City of Commerce
Request for Proposals
to Provide Professional Services for the
Pavement Management Program (PMP) Update
PROPOSALS MUST BE RECEIVED NO LATER THAN 3:00 P.M.,
AUGUST 15, 2022 AND SHALL BE SUBMITTED IN SEARCHABLE
PDF FORMAT ON PLANETBIDS
Date of Issuance: July 27, 2022
TABLE OF CONTENTS
I. PURPOSE 1
II. BACKGROUND 1
III. SCOPE OF SERVICES 1
IV. SCHEDULE 4
V. LIST OF INTERESTED PROPOSERS 5
VI. QUESTIONS 5
VII. SUBMITTAL PROCEDURES 5
VIII. SUBMITTAL FORMAT 6
IX. AGREEMENT FOR PROFESSIONAL SERVICES 7
X. GENERAL ADMINISTRATIVE INFORMATION 8
XI. SUBMITTAL DUE DATE 9
XII. SELECTION PROCESS 9
XIII. AUTHORITY TO WITHDRAW 10
XIV. AWARD OF CONTRACT 10
XV. ATTACHMENTS 10
1 I. PURPOSE
The purpose of this Request for Proposals (RFP) is to select the most-qualified Consultant to Provide Engineering Services for the Preparation of Pavement Management Program (PMP) Update. The City wishes to obtain the requested services under a Professional Services Agreement. The City will award no more than one contract on a not-to-exceed basis.
II. BACKGROUND
The City of Commerce is a General Law City, with a Council/Manager form of government.
The City of Commerce is seeking proposals from qualified vendors to provide comprehensive pavement condition survey of the City’s 69.36 centerline miles of streets of which, 17.03 are arterials, 4.42 miles are collectors, 43.03 miles are residentials and
4.88 miles are alleys. and the proposal shall include update of the City’s Pavement Management System (PMS). The last comprehensive update of the City’s PMS was completed in 2019. The 2022 update goal is to revise the PMP report with current pavement conditions, and identify the current needs of the network, perform funding analysis to establish cost-effective priorities for improvements and rehabilitation strategies, and update the City’s five-year maintenance and rehabilitation program.
III. SCOPE OF SERVICES
The City is interested in receiving proposals from qualified consulting firms to prepare Pavement Management Program (PMP) Update.
The following is a general outline of the scope of work to be provided by the Consultant.
While it is believed that this scope includes all elements essential to complete the update, proposing firms are advised to include any items that they believe may be necessary to complete the project. Proposing firms may also note any required items that they believe may be excessive or unnecessary. The cost of such items should be separately noted in their proposals. Services required to complete this update shall include:
1. Meet with City staff to finalize scope of work, establish key personnel, review project schedule and address any issues.
2. Review all maintenance and rehabilitation activities conducted by the City since the last PMP update completed in 2019. Update database to include all street segments and alleys that have been rehabilitated since the last PMP update. City staff will provide a hardcopy of list of streets and alleys rehabilitated or maintained since the last PMP update.
3. Conduct a comprehensive visual pavement condition (walking surveys) of all streets and alleys in the City (excluding private streets). These are performed with one‐person crews (for high volume streets like expressways or major arterials, two‐person crews may be needed for safety). The major advantage of this survey method is that it is more accurate than Wind Shield Surveys, since cracks and all other pavement 2 distresses are measured and recorded. Pavement condition surveys shall be performed in accordance with the established standards as identified by ASTM D‐ 6433.
The City has approximately 69.36 centerline miles of streets and alleys. The survey shall include the following information: alligator cracking, block cracking, distortions, longitudinal and transverse cracking, patching and utility cuts, rutting, depressions, weathering, and raveling.
The City uses the StreetSaver® software platform, which is a program developed by the Metropolitan Transportation Commission (MTC) and it is the most widely used PMP in California. The StreetSaver® program utilizes the pavement condition index (PCI), which was developed by the U.S. Army Corps of Engineers, which is a widely used standard in the United States and internationally.
For the PMS update, automated distress surveys and semi-automated distress surveys will be considered. This involves the utilization of video enhanced laser RST, which includes the use of lasers, video imaging and trained operator input. The survey will involve rating 100% of the roadway surface. Only one survey method shall be allowed to perform this task. The survey methods are not interchangeable. The selected consultant shall be responsible for providing all man power needed and all equipment necessary. Beside that, the consultant shall submit a Quality Control Plan and be prepared to discuss this at the pre-data collection meeting. This plan shall describe the measures used by the consultant to guarantee accuracy and repeatability.
4. Update and develop PMP to provide the following output:
a. Pavement Inventory. Inventory shall include segments of streets arranged continuously from west to east and from south to north. b. Pavement Condition Index (PCI) per segment and overall. c. Identification of all segments and Improvement Strategies for each segment.
d. Cost-Benefit Analyses to identify treatments and budget needs. e. Priority Listing.
f. GIS layer or AutoCAD based map showing PCI’s and proposed rehabitition program over the next 5 years.
5. City’s current PMP is Street Saver Online (https://www.streetsaver.com/). Consultant shall be qualified to use and update City’s Street Saver online database.
6. Prepare a Pavement Condition Report that identifies the present condition of the pavement and future performance for the next five years based on performance prediction modeling and local conditions. It shall identify the form, condition and causes of pavement failure (if possible). The report shall integrate and incorporate into its analysis the surface distress, roughness, rut, raveling condition, crack 3 condition, drainage condition, utility cuts, street sections, functional classification, ride quality, traffic volume, overall condition rating, etc.
7. Prepare a Pavement Improvement Report indicating maintenance and rehabilitation (M&R) strategies necessary to achieve the desired level of serviceability. The consultant shall recommend strategies and unit costs based on local conditions and explain advantages and disadvantages of each strategy. The report shall make provisions for simultaneously analyzing the effectiveness of numerous M&R strategies including preventive and corrective maintenance, recycling alternatives, and surface and base reconstruction.
8. Prepare a Priority Listing indicating pavements in order of best to worst PCI. In addition, the consultant shall prepare a priority listing of projects to be completed within seven years based on cost-benefit analyses of individual strategies, present pavement conditions, current traffic volumes, current funding levels, accrued backlog levels and future major and routine maintenance needs.
9. Prepare the five-year rehabilitation program to include the following:
• Each fiscal year projects of arterial streets.
• Each fiscal year projects of residential streets and alleys. It is desirable, where applicable, to identify residential streets included in one fiscal year project(s) to be located in the same neighborhood in accordance with the requirements set forth in Item 8 above.
10.Prepare an Executive Summary to include objectives for a sound PMP, field data collection techniques, data necessary to generate a reliable PMP, assessment and evaluation of results, present condition of streets and M&R strategies proposed, conclusions and recommendations. Executive summary shall include a diagraim of three scenarios considering different funding levels, proposed rehabitation program, overall PCI and backlog.
11.Provide City staff with on-site training in the operations and maintenance of PMP software. The training shall cover data collection, pavement condition surveys, computer operations, data entry/editing, PCI calculations, budget needs analyses, budget optimization analyses, report generation and database management.
12.Conduct a presentation of the results of the PMP to designated City personnel and/or elected officials.
13.PMP Update shall be complete within 90 days of the Notice to Proceed .
Task I – Meeting With City Staff:
1. Attend preliminary meeting with City staff. The purpose of this meeting is to review the technical approach, finalize scope of work, review project schedule and budget, obtain 4 list of recently completed rehabilitation projects (since the last PMP update) and address any other project related issues.
2. Review all documents provided by the City necessary to complete the work. The City will provide the following:
• Access to all available information, including street inventory, City maps, historical information, maintenance information, and historical cost information. • 2019, PMP Update
• Hard copy of list of City streets and alley segments that have been rehabilitated since the last PMP Update.
• Hosting of progress meetings.
The consultant shall be responsible to review the available information and reproduce them at no cost to the City.
Task II – Update Maintenance and Rehabilitation Activities:
1. Review recently completed maintenance and rehabilitation activities since last update in 2019.
2. Update PMP database to reflect improvements in Item 1.
Task III – Pavement Survey and Treatment Analysis:
1. Conduct comprehensive pavement condition survey of the City’s pavement network.
The City’s pavement network includes approximately 69.36centerline miles of arterial highways, streets and alleys.
2. Specify distress types for each City street segment included in the survey.
3. Select the appropriate treatment or rehabilitation strategy for each City street included in the survey.
Task IV – Budgetary Analysis and Reports:
1. Update pavement inventory on Street Saver Online database based on information obtained in TASK III.
2. Update PCI for all street segments and overall pavement network in the City.
3. Specify treatment of all segments of City streets.
4. Analyze budget scenarios and needs.
5. Prepare priority lists and a five-year maintenance and rehabilitation project list.
6. Prepare Executive Summary.
7. Prepare GIS layer or AutoCAD based map showing PCI’s and 5-year rehabilitation program.
Task V – Presentation:
1. Prepare presentation of PMP to City staff.
5 2. Prepare a 15-minute (non-technical) presentation to City Council.
IV. SCHEDULE
Deadlines
Release of Requests for Proposals July 27, 2022
Submittal of Questions August 8, 2022 by 5:00 pm
Response to Questions August 10, 2022
Proposal Due Date August 15, 2022 by 3:00 pm
Proposal Review/Evaluation August 2022
Optional Interview (if required) August 2022
Tentative City Council award September 13, 2022
Tentative Start date September 26, 2022
* These dates are anticipated and may change.
V. QUESTIONS
All questions should be submitted via PlanetBids.
VI. SUBMITTAL PROCEDURES
Submittals shall comply with all conditions, requirements and specifications contained herein, with any departure rendering the proposal non-responsive and may serve as grounds for rejection of the proposal at the City’s sole discretion.
Proposals shall be submitted in searchable pdf format on PlanetBids.
VII. SUBMITTAL FORMAT
All Respondents must submit qualifications according to the specifications set forth below.
Proposals should be prepared in such a way as to provide a straightforward, concise delineation of capabilities to satisfy the requirements of this RFP. Responses should emphasize the Respondent’s demonstrated capability to perform work of this type.
Proposals shall be valid for a minimum of 90 days following submission. The City reserves the right to request additional information that, in the City’s opinion, is necessary to ensure that the Proposer’s competence, qualified employees, business organization and financial resources are adequate for the performance of the services under this RFP.
A. WORK PROPOSAL
1. Cover Letter
6 a. Provide a cover letter including the Respondent’s name, address and telephone number of the contact person(s) who is authorized to submit the proposal on behalf of the
Respondent. The cover letter shall include a brief general statement of intent to perform the services and correspondent that all elements of the RFP have been reviewed and
understood. The letter should include a brief description of the Respondent’s Respondent. The letter should be signed by an individual who can bind the Respondent contractually. b. There shall be one person from the Respondent identified in the proposal who shall be the Respondent’s designated
representative and who is responsible for the services listed in "Section III - Scope of Services" of this RFP (“Point of Contact”).
c. If applicable, Respondent shall acknowledge receipt of any addendum to the RFP.
2. Table of Contents
a. Include a table of content identifying the contents of the proposal in a format consistent with the proposal
requirements and format set forth herein.
3. Experience and Qualifications
a. Describe the Respondent, its size and organization, the number and location of offices, and general operational structure, as well as its management and key personnel.
Provide a description of the Respondent’s Respondent, its size and organization, the number and location of offices and general operational structure. Include a discussion
demonstrating that the Respondent has the resources
(financial, equipment, labor and capacity) available to provide services under this RFP from the first day at the start of the work.
b. At a minimum, Respondent should have at least five (5) years of consecutive experience.
c. Provide at least five references that received similar services from Respondent at a minimum over the last five years.
Include name of organization, contact name, telephone
number and email address.
d. Demonstrate the qualifications of all personnel to be assigned to the City, including key personnel, by providing resumes and/or relative experience summaries describing their
education, credentials, licensing, training and related experience and their proposed roles for this contract.
e. Provide an organization chart of the proposed team, including a contingency plan should a member of the proposed team be unable to fulfill their responsibilities.
7 f. Respondent shall hold the required license(s) to perform the work and provide proof of required license for itself and its personnel.
4. Approach to Scope of Services
a. This section should set forth a comprehensive description of the approach to providing the Scope of Services and should clearly demonstrate an understanding of the City’s
requirements, the work to be done and the objectives to be accomplished.
b. Provide a description of the work plan for the services describing how each task under the Scope of Services will be accomplished. This may be used as an Exhibit for the Scope of Services to the agreement.
c. Provide any other information or tasks that Respondent believes necessary to complete the Scope of Services.
B. COST PROPOSAL
The Cost Proposal shall be submitted in a separate document.
Fee shall be provided in detail in a format to allow the City to analyze and evaluate applicable costs. Detailed breakdown shall include tasks, staff classifications, hours and fees. Consultant shall submit a not to exceed lump sum fee.
Consultant shall also provide its Schedule of Standard Hourly Fee Rates.
VIII. AGREEMENT FOR PROFESSIONAL SERVICES
The City of Commerce’s Agreement for Professional Services (Attachment 1) is included for review and comment. The Respondent’s submission of a proposal indicates Respondent’s compliance of such terms, unless the proposal indicates that compliance is not possible. Proposed revisions should be addressed in the cover letter, however, the City maintains discretion to accept or reject the Respondent’s request for revisions. The City reserves the right to make any revisions to the proposed professional services agreement.
IX. GENERAL ADMINISTRATIVE INFORMATION
All respondents are advised to become familiar with all conditions, instructions and specifications of this RFP. By submitting a proposal, Respondent represents that it has thoroughly examined and become familiar with the work required under this RFP and that the Respondent has conducted such additional investigation as it deems necessary and convenient (i.e. visiting the locations), that Respondent is capable of providing the equipment, goods and services necessary to prepare PMP update in a manner that meets the City’s objectives in this RFP. Once the contract has been made, a failure to have read the conditions or conduct any investigations of the properties shall not be cause to alter the contract or for Respondent to request additional compensation. 8 Each Respondent understands and agrees that the City, its departments, its officers, employees or agents are not responsible for:
• Any costs incurred by a Respondent in the preparation, delivery or presentation of a proposal.
• Any costs incurred by a Respondent in meeting the criteria as a result of making or submitting a proposal or subsequently in entering into a formal agreement with the City; and
• Any errors, inaccuracies or misstatements related to the information or data supplied to any contractor by the City. The use of such information or data provided by the City, its officers, employees or agents is intended to be used at the sole discretion and risk of the Respondent in the preparation of a proposal pursuant to this Request for Proposals only.
The selected Respondent shall comply with any and all Federal and State laws applicable to the services. All proposals submitted to the City of Commerce in response to this RFP shall become the property of the City and will not be returned and such proposals, after the agreement is awarded, are subject to the California Public Records Act.
The City reserves the right to accept, reject, modify or cancel in whole or in part, this RFP.
The City reserves the right to accept or reject any or all proposals, negotiate modifications to proposals that it deems acceptable, to request and consider additional information from any proposer, and to waive irregularities and technical defects in the proposal process, all in its sole discretion. The City has no obligation, express or implied, to make an award.
The City may reject proposals from Respondents who cannot satisfactorily provide the experience and qualifications required by this RFP and/or provides the scope of services required herein. The City reserves the right to seek new proposals when it determines that it is in the best interest to do so.
X. SUBMITTAL DUE DATE
The submittal package must be received prior to the submittal date specified in "Section IV - Schedule" of this RFP. Submittals submitted after the deadline will not be considered.
XI. SELECTION PROCESS
All proposals timely received shall be reviewed to verify that the proposal meets the minimum requirements and qualifications. Proposals that have not complied with requirements, do not meet minimum content and quality standards, or take unacceptable exceptions to the professional services agreement, may be eliminated from further consideration at the discretion of the City. Proposals will be reviewed and evaluated by an evaluation committee comprised of City of Commerce personnel.
The City will be the sole and exclusive judge of quality and compliance with proposal specifications in any of the matters pertaining to this RFP. The City’s final selection will not be dictated on any single factor or criteria including price. The City reserves the right to award the contract(s) in any manner it deems to be in the best interest of the City and 9 make the selection based on its sole discretion, notwithstanding the criteria set forth herein, including negotiating with one or more of the Respondents for the same services.
City will evaluate the proposals provided in response to this RFP based on the following criteria:
1. The City will evaluate Respondents based on meeting all of the City’s requirements and who offers the most advantageous combination of cost and high quality service. In addition to cost, however, the City will consider the quality of services proposed, the financial qualification of, and the work experience of the proposer in determining the best value to the City.
2. Other criteria shall include, but not be limited to:
a. Quality and completeness of proposal
b. Qualifications and experience of proposer, including experience and qualifications of key personnel and staff
c. Similar experience and expertise in the type of work required, with the City or with other public agencies
d. Demonstrated understanding of the scope of services requested as well as capacity of respondent
e. References
f. Financial stability of proposer
g. Cost to the City
h. Oral interviews, if applicable.
i. Any other factors determined by the City to be relevant to the performance of these services.
XII. AUTHORITY TO WITHDRAW
The City of Commerce reserves the right to withdraw this RFP without prior notice. The City of Commerce makes no representation that any agreement will be awarded to any Respondent as a result of having responded to this request. All proposals submitted to the City of Commerce in response to this RFP shall become the property of the City and will not be returned.
XIII. AWARD OF CONTRACT
Based on the outcome of the evaluation committee’s evaluation of the proposals, a recommendation will be submitted to the City Council for consideration of award. An award of a contract occurs when the contract is approved by the Commerce City Council.
Selection of a respondent with whom the City enters into contract negotiations with or a recommendation of an award by the evaluation committee or any other party, does not constitute an award of a contract. The contract shall be in accordance with the attached Agreement.
XIV. ATTACHMENTS
Attachment 1. Form Professional Services Agreement
10 C-1
ATTACHMENT 1
Form Professional Services Agreement
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_______________ (“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 [insert brief description of work] 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 [Insert month and date], [Insert year] (the “Commencement Date”) and shall remain and continue in effect until tasks described in Exhibit A are completed, but in no event later than [Insert Date], 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 ______________________________.
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, 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 2 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
Company
[Insert Selected Consulting Firm]
Attn: [Insert Contact Name]
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: ______________________________ ______________________ Hugo A. Argumedo, Mayor Date
CONSULTANT
[Insert Consultant Name]
By: _______________________________ ________________________ [Insert Consultant Name] Date
ATTEST:
By: ______________________________ ________________________ Lena Shumway, City Clerk Date
APPROVED AS TO FORM:
By: ______________________________ ________________________ Noel Tapia, City Attorney Date
1 EXHIBIT A
SCOPE OF WORK
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.