1 PROFESSIONAL SERVICES AGREEMENT
This agreement (“Agreement”) is made as of [Insert month and date] ____, [Insert Year] by and between the City of Commerce, a municipal corporation ("City") and Gibson Transportation Consulting, Inc. (“Consultant”). City and Consultant are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.”
R E C I T A L S
WHEREAS, City desires to utilize the services of Consultant as an independent contractor to provide professional services for the preparation of a Complete Streets Corridor Study (CSCS) along Telegraph Road from West City Limit (WCL) to Atlantic Boulevard to improve traffic operations and vehicular and pedestrian safety as set forth in the Scope of Services attached hereto as Exhibit A; and WHEREAS, Consultant represents that it is fully qualified to perform such consulting services by virtue of its experience and the training, education and expertise of its principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the covenants and conditions herein contained, the parties hereto agree as follows:
1. Company's Scope of Services. The nature and scope of the specific services to be performed by Consultant are as described in Exhibit A.
2. Term of Agreement. This Agreement shall commence on January 11, 2022 (the “Commencement Date”) and shall remain and continue in effect until tasks described in Exhibit A are completed, but in no event later than December 31, 2022, unless sooner terminated pursuant to the provisions of this Agreement.
3. Compensation.
A. City agrees to compensate Consultant for services under this Agreement in compliance with the schedule set forth in Exhibit A. Consultant shall submit proper monthly invoices in the form and manner specified by City. Each invoice shall include a monthly breakdown of all monthly services performed together with the hours spent on each service. Consultant shall maintain appropriate and necessary documentation supporting the monthly invoices detailing the type of service provided. It shall be available for review by the City at all reasonable times upon request.
B. Total payment to Consultant pursuant to this Agreement shall not exceed $138,200.
C. If at the request of the City, Consultant is required to incur out of pocket expenses (including but not limited to, out-of-town travel and lodging) which are above and beyond the ordinary expenses associated with performance of this Agreement, 2 Consultant shall be entitled to reimbursement of such expenses. Consultant shall only be reimbursed for those expenses which: (I) appear on Consultant’s monthly invoices; (II) are accompanied by a copy of the City’s written authorization for Consultant to incur such expenses; and (III) receipts documenting such expenses.
4. General Terms and Conditions. The General Terms and Conditions set forth in Exhibit B are incorporated as part of this Agreement. In the event of any inconsistency between the General Terms and Conditions and any other exhibit to this Agreement, the General Terms and Conditions shall control unless it is clear from the context that both parties intend the provisions of the other exhibit(s) to control.
5. Addresses.
City of Commerce
City of Commerce
2535 Commerce Way
Commerce, CA 90040
Attn: Edgar P. Cisneros, City Manager
Gibson Transportation Consulting, Inc.
Gibson Transportation Consulting, Inc.
555 W. 5th Street, Suite 3375
Los Angeles, CA 90013
Attn: Richard Gibson, Senior Associate
6. Exhibits. All exhibits referred to in this Agreement are listed here and are incorporated and made part of this Agreement by this reference.
Exhibit A – Scope of Services and Compensation Schedule Exhibit B – General Terms and Conditions
SIGNATURES ON FOLLOWING PAGE
3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below.
CITY
CITY OF COMMERCE
By: ______________________________ ______________________ Leonardo Mendoza, Mayor Date
CONSULTANT
CONSULTANT
Gibson Transportation Consulting, Inc.
By: _______________________________ ________________________ Helen Schorr, Principal Date
ATTEST:
By: ______________________________ ________________________ Len,a Shumway, City Clerk Date
APPROVED AS TO FORM:
By: ______________________________ ________________________ Noel Tapia, City Attorney Date
1 EXHIBIT A
SCOPE OF WORK
December 6, 2021
Revised December 13, 2021 at Client request
City of Commerce
2535 Commerce Way
Commerce, CA 90040
Re: PROPOSAL FOR PROFESSIONAL SERVICES
COMPLETE STREETS CORRIDOR STUDY FOR THE
TELEGRAPH CORRIDOR IMPROVEMENTS FROM WCL TO ATLANTIC
COMMERCE, CALIFORNIA Ref: P2768
Gibson Transportation Consulting, Inc. (GTC) is pleased to respond to your request for proposal to provide professional services for the preparation of a Complete Streets Corridor Study (CSCS) along Telegraph Road from the West City Limit (WCL) to Atlantic Boulevard (Study Area) to improve traffic operations and vehicular and pedestrian safety through a variety of improvements and alterations to the corridor.
This package includes a brief description of our qualifications, our detailed scope of services, and our proposed fee.
FIRM QUALIFICATIONS
GTC specializes in the preparation of the transportation and parking sections of environmental documents, neighborhood traffic management plans, bicycle and pedestrian studies, vehicle miles traveled analyses, transportation demand management plans, general and specific plans, financial pro forma analyses, and multimodal, rideshare and transportation network company planning, and micro-transit planning. GTC also prepares detailed three-dimensional micro-simulation models based on precise roadway configurations, traffic signal phasing plans, and multi-modal flow and volume data to generate realistic system renderings in order to identify and evaluate design constraints and opportunities. We work collaboratively with multi-disciplinary teams to produce clear, logical, and comprehensive technical reports and we excel in interaction with the public and with decision-makers to explain the analyses and the mitigation programs contained in those reports. We work on a wide variety of projects that vary in size and scope and our primary goal is to effectively serve all of our clients.
GTC prepared transportation studies for some of the largest and most controversial development projects in Southern California including Hollywood Crossroads, Century City Center, Playa Vista, the NBCUniversal Evolution Plan, Bakersfield Commons, and Wilshire Grand Center. GTC is currently conducting transportation analyses for Disneyland, Hollywood Central Park, The Greek Theatre, the Academy Museum of Motion Pictures, the Los Angeles County Museum of Art, and the University of Southern California at both its University Park and Health Sciences campuses, as well as studies for multiple office, school, residential, hotel, hospital, mixed-use and transit oriented developments.
City of Commerce
December 6, 2021, Revised December 13, 2021 at Client request
We recently completed studies for City of Hope, Dodger Stadium, the LAX Northside Plan Update, Providence Hospitals, and The Huntington Library, Art Collections, and Botanical Gardens. GTC led the transportation studies for the award-winning Memphis Aerotropolis:
Airport City Master Plan in Memphis, Tennessee and the shared parking element of the awardwinning Fullerton Transportation Center (FTC) Specific Plan for the City of Fullerton. We worked with the City of Buena Park planning the traffic and parking requirements for its growing E-Zone entertainment district. Other recent projects include parking, traffic and planning studies for the Cities of Alhambra, Anaheim, Arcadia, Brea, Burbank, Cerritos, Claremont, Commerce, Costa Mesa, Culver City, Downey, Irvine, Los Angeles, Manhattan Beach, Monrovia, Palmdale, Pasadena, Pomona, Roseville, San Fernando, San Marino, Santa Clarita, Santa Monica, Sierra Madre, West Hollywood, and Whittier, California; the City of Fairfax, Virginia; the Port of Los Angeles; and the California Department of Transportation (Caltrans).
GTC currently has a bench contract with the City of Commerce (City), under which we completed studies for the Telegraph & Washington Mixed-Use Project, The Citadel Phases V & VI Expansion, and the AltaMed Project Garage. GTC is currently conducting studies for Modelo (7316 Gage Avenue) and recently completed studies for the Telegraph Road Subarea Office Conversion Moratorium Extension, The Citadel Outlets, the Union Bank Training Facility, and the Strategic Materials Glass Recycling Facility.
GTC is a certified Small (Micro) Business Enterprise with the State of California.
Further information about our qualifications is provided in Attachment A and resumes for our key personnel are provided in Attachment B.
References
Tomas Carranza
Principal Transportation Engineer
Los Angeles Department of Transportation
(213) 972-8476
Tina Cherry
Director of Community Services
(Former Public Services Director)
City of Monrovia
(626) 932-5544
David Kriske
Principal Planner, Transportation
City of Burbank
(818) 238-5269
Phil Wray
Deputy Development Services Director and City Engineer
City of Arcadia
(626) 574-5488
City of Commerce
December 6, 2021, Revised December 13, 2021 at Client request
SCOPE OF SERVICES
GTC will prepare a comprehensive CSCS for Telegraph Road in the Study Area to identify any improvements that could improve traffic operations while increasing safety for all corridor users, especially pedestrians. Traffic signal installation or modifications, mid-block crossing additions or removals, road diet potential, queueing, and operations among others will be evaluated for potential inclusion in the ultimate recommendation package. Conceptual plans, detailed memorandums and presentations will be prepared in support of the analysis and conclusions to be presented Stakeholders and City officials.
PHASE 1: KICK-OFF MEETING/DATA COLLECTION
Task 1 Kick-Off Meeting
GTC will attend a kick-off meeting with the City and invited stakeholders to discuss the CSCS, data collection methods and times, and goals for the CSCS.
Task 2 Data Collections
GTC will collect data in support of the CSCS and to assist in the congestion and signal/pedestrian facility warrant analyses. The following data will be collected in the Study Area:
24-hour bi-directional daily traffic counts and speed surveys at up to 30 street segments including:
o 20 on Telegraph Road
o 10 on side streets between WCL and Atlantic
Morning/afternoon peak hour intersection traffic counts with bikes and pedestrian counts included at up to 16 intersections along Telegraph Road An on-street parking supply and restrictions inventory, including a signage inventory One weekday and one weekend day of on-street parking occupancy surveys o Spot checks taken at 10:00 AM, 3:00 PM, 8:00 PM, and midnight to assess utilization
A transit stop inventory
PHASE 2: TRANSPORTATION ANALYSIS
Task 1 Model Creation and Evaluation
GTC will create a VISSIM transportation model for the Study Area to depict existing conditions via a visual simulation and numerical level of service (LOS) analysis. GTC will conduct intersection capacity calculations, using the Highway Capacity Method LOS calculation methodology, at up to 16 study intersections to indicate existing LOS and average delay in seconds at each location.
City of Commerce
December 6, 2021, Revised December 13, 2021 at Client request
Task 2 Signal Warrant Analysis
Based on the results of the data collection and Phase 2, Task 1, GTC will work with the City to select up to four intersections for which to conduct signal warrant analyses to determine whether installation of a traffic signal is required or recommended.
Task 3 On-Street Parking and Signage Evaluation
GTC will prepare a summary of existing parking supply along Telegraph Road in the Study Area including any parking restrictions and location of parking-related signage. The parking demand surveys conducted in Phase 1 will be summarized and evaluated for the need for potential additional parking or parking supply reductions.
Task 4 Intersection Sight Distance
GTC will evaluate the sight distance at existing intersections where potential conflicts with uncontrolled movements may occur. Required sight distance will be based on the results of the speed surveys conducted in Phase 1.
Task 5 Queueing Analysis
Utilizing the results in the VISSIM model, GTC will provide a summary of existing queue lengths at Study Area approaches and identify any current deficiencies or potential safety issues from queues exceeding storage capacities.
Task 6 Transit Stop Assessment
GTC will prepare a summary of the existing transit stops in the Study Area along with service times and utilization if that data is available from the Los Angeles County Metropolitan Transportation Authority.
PHASE 3: IMPROVEMENT RECOMMENDATIONS AND EVAUATION
Task 1 Improvement Package Recommendations
Based on the results of Phase 2, GTC will create a series of recommended improvements for the Study Area including traffic signal installations, pedestrian facility improvements, potential for a road diet, intersection improvements.
GTC will working with the City to determine review the full list of potential improvements to determine the preferred set of recommended improvements to include in the CSCS. That improvement package will then be utilized to conduct the analysis in the tasks below.
City of Commerce
December 6, 2021, Revised December 13, 2021 at Client request
Task 2 VISSIM Model Update
GTC will update the VISSIM model to include the preferred improvement package to determine the effects the improvements will have on the areas studied above including:
Intersection peak hour LOS
Queueing evaluation
Crosswalk evaluation
Parking demand
Transit stops
Task 3 Coordination with Local Agencies
Depending on the specifics of the preferred improvement package GTC may need to coordinate improvement feasibility with local agencies such as Los Angeles County or Caltrans.
PHASE 4: DOCUMENTATION
Task 1 Memorandum Preparation
GTC will summarize the data collection, existing and future analysis results, and improvement package in a memorandum for City review and approval. Supporting tables, graphics, and technical appendices will be included.
Task 2 PowerPoint Presentation
GTC will work with the City to prepare a PowerPoint presentation for use in stakeholder meetings and City presentations.
PHASE 5: MEETINGS AND HEARINGS
If addition to the kick-off meeting in Phase 1, GTC will attend up to 10 bi-weekly status meetings, up to two stakeholder meetings, and up to 28 hours of City hearings including the Traffic Committee, Planning Commission, and/or City Council.
ADDITIONAL SERVICES
Attendance at additional meetings, work sessions, and public hearings, as well as the conduct of work beyond the scope identified above, may be completed for an additional fee, to be billed on a time and expense basis. Similarly, if it is determined that additional intersections need to be analyzed, the costs associated with this analysis and data collection will fall under this task.
City of Commerce
December 6, 2021, Revised December 13, 2021 at Client request
SCHEDULE
GTC could complete Phase 1 within two weeks of receipt of written Notice to Proceed. The Phase 2 existing conditions analysis could be completed within four weeks of receipt of the traffic data collected in Phase 1. Phases 3 and 4 could be completed within six weeks of determination of the preferred improvement package. Phase 5 meetings would be conducted at the direction of the Client and as required to keep stakeholders and City officials updated.
BUDGET
As detailed in Attachment C, the budget for the Scope of Services above is based upon our normal hourly billing rates, plus reimbursement for direct expenses. For the purposes of this proposal, we have assumed that the corridor study will involve the analysis of up to 16 key intersections and 39 street segments and that new morning and afternoon peak hour turning movement and 24-hour daily traffic counts will be required for the entire corridor.
Based on these assumptions, the Scope of Services above could be completed for a maximum of $138,200, including $8,800 for traffic and parking counts.
This budget is subject to change if the City makes changes to our proposed Scope of Services.
Should you have any questions, we would be happy to discuss the Scope of Services or our company in further detail.
Thank you for the opportunity to submit this proposal. We look forward to our continued work with the City.
Sincerely,
Richard Gibson, LEED Green Associate
Senior Associate
ATTACHMENT A
ATTACHMENT B
ATTACHMENT B
GIBSON TRANSPORTATION CONSULTING, INC. HOURS PER PHASE HOURLY Phase 5 TOTAL TOTAL EMPLOYEE RATE Task 1 Task 2 Task 1 Task 2 Task 3 Task 4 Task 5 Task 6 Task 1 Task 2 Task 3 Task 1 Task 2 COSTS Principal Associate $325 3 1 4 2 5 4 10 5 1 20 55 $17,875 Principal $295 0 $0 Senior Associate $195 3 2 120 5 4 5 2 1 20 80 10 20 2 38 312 $60,840 Associate $150 4 2 40 10 10 10 8 4 20 30 40 20 20 218 $32,700 Administrative Manager $160 20 20 $3,200 Technician $130 4 5 15 10 2 10 20 10 76 $9,880 Field Technician $100 30 10 4 44 $4,400 TOTAL HOURS 14 164 55 105 78 725 -- TOTAL LABOR COSTS $2,680 $4,015 $30,700 $4,125 $4,880 $4,175 $1,590 $1,055 $9,825 $21,400 $5,200 $17,325 $5,015 $16,910 -- $128,895 OTHER DIRECT COSTS: 24-Hour Traffic Counts: @ $65 per segment 30 $1,950 Radar Speed Surveys @ $75 per segment 30 $2,250 AM/PM Peak Hour Counts @ $225 per intersection 16 $3,600 Parking Occupancy Surveys @ $500 per day 2 $1,000 Mileage/Parking: @ $0.560 per mile $505 Total Other Direct Costs $9,305 TOTAL COST $138,200 Note: This estimate does not include review, permit or other fees the City or jurisdiction may assess on the project. ATTACHMENT C COST ESTIMATE TELEGRAPH CORRIDOR IMPROVEMENTS FROM WCL TO ATLANTIC Note: Hours per task by employee are for budget estimation purposes only. COMPLETE STREETS CORRIDOR STUDY Phase 1 Phase 2 Phase 3 Phase 4 1 EXHIBIT B
GENERAL TERMS AND CONDITIONS
1. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of the City of Commerce or otherwise act on behalf of Commerce as an agent.
Neither the City of Commerce nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement.
Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City of Commerce.
B. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interests asserted against City by reason of the independent Consultant relationship created by this Agreement. In the event that City is audited by any Federal or State agency regarding the independent status of Consultant and the audit in any way fails to sustain the validity of a wholly independent Consultant relationship between City and Consultant, then Consultant agrees to reimburse City for all costs, including accounting and attorney's fees, arising out of such audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant’s employees. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section 1.
D. Consultant represents to the City, and City relies on Consultant’s representations, that Consultant shall serve solely in the capacity of an independent contractor to the City. Neither the City nor any of its agents will have control over the conduct of Consultant or any of Consultant’s employees, except as otherwise set forth in the Agreement. Consultant may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. The City has no duty, obligation, or responsibility to the Consultant’s agents or employees, including the Affordable Care Act coverage requirements. Consultant is solely responsible for any tax penalties associated with the failure to offer affordable coverage to its agents and employees under the Affordable Care Act with respect to Consultant’s agents and employees. Consultant warrants and represents that the City will not be responsible and will not be held liable for issues related to Consultant’s status as an independent contractor, including Consultant’s failure to comply with Consultant’s duties, obligations, and responsibilities under the Affordable Care Act.
Consultant further agrees to defend, indemnify, and hold the City harmless for any and 2 all taxes, claims, and penalties against the City related to Consultant’s obligations under the Affordable Care Act.
2. Standard of Performance
Consultant shall perform all work to the highest professional standards and in a manner reasonably satisfactory to the City Manager or his/her designee. No additional or different tasks or services shall be performed by Consultant other than those specified in Exhibit A.
3. Indemnification.
A. Consultant is skilled in the professional calling necessary to perform the services and duties agreed to be performed under this Agreement, and City is relying upon the skill and knowledge of Consultant to perform said services and duties.
B. City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "Indemnities") shall have no liability to Consultant or any other person for, and Consultant shall indemnify, defend, protect and hold harmless Indemnities from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims"), which Indemnities may suffer or incur or to which Indemnities may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or other loss occurring as a result of or allegedly caused by Consultant’s performance of or failure to perform any services under this Agreement or by the negligent or willful acts or omissions of Consultant, its agents, officers, directors, subcontractor, sub consultant or employees, committed in performing any of the services under this Agreement. Notwithstanding the foregoing, the provisions of this subsection shall not apply to Claims occurring as a result of the City’s sole negligence or willful acts or omissions.
C. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth in this Section from each and every subcontractor, sub consultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required in this Section, Consultant agrees to be fully responsible according to the terms of this Section. Failure of the City to monitor compliance with these requirements imposes no additional obligations on City and will in no way serve as a waiver of any rights hereunder. This obligation to indemnify and defend Indemnities as set forth herein shall survive the termination of this Agreement and is in addition to any rights which City may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this Agreement or any additional insured endorsements which may extend to City.
3 4. Insurance.
A. Without limiting Consultant’s indemnification of Indemnities pursuant to Section 3 of this Agreement, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement the types and amounts of insurance as described below:
(I) Consultant shall maintain Commercial General Liability Insurance with coverage at least as broad as Insurance Services Office Commercial General Liability Form CG 00 01 in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(II) Consultant shall maintain Business Auto Coverage on ISO Business Auto Coverage Form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(III) Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance with on a state approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for all covered losses; (IV) Consultant shall maintain Professional Liability or Errors and Omissions Insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate.
Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
B. City, its officers, officials, employees and volunteers shall be named as additional insureds on the policy(ies) as to commercial general liability and automotive liability.
C. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved 4 by the City’s Risk Manager.
D. All insurance policies shall provide that the insurance coverage shall not be non-renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving City thirty (30) days' prior written notice thereof. Any such thirty (30) day notice shall be submitted to CITY via certified mail, return receipt requested, addressed to “Director of Human Resources & Risk Management,” City of Commerce, 2535 Commerce Way, Commerce, California, 90040. Consultant agrees that it will not cancel, reduce or otherwise modify said insurance coverage.
E. Consultant shall submit to City (I) insurance certificates indicating compliance with the minimum worker's compensation insurance requirements above, and (II) insurance policy endorsements indicating compliance with all other minimum insurance requirements above, not less than one (1) day prior to beginning of performance under this Agreement. Endorsements shall be executed on City’s appropriate standard forms entitled "Additional Insured Endorsement".
F. Consultant’s insurance shall be primary as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of Consultant’s insurance and shall not contribute with it.
G. Consultant agrees that if it does not keep the aforesaid insurance in full force and effect, and such insurance is available at a reasonable cost. City may take out the necessary insurance and pay the premium thereon, and the repayment thereof shall be deemed an obligation of Consultant’s and the cost of such insurance may be deducted, at the option of City, from payments due Consultant.
5. Release of Information/Confidentiality.
A. Consultant in the course of its duties may have access to confidential data of City, private individuals, or employees of the City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. Consultant’s covenant under this section shall survive the termination of this Agreement.
5 B. Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response
6. Ownership of Work Product.
A. Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by the City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identi¬fied and readily accessible. Consultant shall provide free access to the representatives of the City or its designees at reasonable times to such books and records; shall give the City the right to examine and audit said books and records; shall permit the City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment.
B. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. With respect to computer files, Consultant shall make available to the City, at the Consultant's office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files.
7. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Consultant under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it.
Furthermore, Consultant shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement. 6 B. Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by Consultant’s covenants under this section shall survive the termination of this Agreement.
8. Termination. Notwithstanding any other provision, this Agreement may be duly terminated at any time by the City at its sole discretion with or without cause by serving upon the consultant at least ten (10) days prior written notice (“Notice of Termination”).
Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. Unless expressly agreed upon in writing by the City, the City shall not be obligated to pay for any services rendered nor any costs or expenses paid or incurred after the date of termination. The effective date of termination shall be upon the date specified in the written Notice of Termination.
Consultant agrees that in the event of such termination, Consultant must refund the City its prorated share, except for services satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written Notice of Termination, Consultant shall discontinue performing services, preserve the product of the services and upon payment for services, turn over to City the product of the services in accordance with written instructions of City.
In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City.
9. Personnel. Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services.
Consultant reserves the right to determine the assignment of its own employees to the performance of Consultant’s services under this Agreement, but City reserves the right, for good cause, to require Consultant to exclude any employee from performing services on City's premises.
10. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation, in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of City relating thereto. Such nondiscrimination shall include but not be limited to the following: employment, upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
7 B. Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant state either that it is an equal opportunity employer or that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement except contracts or subcontracts for standard commercial supplies or raw materials.
11. Assignment. Consultant shall not assign or transfer any interest in this Agreement nor the performance of any of Consultant obligations hereunder, without the prior written consent of City, and any attempt by Consultant to assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect.
12. Performance Evaluation. For any Agreement in effect for twelve months or longer, the City Manager may require a written annual administrative performance evaluation within ninety (90) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement. The work product required by this Agreement shall be utilized as the basis for review, and any comments or complaints received by City during the review period, either orally or in writing, shall be considered. City shall meet with Consultant prior to preparing the written report. If any noncompliance with the Agreement is found, City may direct Consultant to correct the inadequacies, or, in the alternative, may terminate this Agreement as provided herein.
13. Compliance with Laws. Consultant shall keep itself informed of State, Federal and Local laws, ordinances, codes and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. Consultant shall at all times comply with such laws, ordinances, codes and regulations. The City, its officers and employees shall not be liable at law or in equity occasioned by failure of Consultant to comply with this Section.
14. Licenses. At all times during the term of this Agreement, Consultant shall have in full force and effect all licenses (including a City business license) required of it by law for performance of the services hereunder.
15. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.
16. Attorney's Fees. In the event that either party to this Agreement shall commence 8 any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and costs, including costs of expert witnesses and Consultant.
17. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during Consultant regular business hours or by facsimile before or during Consultant regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section.
18. Governing Law. This Agreement shall be construed and interpreted 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 Los Angeles, State of California. However, the Parties may agree to submit any dispute to non-binding arbitration.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument.
20. Severability. If any provision or any part of any provision of this Agreement is found to be invalid or unenforceable, the balance of this Agreement shall remain in full force and effect.
21. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the Parties which expressly refers to this Agreement. Amendments on behalf of the City will only be valid if signed by the Mayor and attested by the City Clerk.
22. Authority. The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.
23. Force Majeure. A Party’s performance of any obligation under this Agreement shall be suspended if, and to the extent that, the Party is unable to perform because of any event of Force Majeure. In any such event, the Party unable to perform shall be required to resume performance of its obligations under this Agreement upon the termination of the event or cause that excused performance hereunder. “Force Majeure” 9 herein means an event which is beyond the reasonable control of a Party, including without limitation, (a) acts of God including flood, fire, earthquake, hurricane or explosion, pandemic; (b) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (c) government order or law that prevents either Party from performing its obligations as set forth in this Agreement; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) action by any governmental authority that prevents either Party from performing its obligations as set forth in this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances, other than those involving the affected parties employees; (h) shortage of adequate power or transportation facilities.
Neither Party shall be liable for any delay or default in, or failure of, performance resulting from or arising out of any Force Majeure event, and no such delay, default in, or failure of performance shall constitute a breach by either Party hereunder. Where a Force Majeure event gives rise to a failure or delay in either Party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure event. A Party who becomes aware of a Force Majeure event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will forthwith notify the other and inform the other of the period for which it is estimated that such failure or delay will continue. The affected Party shall take reasonable steps to mitigate the effects of the Force Majeure event.