT
Exhibit B
Page 1 of 1
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for
in Section 2.3 of this Agreement, the maximum total compensation to be paid
to Contracting Party under this Agreement is not to exceed
______________________ ($ __________) (“Contract Sum”). The Contract
Sum shall be paid to Contracting Party in installment payments made on a
monthly basis and in an amount identified in Contracting Party’s schedule of
compensation attached hereto for the work tasks performed and properly
invoiced by Contracting Party in conformance with Section 2.2 of this
Agreement. DRAFT
Exhibit C
Page 1 of 1
Exhibit C
Schedule of Performance
Contracting Party shall complete all services identified in the Scope of
Services, Exhibit A of this Agreement, in accordance with the Project
Schedule, attached hereto and incorporated herein by this reference. DRAFT
Exhibit D
Page 1 of 1
Exhibit D
Special Requirements
[insert Special Requirements or indicate “None” if there are none]
DRAFT
Exhibit E
Page 1 of 6
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)
$2,000,000 (per occurrence)
$4,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers’ Compensation
(per statutory requirements)
Must include the following endorsements:
Workers Compensation with Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if applicable
Contracting Party shall procure and maintain, at its cost, and submit
concurrently with its execution of this Agreement, Commercial General
Liability insurance against all claims for injuries against persons or damages
to property resulting from Contracting Party’s acts or omissions rising out of
or related to Contracting Party’s performance under this Agreement. The
insurance policy shall contain a severability of interest clause providing that
the coverage shall be primary for losses arising out of Contracting Party’s
performance hereunder and neither City nor its insurers shall be required to
contribute to any such loss. An endorsement evidencing the foregoing and
naming the City and its officers and employees as additional insured (on the
Commercial General Liability policy only) must be submitted concurrently with
the execution of this Agreement and approved by City prior to commencement
of the services hereunder.
Contracting Party shall carry automobile liability insurance of
$5,000,000 per accident against all claims for injuries against persons or DRAFT
Exhibit E
Page 2 of 6
damages to property arising out of the use of any automobile by Contracting
Party, its officers, any person directly or indirectly employed by Contracting
Party, any subcontractor or agent, or anyone for whose acts any of them may
be liable, arising directly or indirectly out of or related to Contracting Party’s
performance under this Agreement. If Contracting Party or Contracting
Party’s employees will use personal autos in any way on this project,
Contracting Party shall provide evidence of personal auto liability coverage for
each such person. The term “automobile” includes, but is not limited to, a
land motor vehicle, trailer or semi-trailer designed for travel on public roads.
The automobile insurance policy shall contain a severability of interest clause
providing that coverage shall be primary for losses arising out of Contracting
Party’s performance hereunder and neither City nor its insurers shall be
required to contribute to such loss.
Professional Liability or Errors and Omissions Insurance as
appropriate shall be written on a policy form coverage specifically designed to
protect against acts, errors or omissions of the Contracting Party and “Covered
Professional Services” as designated in the policy must specifically include
work performed under this agreement. The policy limit shall be no less than
$1,000,000 per claim and in the aggregate. The policy must “pay on behalf
of” the insured and must include a provision establishing the insurer’s duty to
defend. The policy retroactive date shall be on or before the effective date of
this agreement.
Contracting Party shall carry Workers’ Compensation Insurance in
accordance with State Worker’s Compensation laws with employer’s liability
limits no less than $1,000,000 per accident or disease.
If coverage is maintained on a claims-made basis, Contracting Party shall
maintain such coverage for an additional period of three (3) years following
termination of the contract.
Contracting Party shall provide written notice to City within ten
(10) working days if: (1) any of the required insurance policies is terminated;
(2) the limits of any of the required polices are reduced; or (3) the deductible
or self-insured retention is increased. In the event any of said policies of
insurance are cancelled, Contracting Party shall, prior to the cancellation date,
submit new evidence of insurance in conformance with this Exhibit to the
Contract Officer. The procuring of such insurance or the delivery of policies
or certificates evidencing the same shall not be construed as a limitation of
Contracting Party’s obligation to indemnify City, its officers, employees,
contractors, subcontractors, or agents.
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 DRAFT
Exhibit E
Page 3 of 6
endorsements to the extent and within the time herein required, City may, at
its sole option:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement.
b. Order Contracting Party to stop work under this Agreement
and/or withhold any payment(s) which become due to Contracting Party
hereunder until Contracting Party demonstrates compliance with the
requirements hereof.
c. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to
any other remedies City may have. The above remedies are not the exclusive
remedies for Contracting Party’s failure to maintain or secure appropriate
policies or endorsements. Nothing herein contained shall be construed as
limiting in any way the extent to which Contracting Party may be held
responsible for payments of damages to persons or property resulting from
Contracting Party’s or its subcontractors’ performance of work under this
Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage
by Contracting Party. Contracting Party and City agree to the following with
respect to insurance provided by Contracting Party:
1. Contracting Party agrees to have its insurer endorse the third
party general liability coverage required herein to include as additional
insureds City, its officials, employees, and agents, using standard ISO
endorsement No. CG 2010 with an edition prior to 1992. Contracting Party
also agrees to require all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this
Agreement shall prohibit Contracting Party, or Contracting Party’s employees,
or agents, from waiving the right of subrogation prior to a loss. Contracting
Party agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors and
subcontractors to do likewise.
3. All insurance coverage and limits provided by Contracting Party
and available or applicable to this Agreement are intended to apply to the full
extent of the policies. Nothing contained in this Agreement or any other
agreement relating to City or its operations limits the application of such
insurance coverage. DRAFT
Exhibit E
Page 4 of 6
4. None of the coverages required herein will be in compliance with
these requirements if they include any limiting endorsement of any kind that
has not been first submitted to City and approved of in writing.
5. No liability policy shall contain any provision or definition that
would serve to eliminate so-called “third party action over” claims, including
any exclusion for bodily injury to an employee of the insured or of any
contractor or subcontractor.
6. All coverage types and limits required are subject to approval,
modification and additional requirements by the City, as the need arises.
Contracting Party shall not make any reductions in scope of coverage (e.g.
elimination of contractual liability or reduction of discovery period) that may
affect City’s protection without City’s prior written consent.
7. Proof of compliance with these insurance requirements, consisting
of certificates of insurance evidencing all the coverages required and an
additional insured endorsement to Contracting Party’s general liability policy,
shall be delivered to City at or prior to the execution of this Agreement. In
the event such proof of any insurance is not delivered as required, or in the
event such insurance is canceled at any time and no replacement coverage is
provided, City has the right, but not the duty, to obtain any insurance it deems
necessary to protect its interests under this or any other agreement and to
pay the premium. Any premium so paid by City shall be charged to and
promptly paid by Contracting Party or deducted from sums due Contracting
Party, at City option.
8. It is acknowledged by the parties of this agreement that all
insurance coverage required to be provided by Contracting Party or any
subcontractor, is intended to apply first and on a primary, non-contributing
basis in relation to any other insurance or self-insurance available to City.
9. Contracting Party agrees to ensure that subcontractors, and any
other party involved with the project that is brought onto or involved in the
project by Contracting Party, provide the same minimum insurance coverage
required of Contracting Party. Contracting Party agrees to monitor and review
all such coverage and assumes all responsibility for ensuring that such
coverage is provided in conformity with the requirements of this section.
Contracting Party agrees that upon request, all agreements with
subcontractors and others engaged in the project will be submitted to City for
review.
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 DRAFT
Exhibit E
Page 5 of 6
further agrees that it will not allow any contractor, subcontractor, Architect,
Engineer or other entity or person in any way involved in the performance of
work on the project contemplated by this agreement to self-insure its
obligations to City. If Contracting Party’s existing coverage includes a
deductible or self-insured retention, the deductible or self-insured retention
must be declared to the City. At that time the City shall review options with
the Contracting Party, which may include reduction or elimination of the
deductible or self-insured retention, substitution of other coverage, or other
solutions.
11. The City reserves the right at any time during the term of this
Agreement to change the amounts and types of insurance required by giving
the Contracting Party ninety (90) days advance written notice of such change.
If such change results in substantial additional cost to the Contracting Party,
the City will negotiate additional compensation proportional to the increased
benefit to City.
12. For purposes of applying insurance coverage only, this Agreement
will be deemed to have been executed immediately upon any party hereto
taking any steps that can be deemed to be in furtherance of or towards
performance of this Agreement.
13. Contracting Party acknowledges and agrees that any actual or
alleged failure on the part of City to inform Contracting Party of non-
compliance with any insurance requirement in no way imposes any additional
obligations on City nor does it waive any rights hereunder in this or any other
regard.
14. Contracting Party will renew the required coverage annually as
long as City, or its employees or agents face an exposure from operations of
any type pursuant to this agreement. This obligation applies whether the
agreement is canceled or terminated for any reason. Termination of this
obligation is not effective until City executes a written statement to that effect.
15. Contracting Party shall provide proof that policies of insurance
required herein expiring during the term of this Agreement have been renewed
or replaced with other policies providing at least the same coverage. Proof
that such coverage has been ordered shall be submitted prior to expiration.
A coverage binder or letter from Contracting Party’s insurance agent to this
effect is acceptable. A certificate of insurance and an additional insured
endorsement is required in these specifications applicable to the renewing or
new coverage must be provided to City within five (5) days of the expiration
of coverages. DRAFT
Exhibit E
Page 6 of 6
16.The provisions of any workers’ compensation or similar act will not
limit the obligations of Contracting Party under this agreement. Contracting
Party expressly agrees not to use any statutory immunity defenses under such
laws with respect to City, its employees, officials, and agents.
17.Requirements of specific coverage features, or limits contained in
this section are not intended as limitations on coverage, limits or other
requirements nor as a waiver of any coverage normally provided by any given
policy. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any
party or insured to be limiting or all-inclusive.
18.These insurance requirements are intended to be separate and
distinct from any other provision in this Agreement and are intended by the
parties here to be interpreted as such.
19.The requirements in this Exhibit supersede all other sections and
provisions of this Agreement to the extent that any other section or provision
conflicts with or impairs the provisions of this Exhibit.
20.Contracting Party agrees to be responsible for ensuring that no
contract used by any party involved in any way with the project reserves the
right to charge City or Contracting Party for the cost of additional insurance
coverage required by this agreement. Any such provisions are to be deleted
with reference to City. It is not the intent of City to reimburse any third party
for the cost of complying with these requirements. There shall be no recourse
against City for payment of premiums or other amounts with respect thereto.
21.Contracting Party agrees to provide immediate notice to City of
any claim or loss against Contracting Party arising out of the work performed
under this agreement. City assumes no obligation or liability by such notice,
but has the right (but not the duty) to monitor the handling of any such claim
or claims if they are likely to involve City. DRAFT
Exhibit F
Page 1 of 3
Exhibit F
Indemnification
F.1 Indemnity for the Benefit of City.
a.Indemnification for Professional Liability. When the law
establishes a professional standard of care for Contracting Party’s Services, to
the fullest extent permitted by law, Contracting Party shall indemnify, protect,
defend (with counsel selected by City), and hold harmless City and any and
all of its officials, employees, and agents (“Indemnified Parties”) from and
against any and all claims, losses, liabilities of every kind, nature, and
description, damages, injury (including, without limitation, injury to or death
of an employee of Contracting Party or of any subcontractor), costs and
expenses of any kind, whether actual, alleged or threatened, including,
without limitation, incidental and consequential damages, court costs,
attorneys’ fees, litigation expenses, and fees of expert consultants or expert
witnesses incurred in connection therewith and costs of investigation, to the
extent same are caused in whole or in part by any negligent or wrongful act,
error or omission of Contracting Party, its officers, agents, employees or
subcontractors (or any entity or individual that Contracting Party shall bear
the legal liability thereof) in the performance of professional services under
this agreement. With respect to the design of public improvements, the
Contracting Party shall not be liable for any injuries or property damage
resulting from the reuse of the design at a location other than that specified
in Exhibit A without the written consent of the Contracting Party.
b.Indemnification for Other Than Professional Liability. Other
than in the performance of professional services and to the full extent
permitted by law, Contracting Party shall indemnify, defend (with counsel
selected by City), and hold harmless the Indemnified Parties from and against
any liability (including liability for claims, suits, actions, arbitration
proceedings, administrative proceedings, regulatory proceedings, losses,
expenses or costs of any kind, whether actual, alleged or threatened,
including, without limitation, incidental and consequential damages, court
costs, attorneys’ fees, litigation expenses, and fees of expert consultants or
expert witnesses) incurred in connection therewith and costs of investigation,
where the same arise out of, are a consequence of, or are in any way
attributable to, in whole or in part, the performance of this Agreement by
Contracting Party or by any individual or entity for which Contracting Party is
legally liable, including but not limited to officers, agents, employees, or
subcontractors of Contracting Party.
c.Indemnity Provisions for Contracts Related to Construction
(Limitation on Indemnity). Without affecting the rights of City under any DRAFT
Exhibit F
Page 2 of 3
provision of this agreement, Contracting Party shall not be required to
indemnify and hold harmless City for liability attributable to the active
negligence of City, provided such active negligence is determined by
agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where City is shown to have been actively negligent
and where City’s active negligence accounts for only a percentage of the
liability involved, the obligation of Contracting Party will be for that entire
portion or percentage of liability not attributable to the active negligence of
City.
d.Indemnification Provision for Design Professionals.
1. Applicability of this Section F.1(d). Notwithstanding
Section F.1(a) hereinabove, the following indemnification provision shall apply
to a Contracting Party who constitutes a “design professional” as the term is
defined in paragraph 3 below.
2.Scope of Indemnification. When the law establishes a
professional standard of care for Contracting Party’s Services, to the fullest
extent permitted by law, Contracting Party shall indemnify and hold harmless
City and any and all of its officials, employees, and agents (“Indemnified
Parties”) from and against any and all losses, liabilities of every kind, nature,
and description, damages, injury (including, without limitation, injury to or
death of an employee of Contracting Party or of any subcontractor), costs and
expenses, including, without limitation, incidental and consequential
damages, court costs, reimbursement of attorneys’ fees, litigation expenses,
and fees of expert consultants or expert witnesses incurred in connection
therewith and costs of investigation, to the extent same are caused by any
negligent or wrongful act, error or omission of Contracting Party, its officers,
agents, employees or subcontractors (or any entity or individual that
Contracting Party shall bear the legal liability thereof) in the performance of
professional services under this agreement. With respect to the design of
public improvements, the Contracting Party shall not be liable for any injuries
or property damage resulting from the reuse of the design at a location other
than that specified in Exhibit A without the written consent of the Contracting
Party.
3. Design Professional Defined. As used in this
Section F.1(d), the term “design professional” shall be limited to licensed
architects, registered professional engineers, licensed professional land
surveyors and landscape architects, all as defined under current law, and as
may be amended from time to time by Civil Code § 2782.8.
F.2 Obligation to Secure Indemnification Provisions. Contracting
Party agrees to obtain executed indemnity agreements with provisions DRAFT
Exhibit F
Page 3 of 3
identical to those set forth herein this Exhibit F, as applicable to the
Contracting Party, from each and every subcontractor or any other person or
entity involved by, for, with or on behalf of Contracting Party in the
performance of this Agreement. In the event Contracting Party fails to obtain
such indemnity obligations from others as required herein, Contracting Party
agrees to be fully responsible according to the terms of this Exhibit. Failure
of City to monitor compliance with these requirements imposes no additional
obligations on City and will in no way act as a waiver of any rights hereunder.
This obligation to indemnify and defend City as set forth in this Agreement are
binding on the successors, assigns or heirs of Contracting Party and shall
survive the termination of this Agreement. DRAFT