Cudahy City Council
October 4, 2022

1 City of Cudahy
5220 Santa Ana, Cudahy, California 90201
(323) 773-5143 Fax (323) 771-2072
July 28, 2022
On Call Design Engineering Services
for Capital Improvement Projects and Community
Development Block Grant Projects
I. INTRODUCTION
The City of Cudahy (“City”) is requesting proposals for On-Call Design Engineering Services for Capital Improvement Projects (CIP) managed by the City’s Public Works/Engineering Department, and Community Development Block Grant (CDBG) Projects managed by the City’s CDBG Department. The selected firm will coordinate with the City to develop conceptual and final project designs, engineering documents, develop construction documents, assist with bid documents, as well as provide as needed project management services on an on call basis. The scope of work, proposal format, submittal guidelines, and evaluation and selection process are described in this Request for Proposal (“RFP”).

II. BACKGROUND
Cudahy is located in Southeast Los Angeles County, next to the L.A. River. The City was incorporated on November 10, 1960 and named after its founder, meat-packing baron Michael Cudahy, who purchased the land known as Rancho San Antonio in 1908 for development. Cudahy is 1.1 square miles with a current population of 23,805. The City is a general law city and operates under the council-manager form of government.

It is anticipated that the consultant will enter into a professional services agreement with the City of Cudahy. The length of the agreement will be for three-year term with an option to extend two one-year terms.

III. SCOPE OF WORK
The following is a general outline of the scope of work to be provided by the consultant.

While it is intended that the following scope of work include all elements essential to develop the project, those submitting proposals are advised to perform their own field reconnaissance and include any items which they feel have been overlooked. The description and cost of such items should be noted and outlined separately in the proposal. Services required to complete this project by the consultant shall include:

2 Task 1 – Project Planning and Design Review
• Develop an understanding of project.
• Develop conceptual design and complete final design and engineering documents; City staff are flexible for recommendations and alternatives. • Conduct a detailed review of available plans. Perform additional investigations including field investigations as may be required to determine existing conditions. • Conduct a Kick-off meeting and subsequent meetings with City Staff. • Provide a schedule and timeline showing activity and duration for each task that might be assigned; show approximate timing for reaching milestones that would be typical of civil, structural engineering for the project. • Utility Research – Consultant shall conduct thorough research to obtain all available utility documents within the project area. Consultant shall be responsible for researching all applicable agency and utility company records.

Consultant shall conduct field research to collect visible information of project sites. Consultant shall be responsible for preparing a complete list of all underground utilities and facilities in the area.

Task 2 – Site Assessment and Design
• Coordinate with City staff and analyze site conditions and determine specific site requirements needed to provide improvements and compliance with Federal, State, Local laws, ordinances and codes
• Verify utility constrain, maintenance options and provide recommendations to the City.
• Prepare conceptual plans and material boards.
• Prepare presentations for and participate in Public Meetings of relevant government bodies.
• Prepare an accurate cost estimate.
• Identify long lead items.
• Provide cost saving alternatives for the City to consider.

Task 3 – Construction Documents (50%, 90% and Finals)
• Prepare final construction documents for construction bid. The plans and specifications to comply with all adopted Federal, State, Local laws, ordinances and codes.
• City will require one original copy of the final bid document package and two copies in electronic format (Word and PDF). Consultant will also provide a final set of Mylars wet stamp.

Task 4 – As Needed Construction Support Services
• Consultant shall provide bid assistance to include answering questions from prospective bidder’s participation in bidder conference, bid analysis to determine the lowest bidder and participation in a preconstruction meeting.

3 • Provide construction observation and support services during construction including but not limited to:
o Scheduling
o Periodic job site visits of construction activities
o Attend to weekly construction coordination meetings
o Submittal and shop drawing review
o Assist City in change order review and negotiations
o Production of as-built drawings
o Responding to Request for Information (RFI) on the design plans or in the special provisions.
(Note: Consultant shall be required to provide responses to contractors’ inquiries clarifying any errors, discrepancies, missing information, and oversights in the PS&E during the construction period at no cost to the City. This may involve revising the plans and specifications as necessary to appropriately respond to the inquiries. Consultant shall provide responses within two 24 hours or 48 hours if additional engineering is required after receiving the initial inquiry.)
IV. PROPOSAL SCHEDULE
RFP ISSUED July 28, 2022

DEADLINE TO SUBMIT QUESTIONS

PROPOSAL DUE DATE
August 8, 2022
August 18, 2022
at 3:00 PM
PROPOSALS ARE EVALUATED August 24, 2022 –
August 29, 2022

NOTIFICATION OF TOP RANKED CONSULTANTS FOR

ORAL INTERVIEW
(If applicable)
August 29, 2022

EVALUATION COMMITTEE INTERVIEWS OF TOP

RANKED CONSULTANTS
(If applicable)
August 30 - 31, 2022
NOTIFICATION TO PREFERRED CONSULTANT September 8, 2022
IV. GENERAL INFORMATION
The City seeks proposals from outside firms to provide on call design engineering services for CIP and CDBG projects (“Project’). The City will select one qualifying firm to provide the services as defined in the Scope of Services section of this RFP.

4 A. Period of Performance – The City desires to award a contract with a term of three (3) years and with the ability to extend the term of the agreement for a maximum of two (2) one-year extensions in the sole and absolute discretion of the City based on a multiplicity of factors, including but not limited to performance. City also requires that any agreement be structured in a manner so as to permit City to terminate the agreement prior to the expiration of the three-year initial term or any extension term to respond to changing economic conditions, changes in the law and/or judicial interpretations of the law which may impact the City’s ability to contract-out such services.

B. Proposal Validity – The Proposer’s pricing shall be valid for a minimum of 90 days.

C. Request for Information – Questions regarding this RFP are for clarification purposes only and are to be directed by e-mail to: Aaron Hernandez-Torres, Public Works Director, at [email protected]. The deadline to submit questions will be August 8, 2022.

D. Submission Deadline – Proposals must be received, in a sealed envelope with the words “Request for Proposal – Design Engineering Services” clearly labeled along with the name and address of the firm, by the Office of the City Clerk by 3:00 pm on August 18, 2022. The submitted packet shall include three (3) copies of the proposal.

E. Late Submittals – It is strongly recommended that proposals be delivered inperson or via personal courier by or before the submission deadline.

Proposals received after the specified submission deadline will be disqualified and not considered. Proposals postmarked prior to the applicable deadline date but received after the deadline will also be disqualified and not considered. Proposers are responsible to ensure the timely submission of their proposal. Proposals may not be submitted by via facsimile or electronic mail.

F. Withdrawal or Modifications – A proposal may be withdrawn or changed by a written and signed request by the firm prior to the final deadline. If firms do not make this request before the final deadline, the firm shall be obligated to fulfill the terms of their proposal as submitted. In the event a proposer seeks to withdraw and modify a proposal, the modified proposal must be submitted before the applicable submission deadline.

G. Addenda – In the event that any portion of this RFP is changed, the City will provide addenda via fax or e-mail to all firms who have received an RFP. The signed addenda must be included with the RFP submittal. Submittals received without the applicable addenda may be rejected as incomplete.

5 H. Responsiveness – All submittals will be reviewed by the City to determine compliance with all requirements and instructions as specified in the RFP.

Firms are notified that failure to comply with any part of the RFP may result in the rejection of the submittal as non-responsive.

The City also reserves the right, at its sole and absolute discretion to waive minor administrative irregularities or errors.

I. Costs – The City will not be liable for any costs incurred by the Proposer in preparing and responding to this RFP. The Proposer shall not include any pre-contractual expenses as part of the proposed cost.

J. Legal Authorization – All forms and documentation included in this RFP must be signed and dated by a person authorized to legally bind the Proposer to a contractual relationship with the City.

K. Conflict of Interest – Proposer is required to issue a brief statement disclosing potentially conflicting interests including:
a. Any litigation involving the Proposer or the Proposer’s personnel which is adverse to the City; and
b. Consulting services currently being provided or provided within the last four years to any person, corporation, partnership, or other entity that made application to the City for a discretionary land use entitlement or City project.

L. Rejection of Submittals – The City reserves the right at its sole discretion to reject any and all submittals received without penalty as result of this RFP. a. A proposal may be immediately rejected if:
i. It contains misrepresentative or misleading information; ii. It is received at any time after the exact date and time set for receipt of proposals;
iii. It does not meet the required specifications or terms and conditions as prescribed;
iv. It is not prepared in the format outlined in this RFP; v. It is signed by an individual not authorized to represent the Proposer; vi. Proposer is involved in outstanding litigation that could impinge on its ability to complete the responsibilities and obligations of the proposal;

6 vii. Any other reason in the City’s sole and absolute discretion.

M. No Guarantee of Contract – No guarantee is made that any contract will be awarded in response to this RFP.

N. Insurance Coverage – If a Proposer is selected, all insurance documentation will be provided to the City prior to the execution of a contract at the expense of the Proposer. All insurance requirements are included as a provision of the contract.

O. Sub-consultants – Proposer shall identify any sub-consultants and describe the responsibilities that will be assigned to them. The same level of references and background information required for Proposers shall be required of sub-consultants.

P. Acceptance of Conditions – Proposer shall include a statement offering the acceptance of all conditions listed in the RFP document (including, but not limited to, all the conditions reflected in the sample Professional Services Agreement) which shall be submitted with the proposal.

Q. Public Record – All proposals submitted in response to this RFP will become the property of the City upon submission and a matter of public record pursuant to applicable law. City reserves the right to make copies of all proposals available for inspection and copying by interested members of the public as records of the City and City shall be under no obligation to the Proposer to withhold such records. In so far as a proposal contains information that the Proposer regards as proprietary and confidential, it shall be the responsibility of the Proposer (and not the City) to specifically identify which items of information are proprietary and clearly identify in writing which specific pieces of information are proprietary. It shall be insufficient for the Proposer to merely identify the entire proposal or an entire page or set of pages of proprietary. With respect to information deemed proprietary, the procedures set forth under subsection (T) below shall be observed. Not-to-exceed sums, hourly rates and the like that may be set forth in a proposal shall not constitute proprietary information nor shall any information readily available to the general public or any other information not regarded as proprietary and confidential under federal or state law.

R. Right to Request Additional Information – During the evaluation process the City reserves the right, where it may serve the City’s best interest, to request additional information or clarifications from Proposers, or to allow corrections of errors or omissions. At the discretion of the City, firms submitting proposals may be requested to make oral presentations as part of the evaluation process.

7 S. Additional Services – The Scope of Work describes the minimum baseline level of services required for the services contemplated under this RFP, however, cost-effective proposals that exceed the minimum levels of service are welcome. Upon final selection of the firm, the Scope of Work may be modified and refined during negotiations with the City to account for the performance of services that exceed the baseline level called for under this RFP.

T. Conflict of Interest - By signing the Agreement, the successful Proposer declares and warrants that no elected or appointed official, officer or employee of the City has been or shall be compensated, directly or indirectly, in connection with the award of the Agreement or any work for the proposed project. For the term of the Agreement, no elected or appointed official, officer or employee of the City, during the term of his/her service with the City and for two (2) years following his/her termination of office or employment with the City, shall have any direct interest in the Agreement, or obtain any present, anticipated or future material benefit arising therefrom.

U. Confidential Information - City reserves the right to make copies of a Proposer’s proposal available for inspection and copying by members of the public, (including proposals which may contain information the Proposer regards as proprietary in nature), unless the City’s legal counsel determines that the information which the Proposer regards as proprietary may be withheld pursuant to applicable provisions of the California Public Records Act (Govt. Code Section 6250 et seq.) or other applicable state or federal law. In the event City proposes to disclose records containing information the Proposer has specifically identified as being proprietary and confidential, City shall notify the Proposer in writing of its intent to release such information and the Proposer shall have five (5) working days after City’s issuance of its notice to give City written notice of Proposer’s objection to the City’s release of proprietary information. City will not release the proprietary information after receipt of the objection notice from the Proposer unless: (i) the objection notice is not received by the City until after the close of business on the 5th day following City’s issuance of the notice of intent to disclose; (iii) ordered to release the information by a court of competent jurisdiction; or (iii) the Proposer’s objection notice fails to include a fully executed indemnification agreement wherein the Proposer agrees indemnify, defend and hold harmless the City, and its elected and appointed officials, officers, directors, employees and agents from and against all liability, loss, cost or expense (including attorneys’ fees) arising out of any legal action brought to compel the release of records containing the proprietary information which the Proposer wishes to withhold. Again, the Proposer must specifically identify the information it deems proprietary.

8 V. TERMS AND CONDITIONS
A. Certification
By submitting a proposal, Proposer certifies that it has fully read and understands this RFP and has full knowledge of the nature, scope and scale of services and tasks that are to be performed under this RFP. Proposer also certifies that its proposal was prepared without prior understanding, agreement or connection with any other Proposer submitting a proposal from this RFP, and is in all respects fair and without collusion or fraud, so that all proposals will result from free, open and competitive proposing among all Proposers.

B. Reserving Rights
The City reserves the right to reject any and all proposals received as a result of this RFP. City’s potential award of a contract will not be based on any single factor nor will it be based solely or exclusively on the lowest cost proposal. If a contract is awarded, it will be awarded to the proposer who in the judgment of the City has presented an optimal balance of relevant experience, technical expertise, technological innovation, price, quality of service, work history and other factors which the City may consider relevant and important in determining which proposal is best for the City.

C. Assignment and Guarantee
No assignment by the Proposer of the contract or any part thereof, or of funds to be received hereunder, is binding unless the City has given written consent before such assignment. There is also no guarantee of a minimal amount of work or compensation for any Proposer selected for contract negotiations.

D. Financial Responsibility for Proposal Costs
The City accepts no financial responsibility for any costs incurred by the Proposer in responding to this RFP. Proposals will become the property of the City and may be used by the City in any way deemed appropriate.

Received proposals will not be returned to the Proposer.

E. Clarification
Should discrepancies or omissions be found in this RFP or should there be a need to clarify this RFP, questions or comments should be emailed to Aaron Hernandez-Torres, at [email protected]. The City shall not be responsible for, nor be bound by, any oral instructions, interpretations or explanations issued by the City.

F. Discrimination
The Proposer and all subcontractors must not discriminate, nor permit discrimination against any person on the grounds of race, national origin, sex, handicap, sexual orientation, or veteran status in their employment practices,

9 in any of their contractual arrangements, in all services and accommodations they offer the public or in their business operations.

G. Indemnification
Proposer, at its own expense and without exception, shall indemnify, defend and pay all damages, costs, expenses, including attorney fees, and otherwise hold harmless the City, its employees and agents from any liability of any nature or kind in regard to the preparation or presentation of a proposal in response to this RFP.

H. Gratuity Prohibition
Proposer shall not offer any gratuities, favors or anything of monetary value to any official, employee or agent of the City for the purpose of influencing consideration of this proposal.

VI. PROPOSAL CONTENT
The RFP must provide information in the same order as presented in this document.

A. General Overview/Cover Letter – Introduction of the firm including a general description of the firm’s qualifications and experience, with emphasis on previous projects similar to the one proposed here. Along with introductory remarks, the proposal shall include the following information:
a. Name, address, principal place of business, telephone number, and fax number/e-mail address of legal entity with which contract would be written. b. Name, title, address, e-mail address, and telephone number of each principal officer.
c. Legal status of the firm (partnership, corporation, etc.) and the year the entity was organized to do business as the entity now substantially exists. d. Documentation on the financial status of the firm to ensure the firm will continue in business through the contract period and finance the costs of adequate personnel and other support requirements.

B. Organizational Information – Proposer will include an organizational chart, resumes, and certifications for the firm that clearly demonstrates their abilities, skill level, and experience to accomplish the required tasks.

C. Previous Experience – Proposer will provide a minimum of five (5) examples of comparable work in the last five years which best demonstrates the qualifications and ability of the proposed team to accomplish the work as outlined in the Scope of Services section of this RFP. A minimum of three (3)

10 references and maximum of five (5) references shall be provided. Information submitted shall include the name of the client with current address, telephone number, e-mail address, and contact person for each reference. The City reserves the right to contact any of the listed references at any time and make any other reasonable investigation into the consultant’s background and experience.

D. Procedures and Methodology – The Proposer should demonstrate their understanding of the needs of the City and the objectives of the work proposed. Proposal shall provide a detailed description of the firm’s proposed approach demonstrating how the objectives will be accomplished as outlined in the Scope of Work.

E. Proposed Staffing and Project Team - This section should establish qualifications and experience of staff that will be assigned to the City. Also, identify key personnel to be assigned and their qualifications and experience (detailed).

F. Other Information to Include
• Education, experience, applicable professional credentials of project staff that will be assigned to City
• Provide the identity of key personnel proposed: person’s name, current location, proposed position, current assignment, level of commitment, and how long each person has been with the firm
• A statement that key personnel will be available for the duration of the scope of services and acknowledgement that no person designated as key personnel shall be removed or replaced without the prior written notification to the City.
• It is important that key personnel proposed have the background, experience and qualifications to properly perform the work detailed in the scope of services
G. Insurance - Provide a copy of the firm’s current insurance certificates.

H. Fee - Proposal Sheet with hourly rates of all staff levels anticipated to match the scope of services. Scope of Services broken into task and work to be completed as part of each task including a timeline.

I. Compensation Plan – Consultant shall perform the various services and tasks set forth in the Scope of Work in accordance with the work schedule which will be mutually determined for each project between the Consultant and City staff. Compensation will be paid to the consultant in monthly increments as the Work is completed.

11 J. Quality Control – The Proposer shall describe the firm’s policies and procedures for assuring high quality work, including monitoring of any proposed sub-contracts.

VII. EVALUATION PROCEDURES
A. Selection Committee
Proposals submitted will be evaluated by City staff, which shall be selected by the City Manager.

B. Review of Proposals
City staff will use a point formula during the review process to individually score Proposals, as outlined in Section C below, “Proposal Evaluation Criteria.” City staff will then be convened to review and discuss the evaluations and combine the individual scores to arrive at an average composite score for each firm. Firms that do not meet the “Mandatory Elements” listed in Section C1 below will be eliminated from further consideration.

After the composite Project Proposal score for each firm has been established based upon the “Qualitative Evaluation” criteria listed in C2, the firms with the three (3) highest score may be recommended by the Public Works Director to participate in an oral presentation/interview with the Selection Committee as outlined below.

C. Project Proposal Evaluation Criteria
Proposals will be evaluated using two (2) sets of criteria. Firms meeting the mandatory elements will have their proposals evaluated and scored. The following represent the principal selection criteria which will be considered during the evaluation process. City reserves the right to select any firm that submits a complete and timely proposal notwithstanding the firms overall score in relation to other firms.

1. Mandatory Elements
a. The firm is an independent contractor properly licensed to practice in California.
b. The firm has no conflict of interest with regard to any other work performed by the firm for the City.
c. The firm adheres to the instructions in this RFP on preparing and submitting the proposal.

2. Qualitative Evaluation (Maximum Point = 100)

12 a. Experience and Performance (50 Points):
i. The firm’s past experience and performance on specific government engagements (i.e. references).
ii. Distinguishing features, skill and/or services (These may include demonstrated experience of the assigned staff to the project). iii. Firm’s statement on why it believes itself to be best qualified (cover letter).
b. Ability to complete work in a timely manner and references (25 points) c. Cost/Value to City (and/or applicants) (25 points)
i. Reasonable rate for Project services
ii. Ability to stay within budget.

3. Oral presentation/interview (At the option of the City) The Proposers with the three highest combined scores should expect to be interviewed by the City staff on the date listed in the RFP. Upon completion of the interviews and negotiation of compensation, and/or terms and conditions a contract shall be prepared and submitted to the City Council for approval.

VIII. PROPOSAL SUBMITTAL
Three (3) hard copies of the proposal shall be presented in an envelope or package.

Hard copies should be bound and include the name of the Proposer and the title “City of Cudahy Design Engineering Services RFP.” The envelope of package shall bear the name, address, and telephone number of the individual or entity submitting the proposal and shall be addressed as follows:

Office of the City Clerk
City of Cudahy
5220 Santa Ana Street
Cudahy, CA 90201
Proposals can be hand delivered or mailed to the address listed above. Proposals will not be accepted by fax or e-mail.

The proposal shall be delivered to the above address on or before 3:00 P.M. on August 18, 2022.

13 X. STAFF CONTACT
For inquiries, please contact Aaron Hernandez-Torres at (323) 773-5143 or email at [email protected]
Issued by:

CITY OF CUDAHY
Public Works Department
____________________________
Aaron Hernandez-Torres P.E.

Public Works Director/City Engineer

APPENDIX A

SAMPLE CONTRACT

PROFESSIONAL SERVICES AGREEMENT
([Replace w/ Name of Consultant - Replace w/ Brief Description of Engagement] ) THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this ___________day of _________________ 20______ (hereinafter, the “Effective Date”), by and between the CITY OF CUDAHY, a municipal corporation (“CITY”) and [____REPLACE WITH NAME OF CONSULTANT____], a [___REPLACE WITH TYPE OF ENTITY, E.G., CORPORATION? PARTNERSHIP? SOLE PROPRIETORSHIP? ETC.____] (hereinafter, “CONSULTANT”). For the purposes of this Agreement CITY and CONSULTANT may be referred to collectively by the capitalized term “Parties.” The capitalized term “Party” may refer to CITY or CONSULTANT interchangeably.

WHEREAS, CITY wishes to engage CONSULTANT to provide the following specialized services:__________________________; and
WHEREAS, CITY’s in-house personnel is presently unable to perform the specialized services and tasks contemplated under this Agreement; and WHEREAS, CONSULTANT possesses the specialized training, skill, expertise and experience required to perform the services contemplated under this Agreement; and WHEREAS, CONSULTANT agrees to perform the various services and tasks set forth under this Agreement subject to the terms and conditions set forth herein; and NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY and CONSULTANT agree as follows:

I.

ENGAGEMENT TERMS

1.1 SCOPE OF SERVICES: Subject to the terms and conditions set forth in this Agreement and all exhibits attached and incorporated hereto, CONSULTANT agrees to perform the services and tasks set forth in Exhibit “A” (hereinafter referred to as the “Scope of Services”). CONSULTANT further agrees to furnish to CITY all labor, materials, tools, supplies, equipment, services, tasks and incidental and customary work necessary to competently perform and timely complete the services and tasks set forth in the Scope of Services. For the purposes of this Agreement the aforementioned services and tasks set forth in

the Scope of Services shall hereinafter be referred to generally by the capitalized term “Work.”

1.2 TERM: This Agreement shall have a term of [___REPLACE TEXT WITH TERM PERIOD: X# of DAYS? MONTHS? YEARS?] commencing from [_REPLACE TEXT WITH START DATE OF TERM: CAN BE EITHER the “EFFECTIVE DATE”? SOME OTHER DATE?]. [OPTIONAL LANGUAGE: Upon the
conclusion of the Term, this Agreement shall renew automatically for a maximum of [_MAXIMUM NUMBER OF EXTENSION TERMS AND MAXIMUM DURATION OF EACH SUCH EXTENSION TERM. EDITOR’S NOTE: IT IS

RECOMMENDED THAT ANY INDIVIDUAL EXTENSION TERM NOT EXCEED

ONE YEAR IN DURATION AND THAT THE TOTAL NUMBER OF EXTENSION

TERMS NOT EXCEED A MAXIMUM OF TWO YEARS BEYOND THE END OF THE INITIAL TERM] …….., unless CITY issues written notice of its intent not to authorize an additional extension term(s). Nothing in this Section shall operate to prohibit or otherwise restrict the CITY’s ability to terminate this Agreement at any time for convenience or for cause.

1.3 COMPENSATION:

A. CONSULTANT shall perform the various services and tasks set forth in the Scope of Services in accordance with the compensation schedule which is [_____THIS LANGUAGE MAY VARY DEPENDING ON THE LOCATION OF ANY APPLICABLE COMPENSATION SCHEDULE – SOME SCHEDULES

ARE EMBEDDED IN THE SCOPE OF SERVICES WHILE OTHERS CAN BE

FOUND IN A SEPARATE STAND-ALONE SCHEDULE WHICH SHOULD BE ATTACHED AS AN EXHIBIT TO THE AGREEMENT______] (hereinafter, the “Approved Rate Schedule”).

B. Section 1.3(A) notwithstanding, CONSULTANT’s total compensation during the Term of this Agreement or any extension term shall not exceed the budgeted aggregate sum of [___REPLACE WITH NOT-TO-EXCEED SUM____] (hereinafter, the “Not-to-Exceed Sum”), unless such added expenditure is first approved by the CITY acting in consultation with the Superintendent and the Director of Fiscal Services. In the event CONSULTANT’s charges are projected to exceed the Not-to-Exceed Sum prior to the expiration of the Term or any single extension term, CITY may suspend CONSULTANT’s performance pending CITY approval of any anticipated expenditures in excess of the Not-to-Exceed Sum or any other CITY-approved amendment to the compensation terms of this Agreement.

1.4 PAYMENT OF COMPENSATION: Reserved; No text.

1.5 ACCOUNTING RECORDS: CONSULTANT shall maintain complete and accurate records with respect to all matters covered under this Agreement for a period of three (3) years after the expiration or termination of this Agreement.

CITY shall have the right to access and examine such records, without charge, during normal business hours. CITY shall further have the right to audit such records, to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.

1.6 ABANDONMENT BY CONSULTANT: In the event CONSULTANT ceases to perform the Work agreed to under this Agreement or otherwise abandons the undertaking contemplated herein prior to the expiration of this Agreement or prior to completion of any or all tasks set forth in the Scope of Services, CONSULTANT shall deliver to CITY immediately and without delay, all materials, records and other work product prepared or obtained by CONSULTANT in the performance of this Agreement. Furthermore, CONSULTANT shall only be compensated for the reasonable value of the services, tasks and other work performed up to the time of cessation or abandonment, less a deduction for any damages, costs or additional expenses which CITY may incur as a result of CONSULTANT’s cessation or abandonment.

II.

PERFORMANCE OF AGREEMENT

2.1 CITY’S REPRESENTATIVES: The CITY hereby designates the Superintendent and [____REPLACE WITH TITLE OF CITY REPRESENTATIVE WHO WILL BE

ENGAGED IN THE DAY-TO-DAY ADMINISTRATION OF THE
CONTRACT_______] (hereinafter, the “CITY Representatives”) to act as its representatives for the performance of this Agreement. The Superintendent shall be the chief CITY Representative. The CITY Representatives or their designee shall act on behalf of the CITY for all purposes under this Agreement.

CONSULTANT shall not accept directions or orders from any person other than the CITY Representatives or their designee.

2.2 CONSULTANT REPRESENTATIVE: CONSULTANT hereby designates [__INSERT NAME AND TITLE OF PERSON WHO IS CONSULTANT

REPRESENTATIVE FOR PURPOSES OF CONTRACT
ADMINISTRATION________] to act as its representative for the performance of this Agreement (hereinafter, “CONSULTANT Representative”). CONSULTANT Representative shall have full authority to represent and act on behalf of the CONSULTANT for all purposes under this Agreement. CONSULTANT Representative or his designee shall supervise and direct the performance of the Work, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Agreement. Notice to the CONSULTANT Representative shall constitute notice to CONSULTANT.

2.3 COORDINATION OF SERVICE; CONFORMANCE WITH REQUIREMENTS:

CONSULTANT agrees to work closely with CITY staff in the performance of the Work and this Agreement and shall be available to CITY staff and the CITY

Representatives at all reasonable times. All work prepared by CONSULTANT shall be subject to inspection and approval by CITY Representatives or their designees.

2.4 STANDARD OF CARE; PERFORMANCE OF EMPLOYEES: CONSULTANT represents, acknowledges and agrees to the following:

A. CONSULTANT shall perform all Work skillfully, competently and to the highest standards of CONSULTANT’s profession;
B. CONSULTANT shall perform all Work in a manner reasonably satisfactory to the CITY;
C. CONSULTANT shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.);
D. CONSULTANT understands the nature and scope of the Work to be performed under this Agreement as well as any and all schedules of performance;
E. All of CONSULTANT’s employees and agents possess sufficient skill, knowledge, training and experience to perform those services and tasks assigned to them by CONSULTANT; and
F. All of CONSULTANT’s employees and agents (including but not limited subcontractors and subconsultants) possess all licenses, permits, certificates, qualifications and approvals of whatever nature that are legally required to perform the tasks and services contemplated under this Agreement and all such licenses, permits, certificates, qualifications and approvals shall be maintained throughout the term of this Agreement and made available to CITY for copying and inspection.

The Parties acknowledge and agree that CONSULTANT shall perform, at CONSULTANT’s own cost and expense and without any reimbursement from CITY, any services necessary to correct any errors or omissions caused by CONSULTANT’s failure to comply with the standard of care set forth under this Section or by any like failure on the part of CONSULTANT’s employees, agents, contractors, subcontractors and subconsultants. Such effort by CONSULTANT to correct any errors or omissions shall be commenced immediately upon their discovery by either Party and shall be completed within seven (7) calendars days from the date of discovery or such other extended period of time authorized by the CITY Representatives in writing and in their sole and absolute discretion.

The Parties acknowledge and agree that CITY’s acceptance of any work

performed by CONSULTANT or on CONSULTANT’s behalf shall not constitute a release of any deficiency or delay in performance. The Parties further acknowledge, understand and agree that CITY has relied upon the foregoing representations of CONSULTANT, including but not limited to the representation that CONSULTANT possesses the skills, training, knowledge and experience necessary to perform the Work skillfully, competently and to the highest standards of CONSULTANT’s profession.

2.5 ASSIGNMENT: The skills, training, knowledge and experience of CONSULTANT are material to CITY’s willingness to enter into this Agreement. Accordingly, CITY has an interest in the qualifications and capabilities of the person(s) who will perform the services and tasks to be undertaken by CONSULTANT or on behalf of CONSULTANT in the performance of this Agreement. In recognition of this interest, CONSULTANT agrees that it shall not assign or transfer, either directly or indirectly or by operation of law, this Agreement or the performance of any of CONSULTANT’s duties or obligations under this Agreement without the prior written consent of the CITY. In the absence of CITY’s prior written consent, any attempted assignment or transfer shall be ineffective, null and void and shall constitute a material breach of this Agreement.

2.6 CONTROL AND PAYMENT OF SUBORDINATES; INDEPENDENT
CONTRACTOR: The Work shall be performed by CONSULTANT or under CONSULTANT’s strict supervision. CONSULTANT will determine the means, methods and details of performing the Work subject to the requirements of this Agreement. CITY retains CONSULTANT on an independent contractor basis and not as an employee. CONSULTANT reserves the right to perform similar or different services for other principals during the term of this Agreement, provided such work does not unduly interfere with CONSULTANT’s competent and timely performance of the Work contemplated under this Agreement and provided the performance of such services does not result in the unauthorized disclosure of CITY’s confidential or proprietary information. Any additional personnel performing the Work under this Agreement on behalf of CONSULTANT are not employees of CITY and shall at all times be under CONSULTANT’s exclusive direction and control. CONSULTANT shall pay all wages, salaries and other amounts due such personnel and shall assume responsibility for all benefits, payroll taxes, Social Security and Medicare payments and the like.

CONSULTANT shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: Social Security taxes, income tax withholding, unemployment insurance, disability insurance, workers’ compensation insurance and the like.

2.7 REMOVAL OF EMPLOYEES OR AGENTS: If any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants is determined by the CITY Representatives to be uncooperative, incompetent, a threat to the adequate or timely performance of the tasks assigned to CONSULTANT, a threat to persons or property, or if any of CONSULTANT’s officers, employees, agents,

contractors, subcontractors or subconsultants fail or refuse to perform the Work in a manner acceptable to the CITY, such officer, employee, agent, contractor, subcontractor or subconsultant shall be promptly removed by CONSULTANT and shall not be re-assigned to perform any of the Work.

2.8 COMPLIANCE WITH LAWS: CONSULTANT shall keep itself informed of and in compliance with all applicable federal, State or local laws to the extent such laws control or otherwise govern the performance of the Work. CONSULTANT’s compliance with applicable laws shall include without limitation compliance with all applicable Cal/OSHA requirements.

2.9 NON-DISCRIMINATION: In the performance of this Agreement, CONSULTANT shall not discriminate against any employee, subcontractor, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition.

2.10 INDEPENDENT CONTRACTOR STATUS: The Parties acknowledge, understand and agree that CONSULTANT and all persons retained or employed by CONSULTANT are, and shall at all times remain, wholly independent contractors and are not officials, officers, employees, departments or subdivisions of CITY. CONSULTANT shall be solely responsible for the negligent acts and/or omissions of its employees, agents, contractors, subcontractors and subconsultants. CONSULTANT and all persons retained or employed by CONSULTANT shall have no authority, express or implied, to bind CITY in any manner, nor to incur any obligation, debt or liability of any kind on behalf of, or against, CITY, whether by contract or otherwise, unless such authority is expressly conferred to CONSULTANT under this Agreement or is otherwise expressly conferred by CITY in writing.

III.

INSURANCE

3.1 DUTY TO PROCURE AND MAINTAIN INSURANCE: Prior to the beginning of and throughout the duration of the Work, CONSULTANT will procure and maintain polices of insurance that meet the requirements and specifications set forth under this Article. CONSULTANT shall procure and maintain the following insurance coverage, at its own expense:

A. Commercial General Liability Insurance: CONSULTANT shall procure and maintain Commercial General Liability Insurance (“CGL Coverage”) as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) or its equivalent. Such CGL Coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the general aggregate

for bodily injury, personal injury, property damage, operations, products and completed operations, and contractual liability.

B. Automobile Liability Insurance: CONSULTANT shall procure and maintain Automobile Liability Insurance as broad as Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). Such Automobile Liability Insurance shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per accident for bodily injury and property damage.

C. Workers’ Compensation Insurance/ Employer’s Liability Insurance: A policy of workers’ compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both CONSULTANT and CITY against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by CONSULTANT in the course of carrying out the Work contemplated in this Agreement.

D. Errors & Omissions Insurance: For the full term of this Agreement and for a period of three (3) years thereafter, CONSULTANT shall procure and maintain Errors and Omissions Liability Insurance appropriate to CONSULTANT’s profession. Such coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per occurrence and shall be endorsed to include contractual liability.

3.2 ADDITIONAL INSURED REQUIREMENTS: The CGL Coverage and the Automobile Liability Insurance shall contain an endorsement naming the CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers as additional insureds.

3.3 REQUIRED CARRIER RATING: All varieties of insurance required under this Agreement shall be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance shall be procured from insurers who, according to the latest edition of the Best’s Insurance Guide, have an A.M. Best’s rating of no less than A:VII. CITY may also accept policies procured by insurance carriers with a Standard & Poor’s rating of no less than BBB according to the latest published edition the Standard & Poor’s rating guide.

As to Workers’ Compensation Insurance/ Employer’s Liability Insurance, the CITY Representatives are authorized to authorize lower ratings than those set forth in this Section.

3.4 PRIMACY OF CONSULTANT’S INSURANCE: All polices of insurance provided by CONSULTANT shall be primary to any coverage available to CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers. Any insurance or self-insurance maintained by CITY or CITY’s elected or appointed

officials, officers, employees, agents or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.

3.5 WAIVER OF SUBROGATION: All insurance coverage provided pursuant to this Agreement shall not prohibit CONSULTANT or CONSULTANT’s officers, employees, agents, subcontractors or subconsultants from waiving the right of subrogation prior to a loss. CONSULTANT hereby waives all rights of subrogation against CITY.

3.6 VERIFICATION OF COVERAGE: CONSULTANT acknowledges, understands and agrees, that CITY’s ability to verify the procurement and maintenance of the insurance required under this Article is critical to safeguarding CITY’s financial well-being and, indirectly, the collective well-being of the residents of the CITY.

Accordingly, CONSULTANT warrants, represents and agrees that its shall furnish CITY with original certificates of insurance and endorsements evidencing the coverage required under this Article on forms satisfactory to CITY in its sole and absolute discretion. The certificates of insurance and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the CITY if requested. All certificates of insurance and endorsements shall be received and approved by CITY as a condition precedent to CONSULTANT’s commencement of any work or any of the Work. Upon CITY’s written request, CONSULTANT shall also provide CITY with certified copies of all required insurance policies and endorsements.

IV.

INDEMNIFICATION

4.1 The Parties agree that CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers (hereinafter, the “CITY Indemnitees”) should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost arising out of or in any way related to the performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the CITY Indemnitees with the fullest protection possible under the law. CONSULTANT acknowledges that CITY would not enter into this Agreement in the absence of CONSULTANT’s commitment to indemnify, defend and protect CITY as set forth herein.

4.2 To the fullest extent permitted by law, CONSULTANT shall indemnify, hold harmless and defend the CITY Indemnitees from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONSULTANT’s performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except

such loss or damage which is caused by the sole negligence or willful misconduct of the CITY.

4.3 CITY shall have the right to offset against the amount of any compensation due CONSULTANT under this Agreement any amount due CITY from CONSULTANT as a result of CONSULTANT’s failure to pay CITY promptly any indemnification arising under this Article and related to CONSULTANT’s failure to either (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.

4.4 The obligations of CONSULTANT under this Article will not be limited by the provisions of any workers’ compensation act or similar act. CONSULTANT expressly waives its statutory immunity under such statutes or laws as to CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers.

4.5 CONSULTANT agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Article from each and every subcontractor 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 herein, CONSULTANT agrees to be fully responsible and indemnify, hold harmless and defend CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of CONSULTANT’s subcontractors or any other person or entity involved by, for, with or on behalf of CONSULTANT in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of CITY’s choice.

4.6 CITY does not, and shall not, waive any rights that it may possess against CONSULTANT because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.

4.7 This Article and all provisions contained herein (including but not limited to the duty to indemnify, defend and hold free and harmless) shall survive the termination or normal expiration of this Agreement and is in addition to any other rights or remedies which the CITY may have at law or in equity.

V.

TERMINATION

5.1 TERMINATION WITHOUT CAUSE: CITY may terminate this Agreement at any time for convenience and without cause by giving CONSULTANT a minimum of five (5) calendar days prior written notice of CITY’s intent to terminate this Agreement. Upon such termination for convenience, CONSULTANT shall be compensated only for those services and tasks which have been performed by CONSULTANT up to the effective date of the termination. CONSULTANT may not terminate this Agreement except for cause as provided under Section 5.2, below. If this Agreement is terminated as provided herein, CITY may require CONSULTANT to provide all finished or unfinished Documents and Data, as defined in Section 7.1 below, and other information of any kind prepared by CONSULTANT in connection with the performance of the Work. CONSULTANT shall be required to provide such Documents and Data within fifteen (15) calendar days of CITY’s written request. No actual or asserted breach of this Agreement on the part of CITY pursuant to Section 5.2, below, shall operate to prohibit or otherwise restrict CITY’s ability to terminate this Agreement for convenience as provided under this Section.

5.2 EVENTS OF DEFAULT; BREACH OF AGREEMENT:

A. In the event either Party fails to perform any duty, obligation, service or task set forth under this Agreement (or fails to timely perform or properly perform any such duty, obligation, service or task set forth under this Agreement), an event of default (hereinafter, “Event of Default”) shall occur. For all Events of Default, the Party alleging an Event of Default shall give written notice to the defaulting Party (hereinafter referred to as a “Default Notice”) which shall specify: (i) the nature of the Event of Default; (ii) the action required to cure the Event of Default; (iii) a date by which the Event of Default shall be cured, which shall not be less than the applicable cure period set forth under Sections 5.2.B and 5.2C below or if a cure is not reasonably possible within the applicable cure period, to begin such cure and diligently prosecute such cure to completion. The Event of Default shall constitute a breach of this Agreement if the defaulting Party fails to cure the Event of Default within the applicable cure period or any extended cure period allowed under this Agreement.

B. CONSULTANT shall cure the following Events of Defaults within the following time periods:
i. Within three (3) business days of CITY’s issuance of a Default Notice for any failure of CONSULTANT to timely provide CITY or CITY’s employees or agents with any information and/or written reports, documentation or work product which CONSULTANT is obligated to provide to CITY or CITY’s employees or agents under this Agreement. Prior to the expiration of the 3-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has

commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 3-day cure period.

The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2 B.i. that exceeds seven (7) calendar days from the end of the initial 3-day cure period; or
ii. Within fourteen (14) calendar days of CITY’s issuance of a Default Notice for any other Event of Default under this Agreement. Prior to the expiration of the 14-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced
efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 14-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2B.ii that exceeds thirty (30) calendar days from the end of the initial 14-day cure period.

In addition to any other failure on the part of CONSULTANT to perform any duty, obligation, service or task set forth under this Agreement (or the failure to timely perform or properly perform any such duty, obligation, service or task), an Event of Default on the part of CONSULTANT shall include, but shall not be limited to the following: (i) CONSULTANT’s refusal or failure to perform any of the services or tasks called for under the Scope of Services; (ii) CONSULTANT’s failure to fulfill or perform its obligations under this Agreement within the specified time or if no time is specified, within a reasonable time; (iii) CONSULTANT’s and/or its employees’ disregard or violation of any federal, state, local law, rule, procedure or regulation; (iv) the initiation of proceedings under any bankruptcy, insolvency, receivership, reorganization, or similar legislation as relates to CONSULTANT, whether voluntary of involuntary; (v) CONSULTANT’s refusal or failure to perform or observe any covenant, condition, obligation or provision of this Agreement; and/or (vii) CITY’s discovery that a statement representation or warranty by CONSULTANT relating to this Agreement is false, misleading or erroneous in any material respect.

C. CITY shall cure any Event of Default asserted by CONSULTANT within forty-five (45) calendar days of CONSULTANT’s issuance of a Default Notice, unless the Event of Default cannot reasonably be cured within the 45-day cure period. Prior to the expiration of the 45-day cure period, CITY may submit a written request for additional time to cure the Event of Default upon a showing that CITY has commenced its efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 45-day cure period. The foregoing notwithstanding, an Event of

Default dealing with CITY’s failure to timely pay any undisputed sums to CONSULTANT as provided under Section 1.4, above, shall be cured by CITY within five (5) calendar days from the date of CONSULTANT’s Default Notice to CITY.

D. CITY, in its sole and absolute discretion, may also immediately suspend CONSULTANT’s performance under this Agreement pending
CONSULTANT’s cure of any Event of Default by giving CONSULTANT written notice of CITY’s intent to suspend CONSULTANT’s performance (hereinafter, a “Suspension Notice”). CITY may issue the Suspension Notice at any time upon the occurrence of an Event of Default. Upon such suspension, CONSULTANT shall be compensated only for those services and tasks which have been rendered by CONSULTANT to the reasonable satisfaction of CITY up to the effective date of the suspension. No actual or asserted breach of this Agreement on the part of CITY shall operate to prohibit or otherwise restrict CITY’s ability to suspend this Agreement as provided herein.

E. No waiver of any Event of Default or breach under this Agreement shall constitute a waiver of any other or subsequent Event of Default or breach.

No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

F. The duties and obligations imposed under this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. In addition to any other remedies available to CITY at law or under this Agreement in the event of any breach of this Agreement, CITY, in its sole and absolute discretion, may also pursue any one or more of the following remedies:
i. Upon written notice to CONSULTANT, the CITY may immediately terminate this Agreement in whole or in part;
ii. Upon written notice to CONSULTANT, the CITY may extend the time of performance;
iii. The CITY may proceed by appropriate court action to enforce the terms of the Agreement to recover damages for CONSULTANT’s breach of the Agreement or to terminate the Agreement; or iv. The CITY may exercise any other available and lawful right or remedy.

CONSULTANT shall be liable for all legal fees plus other costs and expenses that CITY incurs upon a breach of this Agreement or in the CITY’s exercise of its remedies under this Agreement.

G. In the event CITY is in breach of this Agreement, CONSULTANT’s sole remedy shall be the suspension or termination of this Agreement and/or the recovery of any unpaid sums lawfully owed to CONSULTANT under this Agreement for completed services and tasks.

5.3 SCOPE OF WAIVER: No waiver of any default or breach under this Agreement shall constitute a waiver of any other default or breach, whether of the same or other covenant, warranty, agreement, term, condition, duty or requirement contained in this Agreement. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

5.4 SURVIVING ARTICLES, SECTIONS AND PROVISIONS: The termination of this Agreement pursuant to any provision of this Article or by normal expiration of its term or any extension thereto shall not operate to terminate any Article, Section or provision contained herein which provides that it shall survive the termination or normal expiration of this Agreement.

VI.

MISCELLANEOUS PROVISIONS

6.1 DOCUMENTS & DATA; LICENSING OF INTELLECTUAL PROPERTY: All Documents and Data shall be and remain the property of CITY without restriction or limitation upon their use or dissemination by CITY. For purposes of this Agreement, the term “Documents and Data” means and includes all reports, analyses, correspondence, plans, drawings, designs, renderings, specifications, notes, summaries, strategies, charts, schedules, spreadsheets, calculations, lists, data compilations, documents or other materials developed and/or assembled by or on behalf of CONSULTANT in the performance of this Agreement and fixed in any tangible medium of expression, including but not limited to Documents and Data stored digitally, magnetically and/or electronically.

This Agreement creates, at no cost to CITY, a perpetual license for CITY to copy, use, reuse, disseminate and/or retain any and all copyrights, designs, and other intellectual property embodied in all Documents and Data. CONSULTANT shall require all subcontractors and subconslutants working on behalf of CONSULTANT in the performance of this Agreement to agree in writing that CITY shall be granted the same right to copy, use, reuse, disseminate and retain Documents and Data prepared or assembled by any subcontractor or subconsultant as applies to Documents and Data prepared by CONSULTANT in the performance of this Agreement.

6.2 CONFIDENTIALITY: 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 prior written consent by CITY. CITY shall grant such consent if disclosure is legally required. Upon request, all CITY data shall be returned to CITY upon the termination or expiration of this Agreement.

CONSULTANT shall not use CITY’s name or insignia, photographs, or any publicity pertaining to the Work in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of CITY.

6.3 FALSE CLAIMS ACT: CONSULTANT warrants and represents that neither CONSULTANT nor any person who is an officer of, in a managing position with, or has an ownership interest in CONSULTANT has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act, 31 U.S.C., Section 3789 et seq. and the California False Claims Act, Government Code Section 12650 et seq.

6.4 NOTICES: All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose:

CONSULTANT: CITY:
[_REPLACE WITH Business Name of
Consultant_]
[_REPLACE WITH Business
Address_]
Attn: [_REPLACE WITH Name/Title of
Consultant’s chief contact ___]
Phone: [_REPLACE WITH Phone
Number_]
Fax: [_REPLACE WITH Fax
Number__]
Email: [_If available, REPLACE WITH
e-mail or simply delete_]
City of Cudahy
[Insert Name of Department/Division]
5220 Santa Ana Street
Cudahy, CA 90201
Attn: [___Title of CITY Contact___]
Phone: [___REPLACE WITH Dept
Phone__]
Fax: [___REPLACE WITH Dept
Fax___]
Such notices shall be deemed effective when personally delivered or successfully transmitted by facsimile as evidenced by a fax confirmation slip or when mailed, forty-eight (48) hours after deposit with the United States Postal Service, first class postage prepaid and addressed to the Party at its applicable address.

6.5 COOPERATION; FURTHER ACTS: The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as is reasonably necessary, appropriate or convenient to achieve the purposes of this Agreement.

6.6 SUBCONTRACTING: CONSULTANT shall not subcontract any portion of the Work required by this Agreement, except as expressly stated herein, without the prior written approval of CITY. Subcontracts (including without limitation subcontracts with subconsultants), if any, shall contain a provision making them subject to all provisions stipulated in this Agreement, including provisions relating to insurance requirements and indemnification.

6.7 CITY’S RIGHT TO EMPLOY OTHER CONSULTANTS: CITY reserves the right to employ other contractors in connection with the various projects worked upon by CONSULTANT.

6.8 PROHIBITED INTERESTS: CONSULTANT warrants, represents and maintains that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this Agreement. Further, CONSULTANT warrants and represents that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CONSULTANT, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, CITY shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of CITY, during the term of his or her service with CITY, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

6.9 TIME IS OF THE ESSENCE: Time is of the essence for each and every provision of this Agreement.

6.10 GOVERNING LAW AND VENUE: This Agreement shall be interpreted and governed according to the laws of the State of California. In the event of litigation between the Parties, venue, without exception, shall be in the Los Angeles County Superior Court of the State of California. If, and only if, applicable law requires that all or part of any such litigation be tried exclusively in federal court, venue, without exception, shall be in the Central District of California located in the City of Los Angeles, California.

6.11 ATTORNEYS’ FEES: If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.

6.12 SUCCESSORS AND ASSIGNS: This Agreement shall be binding on the successors and assigns of the Parties.

6.13 NO THIRD PARTY BENEFIT: There are no intended third party beneficiaries of any right or obligation assumed by the Parties. All rights and benefits under this Agreement inure exclusively to the Parties.

6.14 CONSTRUCTION OF AGREEMENT: This Agreement shall not be construed in favor of, or against, either Party but shall be construed as if the Parties prepared this Agreement together through a process of negotiation and with the advice of their respective attorneys.

6.15 SEVERABILITY: If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

6.16 AMENDMENT; MODIFICATION: No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to CITY approval. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid.

6.17 CAPTIONS: The captions of the various articles, sections and paragraphs are for convenience and ease of reference only, and do not define, limits, augment, or describe the scope, content, or intent of this Agreement.

6.18 INCONSISTENCIES OR CONFLICTS: In the event of any conflict or inconsistency between the provisions of this Agreement and any of the exhibits attached hereto, the provisions of this Agreement shall control.

6.19 ENTIRE AGREEMENT: This Agreement including all attached exhibits is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed herein and supersedes all other agreements or understandings, whether oral or written, or entered into between CITY and CONSULTANT prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid or binding. No amendment, modification or supplement to this Agreement shall be valid and binding unless in writing and duly executed by the Parties pursuant to Section 6.15, above.

6.20 COUNTERPARTS: .This Agreement shall be executed in three (3) original counterparts each of which shall be of equal force and effect. No handwritten or typewritten amendment, modification or supplement to any one counterparts shall be valid or binding unless made to all three counterparts in conformity with Section 6.16, above. One fully executed original counterpart shall be delivered to CONSULTANT and the remaining two original counterparts shall be retained by CITY.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first appearing in this Agreement, above.

CITY OF CUDAHY:

By:______________________________
Alfonso Noyola, City Manager
Date:_____________________________

[REPLACE WITH BUSINESS NAME OF
CONSULTANT, E.G., ACME CORP., A
CALIFORNIA CORPORATION ETC.]:

By:______________________________
Name:____________________________
Title:_____________________________
Date:_____________________________
APPROVED AS TO FORM:

By:______________________________

Date:_____________________________

APPENDIX B

PROJECT MANAGEMENT SERVICES RFP

SUMMARY SHEET
Firm Name:____________________________________________________________ Firm Parent or Ownership: ________________________________________________ Firm Address: __________________________________________________________ ______________________________________________________________________ Firm Telephone Number: _____________________ Fax Number: _________________ Firm Email Address: _____________________________________________________ Firm Website: __________________________________________________________ Number of years in existence: _____________________
Management Contact (person authorized to sign an agreement for the firm; and ultimately responsible for services required for this Request for Proposal:

Name: _____________________________________ Title: ______________________ Telephone Number: __________________________ Fax: ______________________ Email: ________________________________________________________________ Types of series provided by your firm: _______________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

APPENDIX C

DESIGN ENGINEERING SERVICES RFP
CERTIFICATION OF FIRM’S ACCEPTANCE OF CITY OF
CUDAHY’S PROFESSIONAL SERVICES AGREEMENTAND
PROPOSAL FOR MODIFICATION OF TERMS (if any)
By signing this form below, the firm certifies that the attached Agreement in Appendix B is acceptable to the firm and will be signed upon selection of the firm to perform consulting services for the City of Cudahy, except for request for modification of the agreement (if any), as specifically described below (or listing modifications by number that refer to attached sheets if necessary).

Name and Signature of Firm’s Management Representative authorized to sign an agreement:

Name Title
Signature Date
Firm Name:

APPENDIX D

DESIGN ENGINEERING SERVICES RFP

FALSE CLAIMS FORM

CITY OF CUDAHY

CITY HALL
5220 SANTA ANA STREET
CUDAHY, CALIFORNIA 90201

FALSE CLAIMS/

FALSE CLAIMS ACT CERTIFICATION
(DESIGN ENGINEERING SERVICES RFP)
Proposer shall provide either the certification requested below or the information requested on the next page. Failure to certify or provide the requested information may result in a determination that the Proposer is non-responsive and City may reject the proposal on this basis. Failure to fully and accurately provide the requested certification or information may result in a determination that the Proposer is not responsible and City may reject the proposal on this basis as well. “False Claims Act”, as used herein, is defined as either or both the Federal False Claims Act, 31 U.S.C. Sections 3729 et seq., and the California False Claims Act, Government Code Sections 12650 et seq.

FALSE CLAIMS ACT CERTIFICATION
If the Proposer has no False Claims Act violations as described above, complete the following:

I, , am the ______________________________
(Print name of person responsible for submitting proposal) (Title with proposing entity) of________________________________________________(hereinafter, “Proposer”). (Print Name of Proposing Entity)
In submitting a proposal to the City of Cudahy, I, hereby certify that neither Proposer nor any person who is an officer of, in a managing position with, or has an ownership interest in Proposer has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act as defined above.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this day of at ______________________________
(month and year) (city and state)
By
(Signature of Person Responsible for Submitting Proposal on behalf of Proposer)

FALSE CLAIMS ACT VIOLATIONS INFORMATION
(1) Date of Determination of Violation: _ _____
______________________________________________________________________ (2) Identity of tribunal or court and case name or number, if any: _________________ ______________________________________________________________________ (3) Government Contract or project involved: ________________________________ ______________________________________________________________________ (4) Government agency involved: _________________________________________ ______________________________________________________________________ (5) Amount of fine imposed: ______________________________________________ (6) Exculpatory Information: _______________________________________________ ______________________________________________________________________ ______________________________________________________________________

DECLARATION
I, , the _____
(Print name of person responsible for submitting proposal) (Title with proposing entity) of ________________________________________________(hereinafter, “Proposer”) (Print Name of Proposing Entity)
I declare under penalty of perjury that the above information is true and correct.

Executed this day of at ______________________________
(month and year) (city and state)
by ___________________________________________________________________ (Signature of Person Responsible for Submitting Proposal on behalf of Proposer)

END OF DOCUMENT

APPENDIX E

DESIGN ENGINEERING SERVICES RFP

CIVIL LITIGATION HISTORY

CITY OF CUDAHY

CITY HALL
5220 SANTA ANA STREET
CUDAHY, CALIFORNIA 90201

CIVIL LITIGATION HISTORY/

CIVIL LITIGATION CERTIFICATION
(DESIGN ENGINEERING SERVICES RFP)
Proposer shall provide either the certification requested below or information requested on the next page. Failure to provide such certification or information may result in a determination that the Proposer is nonresponsive. Failure to fully and accurately provide the requested certification or information may result in a determination that the Proposer is not responsible. For the five (5) years preceding the date of submittal of this Proposal, identify any civil litigation arising out of the performance of a procurement contract within the State of California in which any of the following was a named plaintiff or defendant in a lawsuit brought by or against the entity soliciting Proposals: the Proposer submitting the instant Proposal, including any person who is an officer of, or in a managing position with, or has an ownership interest in the entity submitting the Proposal. Do not include litigation which is limited solely to enforcement of mechanics' liens or stop notices. Provide on the following page labeled “Civil Litigation History Information:” (i) the name and court case identification number of each case, (ii) the jurisdiction in which it was filed, and (iii) the outcome of the litigation, e.g., whether the case is pending, a judgment was entered, a settlement was reached, or the case was dismissed.

CIVIL LITIGATION CERTIFICATION
If the Proposer has no civil litigation history to report as described above, complete the following:

I, , am the ______________________________
(Print name of person responsible for submitting Proposal) (Title with Proposing Entity) of _______________________________________________(hereinafter, “Proposer”). (Print Name of Proposing Entity)
In submitting a Proposal to the City of Cudahy for Design Engineering Services, I, hereby certify that neither Proposer nor any person who is an officer of, in a managing position with, or has an ownership interest in Proposer has been involved in civil litigation as described, above.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this day of at
(month and year) (city and state)
by
(Signature of Person Responsible for Submitting Proposal on behalf of Proposer)

CIVIL LITIGATION HISTORY INFORMATION
(1) Name of Case: _____________________________________________________ ______________________________________________________________________ (2) Court case identification number: _______________________________________ (3) Jurisdiction in which case was filed: _____________________________________ (4) Outcome of the case: ________________________________________________ ______________________________________________________________________ ______________________________________________________________________ (5) Name of Case: _____________________________________________________ ______________________________________________________________________ (6) Court case identification number: _______________________________________ (7) Jurisdiction in which case was filed: _____________________________________ (8) Outcome of the case: ________________________________________________ ______________________________________________________________________ ______________________________________________________________________

DECLARATION
I, ____, the
(Print name of person responsible for submitting Proposal) (Title with Proposing Entity) of (hereinafter, “Proposer”)
(Print Name of Proposing Entity)
I declare under penalty of perjury that the above information is true and correct.

Executed this day of at ______________________________
(month and year) (city and state)
by ___________________________________________________________________ (Signature of Person Responsible for Submitting Proposal on behalf of Proposer)

END OF DOCUMENT

PROFESSIONAL SERVICES AGREEMENT
(Engagement: On-Call Design Engineering Services)
(Parties: City of Cudahy – Transtech Engineers, Inc.)
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 4 day of October, 2022 (hereinafter, the “Effective Date”), by and between the CITY OF CUDAHY, a municipal corporation (“CITY”) and Transtech Engineers, Inc. (“CONSULTANT”). For the purposes of this Agreement CITY and CONSULTANT may be referred to collectively by the capitalized term “Parties.” The capitalized term “Party” may refer to CITY or CONSULTANT interchangeably.

WHEREAS, CITY wishes to engage CONSULTANT to provide the following specialized services: On-Call Project Management and Project Design; and WHEREAS, CITY’s in-house personnel is presently unable to perform the specialized services and tasks contemplated under this Agreement; and WHEREAS, CONSULTANT possesses the specialized training, skill, expertise and experience required to perform the services contemplated under this Agreement; and
WHEREAS, CONSULTANT agrees to perform the various services and tasks set forth under this Agreement subject to the terms and conditions set forth herein; and NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY and CONSULTANT agree as follows:

I.

ENGAGEMENT TERMS

1.1 SCOPE OF SERVICES: Subject to the terms and conditions set forth in this Agreement and all exhibits attached and incorporated hereto, CONSULTANT agrees to perform the services and tasks set forth in Exhibit “A” (hereinafter referred to as the “Scope of Services”). CONSULTANT further agrees to furnish to CITY all labor, materials, tools, supplies, equipment, services, tasks and incidental and customary work necessary to competently perform and timely complete the services and tasks set forth in the Scope of Services. For the purposes of this Agreement the aforementioned services and tasks set forth in the Scope of Services shall hereinafter be referred to generally by the capitalized term “Work.”
Attachment B Page 394 of 507

1.2 TERM: This Agreement shall have a term of three (3) years commencing from October 4, 2022 (“EFFECTIVE DATE”) unless earlier terminated as provided elsewhere in this Agreement. This Agreement may be extended subject to the same terms and conditions set forth herein for a maximum of two (2) one (1) year extension terms, in the sole and absolute discretion of CITY, provided CITY issues written notice of its intent to so extend the Agreement no less than thirty (3) calendar days prior to the expiration of the Initial Term or any subsequent extension term. Nothing in this Section shall operate to prohibit or otherwise restrict the CITY’s ability to terminate this Agreement at any time for convenience or for cause.

1.3 COMPENSATION:

A. CONSULTANT shall perform the various services and tasks set forth in the Scope of Services in accordance with the compensation schedule (hereinafter, the “Approved Rate Schedule”) which is found in Exhibit A.

B. CONSULTANT agrees that CONSULTANT shall perform the Services during the course of the term set forth in Section 1.3(A), above, at rate of compensation that shall not exceed One Million Four Hundred Thousand Dollars ($1,400,000.00.) (hereinafter, the “Contract Price”). The Parties agree that the Contract Price includes compensation for all labor, materials, tools, supplies, equipment, services, tasks, costs and incidental and customary work necessary to competently perform Services as well as compensation for all specifically delineated expenses set forth in the Scope of Work. In no event shall the total compensation and costs payable to CONSULTANT under this Agreement exceed the Contract Price unless the availability of funds for the added expenditure is first reviewed by the Finance Division of the City of Cudahy and unless such added expenditure is specifically approved in advance and in writing by the CITY.

C. Sections 1.3(A) and 1.3(B) notwithstanding, as needed, CONSULTANT shall be requested to submit a proposed budget for each project to be approved by the City Manager for project management and design services. In the event CONSULTANT’s charges are projected to exceed the proposed budget prior to the expiration of the Term or any single extension term, CITY may suspend CONSULTANT’s performance pending CITY approval of any anticipated expenditures in excess of the budget amount or any other CITY-approved amendment to the compensation terms of this Agreement.

1.4 PAYMENT OF COMPENSATION:

A. CITY shall compensate CONSULTANT on a monthly basis for all services rendered and tasks performed by CONSULTANT during the preceding month. At the end of each month during the term of this Agreement, CONSULTANT shall submit to CITY a monthly itemized statement(s) that

lists and reasonably describes the specific services rendered and/or tasks performed and the number of personnel hours devoted to such effort; the date(s) upon which such services and/or tasks were performed; and the name of the person(s) performing the service or task along with their applicable hourly billing rate.

B. Within fifteen (15) business days of receipt of each invoice, CITY shall notify CONSULTANT in writing of any disputed amounts included in the invoice. Within forty-five (45) calendar days of receipt of each invoice, CITY shall pay all undisputed amounts included on the invoice. CITY shall not withhold applicable taxes or other authorized deductions from payments made to CONSULTANT.

1.5 ACCOUNTING RECORDS: CONSULTANT shall maintain complete and accurate records with respect to all matters covered under this Agreement for a period of five (5) years after the expiration or termination of this Agreement.

CITY shall have the right to access and examine such records, without charge, during normal business hours. CITY shall further have the right to audit such records, to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.

1.6 ABANDONMENT BY CONSULTANT: In the event CONSULTANT ceases to perform the Work agreed to under this Agreement or otherwise abandons the undertaking contemplated herein prior to the expiration of this Agreement or prior to completion of any or all tasks set forth in the Scope of Services, CONSULTANT shall deliver to CITY immediately and without delay, all materials, records and other work product prepared or obtained by CONSULTANT in the performance of this Agreement. Furthermore, CONSULTANT shall only be compensated for the reasonable value of the services, tasks and other work performed up to the time of cessation or abandonment, less a deduction for any damages, costs or additional expenses which CITY may incur as a result of CONSULTANT’s cessation or abandonment.

II.

PERFORMANCE OF AGREEMENT

2.1 CITY’S REPRESENTATIVES: The CITY hereby designates the CITY Manager (hereinafter, the “CITY Representative”) to act as its representative for the performance of this Agreement. The CITY Manager shall be the chief CITY Representative. The CITY Representative or his designee shall act on behalf of CITY for all purposes under this Agreement. CONSULTANT shall not accept directions or orders from any person other than the CITY Representative or his designee.

2.2 CONSULTANT REPRESENTATIVE: CONSULTANT hereby designates Ali Pakzad, Principal-in-Charge/Contract Manager (“Contractor”) to act as its representative for the performance of this Agreement (hereinafter,

“CONSULTANT Representative”). CONSULTANT Representative shall have full authority to represent and act on behalf of the CONSULTANT for all purposes under this Agreement. CONSULTANT Representative or his designee shall supervise and direct the performance of the Work, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Agreement. Notice to the CONSULTANT Representative shall constitute notice to CONSULTANT.

2.3 COORDINATION OF SERVICE; CONFORMANCE WITH REQUIREMENTS:

CONSULTANT agrees to work closely with CITY staff in the performance of the Work and this Agreement and shall be available to CITY staff and the CITY Representative at all reasonable times. All work prepared by CONSULTANT shall be subject to inspection and approval by CITY Representative or its designees.

2.4 STANDARD OF CARE; PERFORMANCE OF EMPLOYEES: CONSULTANT represents, acknowledges and agrees to the following:

A. CONSULTANT shall perform all Work skillfully, competently and to the generally accepted standards of CONSULTANT’s profession; B. CONSULTANT shall perform all Work in a manner reasonably satisfactory to the CITY;
C. CONSULTANT shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code section 1090 and the Political Reform Act (Government Code section 81000 et seq.);
D. CONSULTANT understands the nature and scope of the Work to be performed under this Agreement as well as any and all schedules of performance;
E. All of CONSULTANT’s employees and agents possess sufficient skill, knowledge, training and experience to perform those services and tasks assigned to them by CONSULTANT; and
F. All of CONSULTANT’s employees and agents (including but not limited subcontractors and subconsultants) possess all licenses, permits, certificates, qualifications and approvals of whatever nature that are legally required to perform the tasks and services contemplated under this Agreement and all such licenses, permits, certificates, qualifications and approvals shall be maintained throughout the term of this Agreement and made available to CITY for copying and inspection.

The Parties acknowledge and agree that CONSULTANT shall perform, at CONSULTANT’s own cost and expense and without any reimbursement from CITY, any services necessary to correct any errors or omissions caused by CONSULTANT’s failure to comply with the standard of care set forth under this Section or by any like failure on the part of CONSULTANT’s employees, agents, contractors, subcontractors and subconsultants. Such effort by CONSULTANT to correct any errors or omissions shall be commenced immediately upon their discovery by either Party and shall be completed within seven (7) calendars days from the date of discovery or such other extended period of time authorized by the CITY Representatives in writing and in their sole and absolute discretion.

The Parties acknowledge and agree that CITY’s acceptance of any work performed by CONSULTANT or on CONSULTANT’s behalf shall not constitute a release of any deficiency or delay in performance. The Parties further acknowledge, understand and agree that CITY has relied upon the foregoing representations of CONSULTANT, including but not limited to the representation that CONSULTANT possesses the skills, training, knowledge and experience necessary to perform the Work skillfully, competently and to the generally accepted standards of CONSULTANT’s profession.

2.5 ASSIGNMENT: The skills, training, knowledge and experience of CONSULTANT are material to CITY’s willingness to enter into this Agreement.

Accordingly, CITY has an interest in the qualifications and capabilities of the person(s) who will perform the services and tasks to be undertaken by CONSULTANT or on behalf of CONSULTANT in the performance of this Agreement. In recognition of this interest, CONSULTANT agrees that it shall not assign or transfer, either directly or indirectly or by operation of law, this Agreement or the performance of any of CONSULTANT’s duties or obligations under this Agreement without the prior written consent of the CITY. In the absence of CITY’s prior written consent, any attempted assignment or transfer shall be ineffective, null and void and shall constitute a material breach of this Agreement.

2.6 CONTROL AND PAYMENT OF SUBORDINATES; INDEPENDENT
CONTRACTOR: The Work shall be performed by CONSULTANT or under CONSULTANT’s strict supervision. CONSULTANT will determine the means, methods and details of performing the Work subject to the requirements of this Agreement. CITY retains CONSULTANT on an independent contractor basis and not as an employee. CONSULTANT reserves the right to perform similar or different services for other principals during the term of this Agreement, provided such work does not unduly interfere with CONSULTANT’s competent and timely performance of the Work contemplated under this Agreement and provided the performance of such services does not result in the unauthorized disclosure of CITY’s confidential or proprietary information. Any additional personnel performing the Work under this Agreement on behalf of CONSULTANT are not employees of CITY and shall at all times be under CONSULTANT’s exclusive

direction and control. CONSULTANT shall pay all wages, salaries and other amounts due such personnel and shall assume responsibility for all benefits, payroll taxes, Social Security and Medicare payments and the like.

CONSULTANT shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: Social Security taxes, income tax withholding, unemployment insurance, disability insurance, workers’ compensation insurance and the like.

2.7 REMOVAL OF EMPLOYEES OR AGENTS: If any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants is determined by the CITY Representatives to be uncooperative, incompetent, a threat to the adequate or timely performance of the tasks assigned to CONSULTANT, a threat to persons or property, or if any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants fail or refuse to perform the Work in a manner acceptable to the CITY, such officer, employee, agent, contractor, subcontractor or subconsultant shall be promptly removed by CONSULTANT and shall not be re-assigned to perform any of the Work.

2.8 COMPLIANCE WITH LAWS: CONSULTANT shall keep itself informed of and in compliance with all applicable federal, state or local laws to the extent such laws control or otherwise govern the performance of the Work. CONSULTANT’s compliance with applicable laws shall include without limitation compliance with all applicable Cal/OSHA requirements.

2.9 NON-DISCRIMINATION: In the performance of this Agreement, CONSULTANT shall not discriminate against any employee, subcontractor, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition.

2.10 INDEPENDENT CONTRACTOR STATUS: The Parties acknowledge, understand and agree that CONSULTANT and all persons retained or employed by CONSULTANT are, and shall at all times remain, wholly independent contractors and are not officials, officers, employees, departments or subdivisions of CITY. CONSULTANT shall be solely responsible for the negligent acts and/or omissions of its employees, agents, contractors, subcontractors and subconsultants. CONSULTANT and all persons retained or employed by CONSULTANT shall have no authority, express or implied, to bind CITY in any manner, nor to incur any obligation, debt or liability of any kind on behalf of, or against, CITY, whether by contract or otherwise, unless such authority is expressly conferred to CONSULTANT under this Agreement or is otherwise expressly conferred by CITY in writing.

2.11 DISADVANTAGED BUSINESS ENTERPRISE (DBE). 49 C.F.R. Part 26.

Disadvantaged Business Enterprises.

A. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. CITY elects not to place a DBE contract goal on this project as there are few or no opportunities for DBE subcontractors for project management and project design services. A separate contract goal has not been established for this procurement.

B. CONSULTANT shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 C.F.R. Part 26 in the award and administration of this DOT-assisted contract. Failure by CONSULTANT to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as CITY deems appropriate. Each subcontract CONSULTANT signs with a subcontractor must include the assurance in this paragraph (see 49 C.F.R. 26.13(b)).

The successful bidder/offeror will be required to report its DBE participation obtained through race-neutral means throughout the period of performance. A copy of all DBE Certifications are required, if applicable.

C. CONSULTANT is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after CONSULTANT’s receipt of payment for that work from CITY.

D. CONSULTANT must promptly notify CITY whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work.

CONSULTANT may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of CITY.

III.

INSURANCE

3.1 DUTY TO PROCURE AND MAINTAIN INSURANCE: Prior to the beginning of and throughout the duration of the Work, CONSULTANT will procure and maintain policies of insurance that meet the requirements and specifications set forth under this Article. CONSULTANT shall procure and maintain the following insurance coverage, at its own expense:

A. Commercial General Liability Insurance: CONSULTANT shall procure and maintain Commercial General Liability Insurance (“CGL Coverage”) as

broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) or its equivalent. Such CGL Coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the general aggregate for bodily injury, personal injury, property damage, operations, products and completed operations, and contractual liability.

B. Automobile Liability Insurance: CONSULTANT shall procure and maintain Automobile Liability Insurance as broad as Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto).

Such Automobile Liability Insurance shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per accident for bodily injury and property damage.

C. Workers’ Compensation Insurance/ Employer’s Liability Insurance: A policy of workers’ compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both CONSULTANT and CITY against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by CONSULTANT in the course of carrying out the Work contemplated in this Agreement.

D. Errors & Omissions Insurance: For the full term of this Agreement and for a period of three (3) years thereafter, CONSULTANT shall procure and maintain Errors and Omissions Liability Insurance appropriate to CONSULTANT’s profession. Such coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per claim.

3.2 ADDITIONAL INSURED REQUIREMENTS: The CGL Coverage and the Automobile Liability Insurance shall contain an endorsement naming the CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers as additional insureds.

3.3 REQUIRED CARRIER RATING: All varieties of insurance required under this Agreement shall be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance shall be procured from insurers who, according to the latest edition of the Best’s Insurance Guide, have an A.M. Best’s rating of no less than A:VII. CITY may also accept policies procured by insurance carriers with a Standard & Poor’s rating of no less than BBB according to the latest published edition the Standard & Poor’s rating guide.

As to Workers’ Compensation Insurance/ Employer’s Liability Insurance, the CITY Representatives are authorized to authorize lower ratings than those set forth in this Section.

3.4 PRIMACY OF CONSULTANT’S INSURANCE: All policies of insurance provided by CONSULTANT shall be primary to any coverage available to CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers. Any insurance or self-insurance maintained by CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.

3.5 WAIVER OF SUBROGATION: All insurance coverage provided pursuant to this Agreement shall not prohibit CONSULTANT or CONSULTANT’s officers, employees, agents, subcontractors or subconsultants from waiving the right of subrogation prior to a loss. CONSULTANT hereby waives all rights of subrogation against CITY.

3.6 VERIFICATION OF COVERAGE: CONSULTANT acknowledges, understands and agrees, that CITY’s ability to verify the procurement and maintenance of the insurance required under this Article is critical to safeguarding CITY’s financial well-being and, indirectly, the collective well-being of the residents of the CITY.

Accordingly, CONSULTANT warrants, represents and agrees that its shall furnish CITY with original certificates of insurance and endorsements evidencing the coverage required under this Article on forms satisfactory to CITY in its sole and absolute discretion. The certificates of insurance and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the CITY if requested. All certificates of insurance and endorsements shall be received and approved by CITY as a condition precedent to CONSULTANT’s commencement of any work or any of the Work. Upon CITY’s written request, CONSULTANT shall also provide CITY with certified copies of all required insurance policies and endorsements.

IV.

INDEMNIFICATION

4.1 The Parties agree that CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers (hereinafter, the “CITY Indemnitees”) should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost arising out of or in any way related to the performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the CITY Indemnitees with the fullest protection possible under the law. CONSULTANT acknowledges that CITY would not enter into this Agreement in the absence of CONSULTANT’s commitment to indemnify, defend and protect CITY as set forth herein.

4.2 WORK OF CONTRACTOR’S DESIGN PROFESSIONALS SERVICES: The duty to indemnify, defend and hold harmless as set forth under this subsection shall apply to the negligence, recklessness or willful misconduct of any individual who qualifies as a “design professional” within the meaning of subsection (c)(2) of

section 2782.8 of the California Civil Code in so far as such negligence, recklessness or willful misconduct occurs in the performance of the Work or activities that must be performed by a “design professional.” Subject to the limitation of the preceding sentence, to the fullest extent permitted by law, CONSULTANT shall immediately defend and indemnify and hold harmless the CITY Indemnities, defined above, from and against any and all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation arising out of the negligence, recklessness, or willful misconduct of CONSULTANT or any of CONSULTANT’s officers, employees, servants, agents, contractors, subcontractors or authorized volunteers or any other person or entity involved by, for, with or on behalf of CONSULTANT in the performance of design professional services under this Agreement. The Parties understand and agree that the duty of CONSULTANT to indemnify, defend and hold harmless pursuant to this subsection includes the duty to defend as set forth in section 2778 of the California Civil Code.

CONSULTANT’s obligation to indemnify applies unless it is finally adjudicated that the liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, then CONSULTANT’s indemnification obligation shall be reduced in proportion to the established comparative liability.

4.3 WORK OF ALL OTHER PERSONS/NON-DESIGN PROFESSIONALS: Except as otherwise provided under Section 4.2 of this Article, above, to the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless the CITY Indemnitees from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation) of every nature to the extent caused by CONSULTANT’s negligent performance under this Agreement, including but not limited to the negligent acts, errors or omissions of CONSULTANT or CONSULTANT’s officers, employees, agents, servants, contractors, subcontractors or subconsultants or the failure of the same to comply with any of the duties, obligations or standards of care set forth herein. The duty to indemnify, defend and hold harmless under this subsection shall not encompass a duty to indemnify, defend or hold harmless for liability, loss, suit, damage, expense, or cost caused by the negligence or willful misconduct of any or all of the CITY Indemnitees. The duty to indemnify, defend and hold harmless as set forth under this subsection is intended to encompass liabilities, losses, damages, expense and costs not otherwise subject to subsection 4.2, above.

4.4 To the fullest extent permitted by law, CONSULTANT shall indemnify, hold harmless and defend the CITY Indemnitees from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONSULTANT’s performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except

such loss or damage which is caused by the sole negligence or willful misconduct of the CITY.

4.5 CITY shall have the right to offset against the amount of any compensation due CONSULTANT under this Agreement any amount due CITY from CONSULTANT as a result of CONSULTANT’s failure to pay CITY promptly any indemnification arising under this Article and related to CONSULTANT’s failure to either (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.

4.6 The obligations of CONSULTANT under this Article will not be limited by the provisions of any workers’ compensation act or similar act. CONSULTANT expressly waives its statutory immunity under such statutes or laws as to CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers.

4.7 CONSULTANT agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Article from each and every subcontractor 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 herein, CONSULTANT agrees to be fully responsible and indemnify, hold harmless and defend CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of CONSULTANT’s subcontractors or any other person or entity involved by, for, with or on behalf of CONSULTANT in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of CITY’s choice.

4.8 CITY does not, and shall not, waive any rights that it may possess against CONSULTANT because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.

4.9 This Article and all provisions contained herein (including but not limited to the duty to indemnify, defend and hold free and harmless) shall survive the termination or normal expiration of this Agreement and is in addition to any other rights or remedies which the CITY may have at law or in equity.

V.

TERMINATION

5.1 TERMINATION WITHOUT CAUSE: CITY may terminate this Agreement at any time for convenience and without cause by giving CONSULTANT a minimum of

five (5) calendar days prior written notice of CITY’s intent to terminate this Agreement. Upon such termination for convenience, CONSULTANT shall be compensated only for those services and tasks which have been performed by CONSULTANT up to the effective date of the termination. CONSULTANT may not terminate this Agreement except for cause as provided under Section 5.2, below. If this Agreement is terminated as provided herein, CITY may require CONSULTANT to provide all finished or unfinished Documents and Data, as defined in Section 6.5 below, and other information of any kind prepared by CONSULTANT in connection with the performance of the Work. CONSULTANT shall be required to provide such Documents and Data within fifteen (15) calendar days of CITY’s written request. No actual or asserted breach of this Agreement on the part of CITY pursuant to Section 5.2, below, shall operate to prohibit or otherwise restrict CITY’s ability to terminate this Agreement for convenience as provided under this Section.

5.2 EVENTS OF DEFAULT; BREACH OF AGREEMENT:

A. In the event either Party fails to perform any duty, obligation, service or task set forth under this Agreement (or fails to timely perform or properly perform any such duty, obligation, service or task set forth under this Agreement), an event of default (hereinafter, “Event of Default”) shall occur. For all Events of Default, the Party alleging an Event of Default shall give written notice to the defaulting Party (hereinafter referred to as a “Default Notice”) which shall specify: (i) the nature of the Event of Default; (ii) the action required to cure the Event of Default; (iii) a date by which the Event of Default shall be cured, which shall not be less than the applicable cure period set forth under Sections 5.2.(B) and 5.2(C) below or if a cure is not reasonably possible within the applicable cure period, to begin such cure and diligently prosecute such cure to completion. The Event of Default shall constitute a breach of this Agreement if the defaulting Party fails to cure the Event of Default within the applicable cure period or any extended cure period allowed under this Agreement.

B. CONSULTANT shall cure the following Events of Defaults within the following time periods:
i. Within three (3) business days of CITY’s issuance of a Default Notice for any failure of CONSULTANT to timely provide CITY or CITY’s employees or agents with any information and/or written reports, documentation or work product which CONSULTANT is obligated to provide to CITY or CITY’s employees or agents under this Agreement. Prior to the expiration of the 3-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 3-day cure period.

The foregoing notwithstanding, CITY shall be under no obligation to

grant additional time for the cure of an Event of Default under this Section 5.2 B.i. that exceeds seven (7) calendar days from the end of the initial 3-day cure period; or
ii. Within fourteen (14) calendar days of CITY’s issuance of a Default Notice for any other Event of Default under this Agreement. Prior to the expiration of the 14-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced
efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 14-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2B.ii that exceeds thirty (30) calendar days from the end of the initial 14-day cure period.

In addition to any other failure on the part of CONSULTANT to perform any duty, obligation, service or task set forth under this Agreement (or the failure to timely perform or properly perform any such duty, obligation, service or task), an Event of Default on the part of CONSULTANT shall include, but shall not be limited to the following: (i) CONSULTANT’s refusal or failure to perform any of the services or tasks called for under the Scope of Services; (ii) CONSULTANT’s failure to fulfill or perform its obligations under this Agreement within the specified time or if no time is specified, within a reasonable time; (iii) CONSULTANT’s and/or its employees’ disregard or violation of any federal, state, local law, rule, procedure or regulation; (iv) the initiation of proceedings under any bankruptcy, insolvency, receivership, reorganization, or similar legislation as relates to CONSULTANT, whether voluntary of involuntary; (v) CONSULTANT’s refusal or failure to perform or observe any covenant, condition, obligation or provision of this Agreement; and/or (vii) CITY’s discovery that a statement representation or warranty by CONSULTANT relating to this Agreement is false, misleading or erroneous in any material respect.

C. CITY shall cure any Event of Default asserted by CONSULTANT within forty-five (45) calendar days of CONSULTANT’s issuance of a Default Notice, unless the Event of Default cannot reasonably be cured within the 45-day cure period. Prior to the expiration of the 45-day cure period, CITY may submit a written request for additional time to cure the Event of Default upon a showing that CITY has commenced its efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 45-day cure period. The foregoing notwithstanding, an Event of Default dealing with CITY’s failure to timely pay any undisputed sums to CONSULTANT as provided under Section 1.4, above, shall be cured by CITY within five (5) calendar days from the date of CONSULTANT’s Default Notice to CITY.

D. CITY, in its sole and absolute discretion, may also immediately suspend CONSULTANT’s performance under this Agreement pending
CONSULTANT’s cure of any Event of Default by giving CONSULTANT written notice of CITY’s intent to suspend CONSULTANT’s performance (hereinafter, a “Suspension Notice”). CITY may issue the Suspension Notice at any time upon the occurrence of an Event of Default. Upon such suspension, CONSULTANT shall be compensated only for those services and tasks which have been rendered by CONSULTANT to the reasonable satisfaction of CITY up to the effective date of the suspension. No actual or asserted breach of this Agreement on the part of CITY shall operate to prohibit or otherwise restrict CITY’s ability to suspend this Agreement as provided herein.

E. No waiver of any Event of Default or breach under this Agreement shall constitute a waiver of any other or subsequent Event of Default or breach.

No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

F. The duties and obligations imposed under this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. In addition to any other remedies available to CITY at law or under this Agreement in the event of any breach of this Agreement, CITY, in its sole and absolute discretion, may also pursue any one or more of the following remedies:
i. Upon written notice to CONSULTANT, the CITY may immediately terminate this Agreement in whole or in part;
ii. Upon written notice to CONSULTANT, the CITY may extend the time of performance;
iii. The CITY may proceed by appropriate court action to enforce the terms of the Agreement to recover damages for CONSULTANT’s breach of the Agreement or to terminate the Agreement; or iv. The CITY may exercise any other available and lawful right or remedy.

CONSULTANT shall be liable for all legal fees plus other costs and expenses that CITY incurs upon a breach of this Agreement or in the CITY’s exercise of its remedies under this Agreement.

G. In the event CITY is in breach of this Agreement, CONSULTANT’s sole remedy shall be the suspension or termination of this Agreement and/or

the recovery of any unpaid sums lawfully owed to CONSULTANT under this Agreement for completed services and tasks.

5.3 SCOPE OF WAIVER: No waiver of any default or breach under this Agreement shall constitute a waiver of any other default or breach, whether of the same or other covenant, warranty, agreement, term, condition, duty or requirement contained in this Agreement. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

5.4 SURVIVING ARTICLES, SECTIONS AND PROVISIONS: The termination of this Agreement pursuant to any provision of this Article or by normal expiration of its term or any extension thereto shall not operate to terminate any Article, Section or provision contained herein which provides that it shall survive the termination or normal expiration of this Agreement.

5.5 SUSPENSION OF WORK: The CITY may suspend, in writing, all or a portion of the Work under this Agreement if unforeseen circumstances beyond the CITY’s control make normal progress of the Work impossible.

VI.

MISCELLANEOUS PROVISIONS

6.1 AUDIT OR EXAMINATION: All records and files related to the Programs shall be kept and maintained at the City Hall premises at all times. CITY shall keep and maintain all program files for the CITY and make them accessible for audit or examination for a period of five (5) years after final payments are issued and other pending matters are closed. (24 C.F.R. Part 85, Sec. 42)

6.2 CONFLICT OF INTEREST: CONSULTANT agrees that any conflict or potential conflict of interest shall be fully disclosed prior to execution of the Agreement or upon actual knowledge of a conflict of interest or potential conflict of interest during the term of this Agreement and CONSULTANT shall comply with all applicable federal, state and county laws and regulations governing conflict of interest, in accordance with 24 C.F.R. Part 85, Sec. 84.36.

6.3 COMPLIANCE WITH FEDERAL REGULATIONS:

This Agreement is subject to and incorporates the terms of Subpart K of the CDBG Regulations and all other applicable Federal Standards Provisions, inclusive of the following:

Executive Order 11246 requires that during the performance of this Agreement, CONSULTANT agrees not to discriminate against any employee or applicant for employment because of race, religion, sex color, or national origin.

CONSULTANT will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to

their race, religion, sex color or national origin. Such action shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

CONSULTANT agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by CONSULTANT setting forth the provisions of this nondiscrimination clause.

Section 3 of Housing and Community Development Act of 1968, as amended, 12 U.S.C. 1701 et seq., requires that, to the greatest extent feasible, opportunities for training and employment be given to lower income residents of the Project area and contracts for work in connection with the Project be awarded to business concerns which are located in, or owned in substantial part, by persons residing in the area of the Project.

Title VI of the Civil Rights Act of 1964 provides that no person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Section 109, Title I of the Housing and Community Development Act of 1974 provides that no person shall, on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program of activity funded in whole or in part with funds made available under this title.

Any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975, or with respect to an otherwise qualified individual, as provided in Section 504 or Rehabilitation Act of 1973, shall also apply to any such program or activity.

6.4 FEDERAL LABOR COMPLIANCE:

A. Minimum Wages.
i. The Services provided under this Agreement are financed in part with federal funding and therefore the provisions of the Davis Bacon Act (40 U.S.C. section 276a) apply to the payment of workers employed by CONSULTANT, and all subcontractors to CONSULTANT, who perform any Work on the Project under this Agreement. All laborers and mechanics employed or working on the site of the Project will be paid unconditionally and not less often than once a week, and without subsequent deductions or rebates on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 C.F.R. Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at the time of payment computed at rates not less than those contained in the

wage determination of the Secretary of Labor, which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between CONSULTANT and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to laborers or mechanics, subject to the provisions of subparagraph A.iv below; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of Work actually performed, without regard to skill, except as provided in paragraph D. of this Section. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein, provided that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under A.ii of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by CONSULTANT and its subcontractors at the site of the Project in a prominent and accessible place where it can easily be seen by the workers.
ii. Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. CITY shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met:
(a) The work to be performed by the classification
requested is not performed by a classification in the
wage determination; and
(b) The classification is utilized in the area by the
construction industry; and
(c) The proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
iii. If CONSULTANT and the laborers and mechanics to be employed in the classification (if known), or their representatives, and CITY agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the

action taken shall be sent by CITY to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S.

Department of Labor, Washington, D.C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise CITY or will notify CITY within the 30-day period that additional time is necessary.
iv. In the event CONSULTANT, the laborers or mechanics to be employed in the classification, or their representatives, and CITY do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits where appropriate), CITY shall refer the questions, including the views of all interested parties and the recommendation of CITY, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise CITY or will notify CITY within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215-0140.)
v. The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (ii) or (iii) of this paragraph, shall be paid to all workers performing work in the classification under this Agreement from the first day on which work is performed in the classification.
vi. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, CONSULTANT shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. vii. If CONSULTANT does not make payments to a trustee or other third person, CONSULTANT may consider, as part of the wages of any laborer or mechanic, the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided that the Secretary of Labor has found, upon the written request of CONSULTANT, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require CONSULTANT to set aside in a separate account assets for the meeting of obligations under the plan or program.

B. Withholding. CITY shall, upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from CONSULTANT under this Agreement or any other federal contract with the same CONSULTANT, or any other federallyassisted contract subject to the Davis-Bacon Act prevailing wage requirements, which is held by the same CONSULTANT, that amount of

the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by CONSULTANT or any subcontractor the full amount of wages required by the Agreement. In the event of failure to pay all or part of the wages required by contract to any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the Project, CITY may, after written notice, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

C. Payrolls and Basic Records.
i. Payrolls and basic records relating thereto shall be maintained by CONSULTANT during the course of the Work and preserved for a period of three (3) years thereafter for all laborers and mechanics working at the site of the Project. Such records shall contain the name, address, and Social Security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid.

Whenever the Secretary of Labor has found under paragraph A.iv of this section that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, CONSULTANT shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. If CONSULTANT employs apprentices or trainees under approved programs, CONSULTANT shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. ii. CONSULTANT shall submit weekly, for each week in which any contract work is performed, a copy of all payrolls to CITY. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under paragraph C.i above.

This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U.S. Government Printing Office, Washington, D.C. 20402. CONSULTANT is responsible for the submission of copies of payrolls by all subcontractors.

iii. Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by CONSULTANT or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Agreement and shall certify the following:
(a) That the payroll for the payroll period contains the information required to be maintained under paragraph C.i above and that such information is correct and complete; (b) That each laborer and mechanic (including each helper, apprentice and trainee) employed under the Agreement
during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 C.F.R. Part 3;
(c) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Contract.
iv. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph C.ii.(b) of this section.
v. The falsification of any of the above certifications may subject CONSULTANT or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
vi. CONSULTANT or subcontractor shall make the records required under paragraph C.i of this section available for inspection, copying or transcription by authorized representatives of CITY, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If CONSULTANT or subcontractor fails to submit the required records or to make them available, the Department of Labor may, after written notice to CONSULTANT or CITY, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment of CONSULTANT or subcontractor pursuant to 29 C.F.R. 5.12.

D. Apprentices and Trainees.
i. Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship City recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of
Apprenticeship and Training or a State Apprenticeship City (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the Project site in any craft classification shall not be greater than the ratio permitted to CONSULTANT as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination of the work actually performed. Where a consultant is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the consultant’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.

Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship City recognized by the Bureau, withdraws approval of an apprenticeship program, CONSULTANT will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

ii. Trainees. Except as provided in 29 C.F.R. 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to, and individually registered in, a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the Project site shall not be greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the Project site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, CONSULTANT will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
iii. Equal Employment Opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 C.F.R. Part 30.

E. Compliance with Copeland Act Requirements. CONSULTANT shall comply with the requirements of 29 C.F.R. Part 3, which are incorporated by reference into this Agreement.

F. Subcontracts. CONSULTANT and each subcontractor shall insert in any subcontracts the clauses contained in paragraphs A. through J. of this Agreement and also a clause requiring the subcontractor to include these clauses in any lower tier subcontracts. CONSULTANT shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 C.F.R. 5.5.

G. Agreement Termination; Debarment. A breach of the Agreement clauses in paragraphs A. through K. of this Section 2.14 are grounds for termination of this Agreement, and for the debarment of CONSULTANT or subcontractor as provided in 29 C.F.R. 5.12.

H. Compliance with Davis-Bacon and Related Act Requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 C.F.R. Parts 1, 3, and 5 are herein incorporated by reference in this Contract.

I. Disputes Concerning Labor Standards. Disputes arising out of the labor standards provisions of this Agreement shall not be subject to the general disputes provision of this Agreement. Such disputes as relate to labor standards shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 C.F.R. Parts 5, 6 and 7. Disputes within the meaning of this clause include disputes between CONSULTANT (or any of its subcontractors) and CITY, the U.S.

Department of Labor, or the employees or their representatives.

J. Certification of Eligibility.
i. By entering into this Agreement, CONSULTANT certifies that neither it (nor he or she) nor any person or firm who has an interest in CONSULTANT’s firm is a person or firm ineligible to be awarded government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 C.F.R. 5.12(a)(1).
ii. No part of this Agreement shall be subcontracted to any person or firm ineligible for award of a government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 C.F.R. 5.12(a)(1). iii. The penalty for making false statements or certifications in the making of this Agreement is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.

K. State Prevailing Wage Laws. The Services are also subject to state prevailing wage requirements under the State Prevailing Wage Laws. If the predetermined state minimum wage for a certain type or classification of labor, as determined by the Director of the California Department of Industrial Relations, is different as between the wage determined in accordance with the Davis-Bacon Act and the wage determined in accordance with the State Prevailing Wage Laws, the higher wage rate determination shall apply.

6.5 DOCUMENTS & DATA; LICENSING OF INTELLECTUAL PROPERTY: All Documents and Data shall be and remain the property of CITY without restriction or limitation upon their use or dissemination by CITY. For purposes of this Agreement, the term “Documents and Data” means and includes all reports, analyses, correspondence, plans, drawings, designs, renderings, specifications,

notes, summaries, strategies, charts, schedules, spreadsheets, calculations, lists, data compilations, documents or other materials developed and/or assembled by or on behalf of CONSULTANT in the performance of this Agreement and fixed in any tangible medium of expression, including but not limited to Documents and Data stored digitally, magnetically and/or electronically.

This Agreement creates, at no cost to CITY, a perpetual license for CITY to copy, use, reuse, disseminate and/or retain any and all copyrights, designs, and other intellectual property embodied in all Documents and Data. CONSULTANT shall require all subcontractors and subconsultants working on behalf of CONSULTANT in the performance of this Agreement to agree in writing that CITY shall be granted the same right to copy, use, reuse, disseminate and retain Documents and Data prepared or assembled by any subcontractor or subconsultant as applies to Documents and Data prepared by CONSULTANT in the performance of this Agreement.

6.6 CONFIDENTIALITY: 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 prior written consent by CITY. CITY shall grant such consent if disclosure is legally required. Upon request, all CITY data shall be returned to CITY upon the termination or expiration of this Agreement.

CONSULTANT shall not use CITY’s name or insignia, photographs, or any publicity pertaining to the Work in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of CITY. Notwithstanding the foregoing, CONSULTANT shall not be restricted from disclosing confidential information that is reasonably necessary for CONSULTANT to disclose to CONSULTANT's employees, subconsultants and the general contractor and subcontractors, if appropriate, or information in whatever form that is in the public domain. Nor shall CONSULTANT be restricted from giving notices required by law or complying with an order to provide information or data when such an order is issued by a court, administrative agency or other legitimate authority, or if disclosure is reasonably necessary for CONSULTANT to defend itself from any legal action or claim – if such an event should occur, CONSULTANT will inform CITY in writing prior to any disclosure.

6.7 FALSE CLAIMS ACT: CONSULTANT warrants and represents that neither CONSULTANT nor any person who is an officer of, in a managing position with, or has an ownership interest in CONSULTANT has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act, 31 U.S.C., section 3789 et seq. and the California False Claims Act, Government Code section 12650 et seq.

6.8 NON-DISCRIMINATION: In the performance of this Agreement, CONSULTANT shall not discriminate against any employee, subcontractor, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital

status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition.

6.9 NOTICES: All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose:

CONSULTANT: CITY:

Transtech Engineers, Inc.

Attn: Ali Cayir, Principal
13367 Benson Avenue
Chino, CA 91710
Phone: (909)595-8599
Fax: (909)590-8599
City of Cudahy
Public Works Department
5220 Santa Ana Street
Cudahy, CA 90201
Attn: Aaron Hernandez Torres, Public
Works Director
Phone: (323) 773-5143
Fax: (323) 771-2072
Such notices shall be deemed effective when personally delivered or successfully transmitted by facsimile as evidenced by a fax confirmation slip or when mailed, forty-eight (48) hours after deposit with the United States Postal Service, first class postage prepaid and addressed to the Party at its applicable address.

6.10 LOBBYING CERTIFICATION
A. Federal Requirements:

CONSULTANT CERTIFIES THAT:
i. No Federal appropriate funds have been paid or will be paid, by or on behalf of CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, in the making of any cooperative agreement, or in the extension, continuation renewal, amendment, or modification of any federal contract, grant, loan or cooperative agreement.
ii. If any funds other than federal appropriate funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee or any agency, Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, CONSULTANT shall complete and submit Standard Form-LLL, “Disclosures Form to Report Lobbying”, in accordance with its instructions.

iii. CONSULTANT shall require that the language of this certificate be included in all subcontracts and that all subcontractors shall certify and disclose accordingly.

B. County of Los Angeles Requirement:

CONSULTANT certifies that:
i. It is understood that each person/entity/firm who applies for a Community Development Commission contract, and as part of that process, shall certify that they are familiar with the requirements of Los Angeles County Chapter 2.160, (Los Angeles County
Ordinance 93-0031) and;
ii. That all persons/entities/firms acting on behalf of the above named firm have and will comply with the County Code, and;
iii. That any person/entity/firm who seeks a contract with Community Development Commission shall be disqualified therefrom and denied the contract, and shall be liable in civil action, if any lobbyist, lobbying firm, lobbyist employer or any other person or entity acting on behalf of the above named firm fails to comply with the provisions of the County Code.

6.11 COOPERATION; FURTHER ACTS: The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as is reasonably necessary, appropriate or convenient to achieve the purposes of this Agreement.

6.12 SUBCONTRACTING: CONSULTANT shall not subcontract any portion of the Work required by this Agreement, except as expressly stated herein, without the prior written approval of CITY. Subcontracts (including without limitation subcontracts with subconsultants), if any, shall contain a provision making them subject to all provisions stipulated in this Agreement, including provisions relating to insurance requirements and indemnification.

6.13 CITY’S RIGHT TO EMPLOY OTHER CONSULTANTS: CITY reserves the right to employ other contractors in connection with the various projects worked upon by CONSULTANT.

6.14 PROHIBITED INTERESTS: CONSULTANT warrants, represents and maintains that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this Agreement. Further, CONSULTANT warrants and represents that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CONSULTANT, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty,

CITY shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of CITY, during the term of his or her service with CITY, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

6.15 TIME IS OF THE ESSENCE: Time is of the essence for each and every provision of this Agreement.

6.16 GOVERNING LAW AND VENUE: This Agreement shall be interpreted and governed according to the laws of the State of California. In the event of litigation between the Parties, venue, without exception, shall be in the Los Angeles County Superior Court of the State of California. If, and only if, applicable law requires that all or part of any such litigation be tried exclusively in federal court, venue, without exception, shall be in the Central District of California located in the City of Los Angeles, California.

6.17 ATTORNEYS’ FEES: If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.

6.18 SUCCESSORS AND ASSIGNS: This Agreement shall be binding on the successors and assigns of the Parties.

6.19 NO THIRD PARTY BENEFIT: There are no intended third party beneficiaries of any right or obligation assumed by the Parties. All rights and benefits under this Agreement inure exclusively to the Parties.

6.20 CONSTRUCTION OF AGREEMENT: This Agreement shall not be construed in favor of, or against, either Party but shall be construed as if the Parties prepared this Agreement together through a process of negotiation and with the advice of their respective attorneys.

6.21 SEVERABILITY: If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

6.22 AMENDMENT; MODIFICATION: No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to CITY approval. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid.

6.23 CAPTIONS: The captions of the various articles, sections and paragraphs are for convenience and ease of reference only, and do not define, limits, augment, or describe the scope, content, or intent of this Agreement.

6.24 INCONSISTENCIES OR CONFLICTS: In the event of any conflict or inconsistency between the provisions of this Agreement and any of the exhibits attached hereto, the provisions of this Agreement shall control.

6.25 ENTIRE AGREEMENT: This Agreement including all attached exhibits is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed herein and supersedes all other agreements or understandings, whether oral or written, or entered into between CITY and CONSULTANT prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid or binding. No amendment, modification or supplement to this Agreement shall be valid and binding unless in writing and duly executed by the Parties pursuant to Section 6.22, above.

6.26 COUNTERPARTS: .This Agreement shall be executed in three (3) original counterparts each of which shall be of equal force and effect. No handwritten or typewritten amendment, modification or supplement to any one counterparts shall be valid or binding unless made to all three counterparts in conformity with Section 6.16, above. One fully executed original counterpart shall be delivered to CONSULTANT and the remaining two original counterparts shall be retained by CITY.
[SIGNATURE PAGE TO FOLLOW]

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first appearing in this Agreement, above.

CITY OF CUDAHY:

By:

Alfonso Noyola, City Manager
Date:

TRANSTECH ENGINEERS, INC.:

By:

Ali Cayir, Principal
Date:

ATTEST:

By:

Richard Iglesias, City Clerk
Date:

APPROVED AS TO FORM:

By:

Victor Ponto, City Attorney
Date:

EXHIBIT A

SCOPE OF WORK FEE SCHEDULE
Scope of Work
Project management is the discipline of planning, organizing, securing and managing resources to achieve specific goals as defined by the project specifications. The primary responsibility of the project manager is to achieve all of the project goals and objectives while honoring constraints. The primary constraints are scope, time and budget.

The Scope of Work includes the On Call Project Management Services for the CITY’s CIP and CDBG infrastructure related projects. The Project Manager will be required at a minimum to perform the following duties:
• Construction coordination, including time schedules, change orders and problem solving;
• Interagency and contractor coordination with CITY, the Architect, Health, Safety, Fire and others as required;
• Prepare revised cost estimates as components of the design and other requirement of the Project developed during planning and design phases of the Project;
• Provide detailed engineering review at appropriate intervals during the design phase of the Project;
• Provide detailed constructability reviews at appropriate intervals during the design phase of the Project;
• Provide detailed constructability reviews at appropriate intervals during the design phase of an Assigned Project;
• Validate the existing budgets of each Project against the Scope of Work of the Project;
• Assist with securing the permits necessary for the Project; • Assist in the preparation of bid documents;
• Maintain daily and weekly records of construction activities, job costs, schedule developments, project related meetings and project communications; • Report in person and in writing, at regular intervals and at special need times, to CITY;
• Conduct weekly jobsite meetings for contractors and CITY personnel and distribute meeting minutes;

• Coordinate all work schedules with CITY;
• Facilitate review by the architect, engineers and CITY of contractor submitted questions or product information
• Conduct pre-construction and regular jobsite progress meetings; • Provide continuous onsite Construction Management
• Oversee Quality Assurance of the construction activities to conform to plans and specifications;
• Review contractor's schedule, submittals for conformance to master schedule and contractor documents;
• Maintain all project documents, drawings, contract change orders, contractor submittals, shop drawing and correspondence (electronic and hard copy); • Establish and implement procedures for review and processing of all Project documentation;
• Maintain RFI, submittal and change order logs;
• Coordinate lead and/or asbestos abatement, hazardous materials; • Coordinate the activities of the DSA Project Inspector along with filing of appropriate reports;
• Evaluate construction progress and maintain reports;
• Receive contractor payment application, review for accuracy (amount due, certified payroll, appropriate rate, etc.) and circulate to DSA Project Inspector, architect and CITY for their review, signature and approval (five working days); • Process change orders and payment applications for acceptance by CITY; • Coordinate change order process
• Oversee the construction safety and performance of all contractors; • Establish, implement, and maintain a "Safety Program" to comply with regulatory requirements and CITY policies;
• Secure a copy of the contractor's safety plan;
• Oversee the use of temporary fencing and "personnel control systems" to keep construction workers apart from CITY foot traffic;
• Compile detailed "punch lists" with the architect;
• Coordinate closeout procedures;
• Oversee the complete performance of all punch list items and final clean-up before contractor moves off site;
• Administer post-construction training of custodial, maintenance, operations and grounds staff for all new equipment, systems and finish materials;

• Obtain from contractor all record (as-built) drawings; contract required documents, lien releases, and written warrantees. Review and circulate to CITY for final acceptance;
• Coordinate final testing, documentation and regulatory inspections; • Advise on substantial and final completion;
• Compile final review of the Project;
• Advise on final payment;
• Provide CITY with complete project documentation for permanent records/storage; and
• Evaluate any contractor claim.

Additionally, the Scope of Work includes design development, preparation of construction documents, project bidding, and construction support for CIP or CDBG infrastructure related projects.

(INSERT PDF OF FEE SCHEDULE)

EXHIBIT B

PROJECT MANAGEMENT SERVICES RFP

SUMMARY SHEET
Firm Name
Firm Parent or Ownership:

Firm Address: __________________________________________________________ ______________________________________________________________________ Firm Telephone Number: _____________________ Fax Number: _________________ Firm Email Address: _____________________________________________________ Firm Website: __________________________________________________________ Number of years in existence: _____________________
Management Contact (person authorized to sign an agreement for the firm; and ultimately responsible for services required for this Request for Proposal:

Name: _____________________________________ Title: ______________________ Telephone Number: __________________________ Fax: ______________________ Email: ________________________________________________________________ Types of series provided by your firm: _______________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________

EXHIBIT C

PROJECT MANAGEMENT SERVICES RFP
CERTIFICATION OF FIRM’S ACCEPTANCE OF CITY OF
CUDAHY’S PROFESSIONAL SERVICES AGREEMENT AND
PROPOSAL FOR MODIFICATION OF TERMS (if any)
By signing this form below, the firm certifies that the attached Agreement in Appendix B is acceptable to the firm and will be signed upon selection of the firm to perform consulting services for the City of Cudahy, except for request for modification of the agreement (if any), as specifically described below (or listing modifications by number that refer to attached sheets if necessary).

Name and Signature of Firm’s Management Representative authorized to sign an agreement:

Name Title

Signature Date
Firm Name:

EXHIBIT D

PROJECT MANAGEMENT SERVICES RFP

FALSE CLAIMS FORM

CITY OF CUDAHY

CITY HALL
5220 SANTA ANA STREET
CUDAHY, CALIFORNIA 90201

FALSE CLAIMS/

FALSE CLAIMS ACT CERTIFICATION
(ON CALL DESIGN ENGINEERING SERVICES RFP)
Proposer shall provide either the certification requested below or the information requested on the next page. Failure to certify or provide the requested information may result in a determination that the Proposer is non-responsive and City may reject the proposal on this basis. Failure to fully and accurately provide the requested certification or information may result in a determination that the Proposer is not responsible and City may reject the proposal on this basis as well. “False Claims Act”, as used herein, is defined as either or both the Federal False Claims Act, 31 U.S.C. sections 3729 et seq., and the California False Claims Act, Government Code sections 12650 et seq.

FALSE CLAIMS ACT CERTIFICATION
If the Proposer has no False Claims Act violations as described above, complete the following:

I, , am the ______________________________
(Print name of person responsible for submitting proposal) (Title with proposing entity) of________________________________________________(hereinafter, “Proposer”). (Print Name of Proposing Entity)
In submitting a proposal to the City of Cudahy, I, hereby certify that neither Proposer nor any person who is an officer of, in a managing position with, or has an ownership interest in Proposer has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act as defined above.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this day of at ______________________________
(month and year) (city and state)
By
(Signature of Person Responsible for Submitting Proposal on behalf of Proposer)

FALSE CLAIMS ACT VIOLATIONS INFORMATION
(1) Date of Determination of Violation: _ _____
______________________________________________________________________ (2) Identity of tribunal or court and case name or number, if any: _________________ ______________________________________________________________________ (3) Government Contract or project involved:

(4) Government agency involved

(5) Amount of fine imposed: ______________________________________________ (6) Exculpatory Information: _______________________________________________ ______________________________________________________________________ ______________________________________________________________________

DECLARATION
I, , the _____
(Print name of person responsible for submitting proposal) (Title with proposing entity) of ________________________________________________(hereinafter, “Proposer”) (Print Name of Proposing Entity)
I declare under penalty of perjury that the above information is true and correct.

Executed this day of at ______________________________
(month and year) (city and state)
by ___________________________________________________________________ (Signature of Person Responsible for Submitting Proposal on behalf of Proposer)

EXHIBIT E

ON CALL DESIGN ENGINEERING SERVICES RFP

CIVIL LITIGATION HISTORY

CITY OF CUDAHY

CITY HALL
5220 SANTA ANA STREET
CUDAHY, CALIFORNIA 90201

CIVIL LITIGATION HISTORY/

CIVIL LITIGATION CERTIFICATION
(PROJECT MANAGEMENT SERVICES RFP)
Proposer shall provide either the certification requested below or information requested on the next page. Failure to provide such certification or information may result in a determination that the Proposer is nonresponsive. Failure to fully and accurately provide the requested certification or information may result in a determination that the Proposer is not responsible. For the five (5) years preceding the date of submittal of this Proposal, identify any civil litigation arising out of the performance of a procurement contract within the State of California in which any of the following was a named plaintiff or defendant in a lawsuit brought by or against the entity soliciting Proposals: the Proposer submitting the instant Proposal, including any person who is an officer of, or in a managing position with, or has an ownership interest in the entity submitting the Proposal. Do not include litigation which is limited solely to enforcement of mechanics' liens or stop notices. Provide on the following page labeled “Civil Litigation History Information:” (i) the name and court case identification number of each case, (ii) the jurisdiction in which it was filed, and (iii) the outcome of the litigation, e.g., whether the case is pending, a judgment was entered, a settlement was reached, or the case was dismissed.

CIVIL LITIGATION CERTIFICATION
If the Proposer has no civil litigation history to report as described above, complete the following:

I, , am the ______________________________
(Print name of person responsible for submitting Proposal) (Title with Proposing Entity) of _______________________________________________(hereinafter, “Proposer”). (Print Name of Proposing Entity)
In submitting a Proposal to the City of Cudahy for Project Management Services, I, hereby certify that neither Proposer nor any person who is an officer of, in a managing position with, or has an ownership interest in Proposer has been involved in civil litigation as described, above.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this day of at (month and year) (city and state) by
(Signature of Person Responsible for Submitting Proposal on behalf of Proposer)

CIVIL LITIGATION HISTORY INFORMATION
(1) Name of Case: _____________________________________________________ ______________________________________________________________________ (2) Court case identification number: _______________________________________ (3) Jurisdiction in which case was filed: _____________________________________ (4) Outcome of the case: ________________________________________________ ______________________________________________________________________ ______________________________________________________________________ (5) Name of Case: _____________________________________________________ ______________________________________________________________________ (6) Court case identification number: _______________________________________ (7) Jurisdiction in which case was filed: _____________________________________ (8) Outcome of the case: ________________________________________________ ______________________________________________________________________ ______________________________________________________________________

DECLARATION
I, ____, the (Print name of person responsible for submitting Proposal) (Title with Proposing Entity) of (hereinafter, “Proposer”)
(Print Name of Proposing Entity)
I declare under penalty of perjury that the above information is true and correct.

Executed this day of at ______________________________ (month and year) (city and state) by ___________________________________________________________________ (Signature of Person Responsible for Submitting Proposal on behalf of Proposer)

END OF DOCUMENT

“Serving The People "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 1 of 3

STAFF REPORT
Date: October 4, 2022
To: Honorable Mayor/Chair and City Council/Agency Members From: From: Alfonso Noyola, City Manager/Executive Director By: Aaron Hernandez-Torres P.E., Public Works Director/City Engineer Subject: Approval of Professional Services Agreement for Facility Condition Assessment, Space Utilization Analysis, and Preventive Maintenance Plan

RECOMMENDATION
City Council is requested to award a Professional Services Agreement (PSA) to Bureau Veritas to conduct a City Facility Condition Assessment, Space Utilization Analysis, and Preventive Maintenance Plan, in the amount of $61,811.95.

BACKGROUND

1. On November 1, 2021, the City issued an RFP for City Facilities Condition Assessment, Maintenance Plan, and Space Utilization Study.

2. On December 15, 2021, the proposal due date closed, and three engineering firms submitted a proposal.

3. On August 1, 2022, Bureau Veritas was notified that it was the top ranked proposal and would be recommended to Council for contract approval.

ANALYSIS
In order to address the current outdated state of City facilities, maximize space usage, and create a ten year plan to proactively maintain our facilities, the City recommends Council to approve an agreement with Bureau Veritas to conduct these three assessments for all City facilities.

The City received three (3) proposals during the RFP phase. The three submittal summaries are below:

Item Number
16B

“Serving The People "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 2 of 3

Firm Name Proposal Cost
Kitchell Corporation $309,460
Rubio Medina Architects $154,767
Bureau Veritas $61,811.95
Due to its extensive experience, expertise, cost, and ability to accurately perform the task in a timely manner, the City deemed Bureau Veritas to be the lowest, responsive, and responsible bidder. If approved, Bureau Veritas’s project scope would be as follows:

Facility Condition Assessment
The facility condition assessment (FCA) includes a comprehensive assessment of all sites, buildings, building systems, and infrastructure. It would determine the present condition and estimated life expectancy city buildings and components. It would also identify and document present conditions of all physical assets including grounds, facilities, and infrastructure.

A recommendation of corrections for all deficiencies would be provided in the assessment as well as a cost assessment for said corrections. The FCA would ultimately be a strategic plan for capital repairs, lifecycle component replacement, and building modernization.

Preventive Maintenance Plan
The maintenance plan will identify required procedures and inspections required to maintain facilities in safe, reliable and efficient conditions. The plan will be delivered in a database or spreadsheet format.

Space Utilization Study
The space utilization study will consist of conducting interviews with staff to access current and future needs. This would include building capacity to support administrative needs by assessing hiring projections, a review of building capacities, and reviewing deficiencies with respect to spaces required to support city activities and services.

The study will include space utilization charts identifying room usage, room number, existing space square footage and required square footage. Recommendations for re-utilizing space through reconfiguration of spaces will be made in this study.

CONCLUSION
The City recommends awarding a Professional Services Agreement (PSA) to Bureau Veritas to conduct a Facility Condition Assessment, Space Utilization Analysis, and Preventive Maintenance Plan, in the amount of $61,811.95.

“Serving The People "Sirviendo A La Comunidad"
Staff Report
10/04/2022 Page 3 of 3

FINANCIAL IMPACT
The cost to perform this cost is $61,822.95, funding by the American Rescue Plan Act.

ATTACHMENTS
A. City Facilities Condition Assessment, Maintenance Plan, and Space Utilization Study RFP.

B. Draft Professional Services Agreement between the City of Cudahy and Bureau Veritas.

1 CITY FACILITIES CONDITION ASSESSMENT,

MAINTENANCE PLAN, AND

SPACE UTILIZATION STUDY
SUBMISSION DEADLINE FOR WRITTEN PROPOSALS:

December 15, 2021

CITY OF CUDAHY

REQUEST FOR PROPOSAL FOR

CITY FACILITIES CONDITION ASSESSMENT,

MAINTENANCE PLAN AND SPACE UTILIZATION STUDY
Attachment A Page 438 of 507
2 I. INTRODUCTION
A. General Information
The City of Cudahy (“City”) is seeking proposals from qualified firms to perform a facilities condition assessment of 8 City-owned facilities and other City’s Infrastructure to prepare a tenyear maintenance plan based on those assessments. The Project consists of conducting a thorough assessment of the current condition of all municipal facilities including government buildings, parks and recreation facilities, parking lots and other City’s infrastructure. The assessment will concentrate on the maintenance aspect of these facilities and City-owned infrastructure and will identify any existing deficiencies and the costs to repair them and make specific recommendations for repairs both immediate and over a ten-year period.

In addition, the qualified firm shall conduct a space utilization study of City Hall and other City facilities to facilitate the maximum beneficial usage of the existing space and organization of the departments and help determine proper space requirements. There are several customer service aspects located within City Hall including Community Development, City Manager’s Office, City Clerk’s Office, Human Resources, Planning, Engineering, Public Works & Maintenance, Building and Safety, Finance, Business License, Code/ Municipal Enforcement, and Parks and Recreation.

To better serve the community, the City of Cudahy is interested in improving the overall customer service provided within the current location. The City is seeking a facilitator/ architect firm to successfully integrate several improvements including welcoming and customer service experience at City Hall, conduct a Space Utilization Study, centralize customer service related items to one location within the building, and improve security. Cudahy identifies itself on being a family oriented, friendly, and welcoming community within the Gateway Region. The City Hall Customer Service Improvements will further enrich Cudahy City’s brand and image of community focus.

The scope of work, proposal format, submittal guidelines, and evaluation and selection process are described in this Request for Proposals (“RFP”).

There is no expressed or implied obligation for the City to reimburse responding firms for any expenses incurred in preparing proposals in response to this request for proposals. Materials submitted by respondents are subject to public inspection under the California Public Records Act (Government Code Sec. 6250 et seq.), unless exempt.

To be considered, three (3) copies of a proposal must be received by City Clerk Office, located at 5220 Santa Ana Street, Cudahy, CA 90201 by 3:00 p.m. on December 15, 2021. The City reserves the right to reject any or all proposals submitted.

3 During the evaluation process, the City reserves the right, where it may serve the City’s best interest, to request additional information or clarification from Proposers, or to allow corrections of errors or omissions. At the discretion of the City, firms submitting proposals may be requested to make oral presentations as part of the evaluation process.

The City reserves the right to retain all proposals submitted and to use any idea(s) in a proposal regardless of whether that proposal is selected. Submission of a proposal indicates acceptance by the firm of the conditions contained in the request for proposals, unless clearly and specifically noted in the proposal submitted and confirmed in the contract between the City and the firm selected.

It is anticipated that City staff will complete its review of proposals and announce a recommendation to the City Council by or around February 2022. Thereafter, it is anticipated that the City Council will consider the award of a contract and approve the execution of the same early 2022 (dependent upon funding availability). The City reserves the right to reject any or all proposals, to waive any non-material irregularities or information in any proposal, and to accept or reject any items or combination of items.

II. BACKGROUND
A. City of Cudahy
The City of Cudahy is located in Southeast Los Angeles County, next to the Los Angeles River. The City was incorporated on November 10, 1960 and named after its founder, meat-packing baron Michael Cudahy. In 1908, Mr. Cudahy purchased the land known as Rancho San Antonio for development purposes. . The City is 1.23 square miles with a current population of 25,870. The City is a general law city and operates under the council-manager form of government.

B. Existing Conditions
Cudahy does not have a City facilities condition assessment nor a long range management plan in place. Since their construction, city facilities have not been remodeled and/or upgraded for code compliance. A space utilization study is also required to better accommodate city departments and provide optimum customer service to Cudahy residents. A list of all City facilities are included in Attachment B attached hereto.

4 III. SCOPE OF SERVICES
The City of Cudahy seeks qualified firms to prepare a City Facilities Condition Assessment, Maintenance Plan and Space Utilization Study. The City intends to obtain the services of a qualified company to provide the services outlined below. Best industry practices and/or best management practices may require additional services not explicitly enumerated below. Each company responding should identify any additional services required (if any) along with their costs and descriptions.

As mentioned above, Cudahy is seeking proposals from qualified firms to perform a facilities condition assessment of 8 City-owned facilities and other City’s Infrastructure to prepare a tenyear maintenance plan based on those assessments. The scope of work consists of conducting a thorough assessment of the current condition of all municipal facilities including government buildings, parks and recreation facilities, parking lots and other City’s infrastructure. The assessment will concentrate on the maintenance aspect of these facilities and will identify any existing deficiencies and the costs to repair them and make specific recommendations for repairs both immediate and over a ten-year period.

Additionally, the qualified firm shall also conduct a space utilization study of City Hall and other City facilities to facilitate the maximum beneficial usage of the existing space and organization of the departments and help determine proper space requirements.

The facilities condition assessment and maintenance plan are to be completed for the following City facilities and infrastructure (for detailed information on each site, see Attachment B attached hereto):
• City Hall Complex
• Bedwell Hall Complex
• Cudahy Park
• Clara Park Community Center Complex
• Clara Park Expansion
• Lugo Park Complex
• Cudahy River Park
• Los Angeles County Bike Path
• Elizabeth St/ Otis Ave/ Salt Lake Ave Triangle Park
• Clara Bridge
• Clara Street North & South Slopes
• Atlantic Medians
• Salt Lake Ave/ Patata St Union Pacific Easement Area

5 The required services are more particularly described in the “Scope of Work,” which is attached hereto as Attachment A.

IV. TIME REQUIREMENTS
The following is a list of key dates up relating to this Request for Proposals:

Request for Proposals issued November 1, 2021
Due date for submission of questions regarding RFP December 1, 2021 Due date for submission of proposals December 15, 2021
Anticipated Interview window with certain firms (if
needed)
January 6, 2022
City staff recommendation announced January 12, 2022
Recommendation submitted to City Council for
consideration, approval and possible award
February 1, 2022
Selected Firm Notified February 2, 2022
V. PROPOSAL FORMAT AND CONTENT
A. General Requirements

1. Inquiries concerning the Request for Proposals and the subject of the Request for Proposals must be directed to City Clerk Office at (323) 773-5143, ext. 227 or via email at [email protected].

CONTACT WITH PERSONNEL OF THE CITY OTHER THAN THE ABOVE REGARDING THIS REQUEST FOR PROPOSALS MAY BE GROUNDS FOR ELIMINATION FROM THE SELECTION PROCESS.

2. Submission of Proposal. Three (3) copies of the Proposal shall be received by the City of Cudahy by 3:00 p.m. on December 15, 2021 for a proposal to be considered.

PROPOSALS WILL NOT BE ACCEPTED THEREAFTER. All proposals received after said date and time will be returned unopened to the submitter. FAXED PROPOSALS WILL NOT BE CONSIDERED.

POSTMARKS WILL NOT BE ACCEPTED. Please note that your response becomes property of the City of Cudahy and a matter of public record. No verbal extension of any deadline shall be binding or valid upon the City. All deadline extensions authorized by the City shall be made in the form of a written addendum signed by the Community Development Manager and shall be applicable as to all proposers.

6 The Proposal should be addressed as follows:

City Clerk Office
City of Cudahy
5220 Santa Ana Street
Cudahy, CA 90201
B. Proposal Content
These instructions outline the requirements for the content of the proposal. The intent of this RFP is to encourage responses that clearly demonstrate that the Proposer understands the City’s goals and possess the necessary qualifications and experience.

1. Firm Qualifications and Experience
To qualify the firm must have extensive experience working with local governments as well as specific experience with the requested services and scope of work.

The Proposer must provide a list of any current municipal clients as well as a list of any engagements with other governmental entities to provide similar or related services to those requested in this RFP.

2. Firm’s Staff Qualifications and Experience
Identify firm’s staff, including engagement partners, managers, other supervisors and specialists who would be assigned to this engagement. Provide as much current information as possible regarding the qualifications, experience, and training of those individuals who would be assigned to work on this project, including but not limited to the following:
• Training and years of experience working on related projects • Years of municipal or another local public sector experience • Knowledge of and experience with the requested services and other relevant public sector experience
• Examples of Facilities Assessments, Maintenance Plans and Space Utilization Studies • Knowledge relating to local, state, and federal building code and other applicable regulations
• Scholastic honors publications and professional affiliations • Any additional information Proposer deems appropriate or relevant

7 3. References
Proposer shall provide a minimum of 5 references and should include any California governmental clients or public agencies for which similar services were performed. For each reference, information shall include the name of the client with current address, telephone number, e-mail address, and contact person of each client who would be most familiar with the services provided. The City reserves the right to contact any of the listed references at any time and make any other reasonable investigation into the consultant’s background and experience.

C. Cost Proposal
The cost proposal should contain all pricing information related to performing the various services and tasks contemplated under this RFP, including a breakdown of the costs for any and all reimbursable costs such as travel costs, mailing costs, fax, electronic research and any other direct or indirect costs associated with performing the required services.

The compensation proposal should include a total all-inclusive maximum bid price (hereinafter, “Not-to-Exceed-Sum) which accounts for all anticipated costs, both direct and indirect.

The cost proposal should also include a schedule of all hourly rates of compensation for all personnel assigned to perform work under this agreement with the City, broken down by title/job classification.

D. Manner of Payment
Progress payments will be made on the basis of hours of work completed during the course of the engagement and out-of-pocket expenses incurred in accordance with the firm’s proposal.

Interim billings shall cover a period of not less than a calendar month.

E. Contract Provisions
A copy of the City’s Professional Services Agreement is attached as Attachment C. Any exceptions to the terms in Attachment C shall be set forth in the proposal or the proposing firm shall be deemed to have accepted those terms. The usual Engagement Letter may be attached as an exhibit to the contract along with the Scope of Work.

VI. EVALUATION AND SELECTION PROCESS
A. Review of Proposals
City Staff, consisting at a minimum, of three (3) individuals, will evaluate submitted proposals.

8 B. Evaluation Criteria
Any contract and assignments resulting from this RFP will be made on an as-needed basis in response to a specific matter or matters. The Proposer rated to be the most responsive and responsible to all specified requirements in a quality and cost-effective manner may be awarded a contract. The following represent the principal selection criteria, which will be considered during the evaluation process.

1. Background and experience of the firm and staff in conducting similar work

2. Ability to complete the work in a timely manner

3. Accessibility and availability of firm and staff

4. Costs

5. References
As part of the evaluation process, the City may conduct interviews with those Proposers whose proposals most closely match the requirements of the RFP. Upon completion of the evaluation process, the most qualified Proposer will be contacted to finalize the Scope of Services. A draft of the City’s Professional Services Agreement is attached as Attachment C. The approved contract will be subject to Council approval.

The City of Cudahy reserves the right to reject any and all proposals should it be deemed in its best interest to do so.

VII. GENERAL TERMS AND CONDITIONS
A. Proposal Validity
The Proposer’s pricing shall be valid for a minimum of 90 days.

B. Proposal Acceptance
The City reserves the right to accept all or a portion of the Proposer’s proposal. The City reserves the right to offer the award to the overall best Proposer or split the award amongst multiple Proposers.

C. Withdrawal of Proposal before Closing
Any Proposer may request the withdrawal of their submitted proposal, either in person, by telephone, or written request, at any time prior to the scheduled closing date and time. Upon receiving the written request to withdraw any proposal, City of Cudahy will consider the

9 Proposer’s proposal null and void. Withdrawal of Proposer’s proposal will not prejudice Proposer’s re-submittal for this or any future proposal(s).

D. Interpretation of Documents
During the proposal solicitation period should a Proposer find discrepancies or omissions in the specifications of the RFP or should the Proposer be in doubt as to their interpretation, the Proposer shall immediately notify the City Clerk Office. Should it be found necessary, an addendum will be sent to all Proposers. Any addenda shall form a part of this solicitation and shall become a part of the submitted proposal.

E. Liens
The Proposer shall pay all sums of money that become due from any labor, services, materials or equipment furnished to Proposer on account of said product/services to be furnished as a result of the RFP and that may be secured by any lien against the City. The Proposer shall fully discharge such lien no later than the time of performance of the obligation.

F. Federal, State and Local Laws
The Proposer and all sub-contractors shall comply with all applicable federal, state and local laws, rules, and regulations.

10 Attachment A
Scope of Services

A) PROJECT SCOPE
The City of Cudahy seeks qualified firms to prepare a City Facilities Condition Assessment, Maintenance Plan and Space Utilization Study. The City intends to obtain the services of a qualified company to provide the services outlined below. Best industry practices and/or best management practices may require additional services not explicitly enumerated below. Each company responding should identify any additional services required (if any) along with their costs and descriptions.

The scope of work consists of conducting a thorough assessment of the current condition of all municipal facilities including government buildings, parks and recreation facilities, and infrastructure assets. The assessment will concentrate on the maintenance aspect of these facilities and will identify any existing deficiencies and the costs to repair them and make specific recommendations for repairs both immediate and over a ten-year period. This includes code compliance required upgrades (e.g. building & safety and ADA compliance), structural retrofit (including required/ voluntary seismic upgrades) and/or any other applicable upgrade as mandated by code. The Project also consists of developing a 10-year maintenance program that includes capital improvements for major building/ facilities repairs and other City’s infrastructure.

In addition, the qualified firm shall conduct a space utilization study of City Hall and other City facilities to facilitate the maximum beneficial usage of the existing space and organization of the departments and help determine proper space requirements. The scope of work includes review of similar communities with integrated municipal functions into one facility. Currently, the city Hall building hosts several municipal departments, as well as provides meeting locations for City Council meeting, and City boards and commission meetings. Citizen services and development services provided within City Hall include the following: public records request, polling/ voting locations, parking permits, planning services, building permits, public works permits, City code, business licenses and parks and recreation related sport programs and events. Community services and senior services are provided at a different City facility location.

The scope of this project shall include the successful combination of customer service-related items to one location in City Hall, streamlining and optimizing the customer service process for citizens and providing easier access for the public to reach staff. If government function(s) are

11 proposed to be moved from City Hall, the consultant shall develop alternatives for consideration.

The qualified firm will also conduct an assessment of the existing security measures in place and provide enhancements that may be necessary to improve the security in the public buildings.

B) PROJECT DELIVERABLES
The scope of services and required deliverables include the following:
1) Site Inspections: A complete facility inspection and evaluation shall be performed in order to determine the existing condition of each facility by identifying current deficiencies and immediate repairs required to the building systems in order to maintain their expected level of service. The assessment will be based on visual observations and non-destructive testing of specific mechanical, electrical and plumbing components, and visible plumbing fixtures/ piping. Site plans, floor plans and “as built” of each facility (if available) will be provided to the selected company during performance of the work. Please note that City has limited records of plans and construction documents facilities. 2) Maintenance Plan with Cost Estimates: Prepare a comprehensive facilities master plan report that identifies current deficiencies and the costs associated to repair them (the “Maintenance Report”). The Report shall also include a 10-year forecast of recommended maintenance activities and their associated costs, broken down by their main components such as plumbing, mechanical, electrical, building envelope and interior space, etc. The estimated costs are to be probable construction cost estimates that are not obtained from formal bids however, they are to be based on construction standards and exclude any markup factor to cover “soft costs” (such as project management, permitting, drawing, etc.). The Report shall include overall facility-specific recommendations for routine maintenance activities and a review of existing maintenance policies and practices along with any modifications thereof to reduce future capital costs. The 10-year forecast portion of the Report is to be submitted to the City in Excel format and the balance of the report shall be submitted in MSWord Format. 3) Space Utilization Study: Prepare a comprehensive facilities Space Utilization Study Report. The Report shall include all firms’ findings of current City Hall operations and recommended measures and improvements needed to achieve City’s goal to obtain maximum beneficial usage of the existing space and organization of the departments in order to provide enhanced customer service to Cudahy residents. Further, City Hall Customer Service Improvements shall enrich Cudahy City’s brand and image of community focus.

12 C) PROJECT REQUIREMENTS
Project requirements shall include, but not be limited to:
1) City Council Meeting Attendance: The selected firm will be required to review and comment on a draft report prepared by City staff thatsummarizes the selected company’s Report. The selected firm will be required to attend one City Council meeting to present and discuss the contents and conclusions of their Report.

13 Attachment B
City Facilities
• City Hall Complex – 5220 Santa Ana St.
o City Hall
o Library
o Garage/ Storage
o Cudahy Plaza/ Courtyard
o Employee Parking Lot
• Bedwell Hall Complex – 5240 Santa Ana St.
o Council Chambers
o Administration Offices
o Multipurpose Room
o Parking Lot (North)
• Cudahy Park – 5240 Santa Ana St.
o Storage/ Maintenance Office
o Snack Bar
o Baseball Field
o Soccer Field
o Basketball Courts
▪ Multiple Basketball Courts
▪ Single Basketball Court
o Tennis Courts
o Skate Park Area
o Playground Area
o Restrooms
o Parking Lot (South)
• Clara Park Community Center Complex – 4835 Clara St.
o Administration Area
o Senior Center
o Clara Gym
o Sheriff’s Office Sub-station
o Multipurpose Room

14 o Chamber of Commerce Room
o Clara Park
▪ Restrooms
o Parking Lot
• Clara Park Expansion – 4835 Clara St.
o Park
o Basketball Courts
o Soccer Field
o Training Area
o Storage Room
o Snack Bar
o Gazebo Area
o Playground Area
o Restrooms
• Lugo Park Complex – 7810 Otis Ave.
o Teen Center
o Fitness Center
o Emergency Operations Center
o Lugo Park
▪ Soccer Field
▪ Plaza
▪ Gazebo Area
▪ Playground Area
▪ Storage Room
▪ Snack Bar
▪ Restrooms
o Parking Lot
o City Yard
▪ Administration Offices
▪ Storage/ Maintenance Area
▪ Employee Parking Lot
• Cudahy River Park – Clara South Rd and River Rd
• Los Angeles County Bike Path – Along Los Angeles River (North to South City Limits) o Landscaping

15 o Lighting
o Entries Access
• Elizabeth St/ Otis Ave/ Salt Lake Ave Triangle Park
• Clara Bridge – Clara Street Vehicular Bridge over Los Angeles River • Clara Street North & South Slopes – Adjacent to Clara Bridge/ River Road • Atlantic Medians – North to South City Limits
• Salt Lake Ave/ Patata St Easement Area – West and South City Limits (Union Pacific Easement Strip).

16 Attachment C
Sample Agreement
DRAFT

17 2021

PROFESSIONAL SERVICES AGREEMENT
(Engagement: Consulting Services for XXXXX)
(Parties: City of Cudahy and Consultant)
THIS 2021 PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this XXth day of Month 2021 (hereinafter, the “Effective Date”), by and between the City of Cudahy, a municipal corporation (“CITY”) and Consultant. (hereinafter, “CONSULTANT”). For the purposes of this Agreement CITY and CONSULTANT may be referred to collectively by the capitalized term “Parties.” The capitalized term “Party” may refer to CITY or CONSULTANT interchangeably.

RECITALS
WHEREAS, CITY requires consulting services for XXXXX …; and WHEREAS, CITY requires as-needed assistance with XXXX …; and WHEREAS, CITY staff has determined that CONSULTANT possesses the experience, skills and training necessary to competently provide such services to CITY; and
WHEREAS, this Agreement was approved by the City Manager pursuant to his authority under Section of the Cudahy Municipal Code.

NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY and CONSULTANT agree as follows:

I.

ENGAGEMENT TERMS

1.1SCOPE OF SERVICES: Subject to the terms and conditions set forth in this Agreement CONSULTANT agrees to perform the services and tasks set forth in that certain proposal of CONSULTANT (hereinafter “Scope of Services”) which is attached and incorporated hereto as Exhibit “A.” CONSULTANT further agrees to furnish to CITY all labor, materials, tools, supplies, equipment, services, tasks and incidental and customary work necessary to competently perform and timely complete the services and

18 tasks set forth in the Scope of Services. For the purposes of this Agreement the aforementioned services and tasks set forth in the Scope of Services shall hereinafter be referred to generally by the capitalized term “Work.”

1.2TERM: This Agreement shall have a term of one (1) year commencing from the date all of the Parties have executed the Agreement (“Term”).

Nothing in this Section shall operate to prohibit or otherwise restrict the CITY’s ability to terminate this Agreement at any time for convenience or for cause as provided under section 5 of this Agreement.

1.3 COMPENSATION:

A. CONSULTANT shall perform all Work in accordance with the relevant hourly billing rate as set forth in the Scope of Services, which is attached and incorporated hereto as Exhibit “A”.

B. Section 1.3(A) notwithstanding, CONSULTANT’s total compensation for the performance of all Work contemplated, this Agreement shall not exceed the total budgeted aggregate sum of XXXXX DOLLARS ($XXXXX) (hereinafter, the “Not-to-Exceed Sum”) for the entire one (1) year term of the Agreement, unless such added expenditure is first approved by the CITY acting in consultation with the City Manager. In the event CONSULTANT’s charges are projected to exceed the Not-to-Exceed Sum prior to the expiration of this Agreement, the CITY may suspend CONSULTANT’s performance pending the CITY’s approval of any anticipated expenditures in excess of the Not-to-Exceed Sum or any other CITY approved amendment to the compensation terms of this Agreement.

1.4 PAYMENT OF COMPENSATION: Following the conclusion of each calendar month, CONSULTANT shall submit to CITY an itemized invoice indicating the services and tasks performed during the recently concluded calendar month, including services and tasks performed and the reimbursable out-of-pocket expenses incurred. If the amount of CONSULTANT’s monthly compensation is a function of hours worked by CONSULTANT’s personnel, the invoice shall indicate the number of hours worked in the recently concluded calendar month, the persons responsible for performing the Work, the rate of compensation at which such services and tasks were performed, the subtotal for each task and service performed and a grand total for all services performed. Within thirty (30) calendar days of receipt of each invoice, CITY shall notify CONSULTANT in writing of any disputed amounts included in the invoice. Within forty-five (45) calendar days of receipt of each invoice, CITY shall pay all undisputed amounts included on the invoice. CITY shall not withhold applicable taxes or other authorized deductions from payments made to CONSULTANT.

19 1.5 ACCOUNTING RECORDS: CONSULTANT shall maintain complete and accurate records with respect to all matters covered under this Agreement for a period of three (3) years after the expiration or termination of this Agreement. CITY shall have the right to access and examine such records, without charge, during normal business hours. CITY shall further have the right to audit such records, to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.

1.6 ABANDONMENT BY CONSULTANT: In the event CONSULTANT ceases to perform the Work agreed to under this Agreement or otherwise abandons the undertaking contemplated herein prior to the expiration of this Agreement or prior to completion of any or all tasks set forth in the Scope of Services, CONSULTANT shall deliver to CITY immediately and without delay, all materials, records and other work product prepared or obtained by CONSULTANT in the performance of this Agreement. Furthermore, CONSULTANT shall only be compensated for the reasonable value of the services, tasks and other work performed up to the time of cessation or abandonment, less a deduction for any damages, costs or additional expenses which CITY may incur as a result of CONSULTANT’s cessation or abandonment.

II.

PERFORMANCE OF AGREEMENT

2.1CITY’S REPRESENTATIVES: The CITY hereby designates City Manager and the Assistant City Clerk (hereinafter, the “CITY Representatives”) to act as its representative for the performance of this Agreement. The CITY Representative or his designee shall act on behalf of the CITY for all purposes under this Agreement. CONSULTANT shall not accept directions or orders from any person other than the CITY Representatives or his designee.

2.2CONSULTANT REPRESENTATIVE: CONSULTANT hereby designates XXXXX, Principal and Chairman, to act as its representative for the performance of this Agreement (hereinafter, “CONSULTANT Representative”). CONSULTANT Representative shall have full authority to represent and act on behalf of the CONSULTANT for all purposes under this Agreement. CONSULTANT Representative or his designee shall supervise and direct the performance of the Work, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Agreement. Notice to the CONSULTANT Representative shall constitute notice to CONSULTANT.

20 2.3COORDINATION OF SERVICE; CONFORMANCE WITH
REQUIREMENTS: CONSULTANT agrees to work closely with CITY staff in the performance of the Work and this Agreement and shall be available to CITY staff and the CITY Representatives at all reasonable times. All work prepared by CONSULTANT shall be subject to inspection and approval by CITY Representatives or their designees.

2.4STANDARD OF CARE; PERFORMANCE OF EMPLOYEES:

CONSULTANT represents, acknowledges and agrees to the following:

A. CONSULTANT shall perform all Work skillfully, competently and to the highest standards of CONSULTANT’s profession;
B. CONSULTANT shall perform all Work in a manner reasonably satisfactory to the CITY;
C. CONSULTANT shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.);
D. CONSULTANT understands the nature and scope of the Work to be performed under this Agreement as well as any and all schedules of performance;
E. All of CONSULTANT’s employees and agents possess sufficient skill, knowledge, training and experience to perform those services and tasks assigned to them by CONSULTANT; and
F. All of CONSULTANT’s employees and agents (including but not limited subcontractors and subconsultants) possess all licenses, permits, certificates, qualifications and approvals of whatever nature that are legally required to perform the tasks and services contemplated under this Agreement and all such licenses, permits, certificates, qualifications and approvals shall be maintained throughout the term of this Agreement and made available to CITY for copying and inspection.

The Parties acknowledge and agree that CONSULTANT shall perform, at CONSULTANT’s own cost and expense and without any reimbursement from CITY, any services necessary to correct any errors or omissions caused by CONSULTANT’s failure to comply with the standard of care set forth under this Section or by any like failure on the part of CONSULTANT’s employees, agents,

21 contractors, subcontractors and subconsultants. Such effort by CONSULTANT to correct any errors or omissions shall be commenced immediately upon their discovery by either Party and shall be completed within seven (7) calendar days from the date of discovery or such other extended period of time authorized by the CITY Representatives in writing and in their sole and absolute discretion. The Parties acknowledge and agree that CITY’s acceptance of any work performed by CONSULTANT or on CONSULTANT’s behalf shall not constitute a release of any deficiency or delay in performance. The Parties further acknowledge, understand and agree that CITY has relied upon the foregoing representations of CONSULTANT, including but not limited to the representation that CONSULTANT possesses the skills, training, knowledge and experience necessary to perform the Work skillfully, competently and to the highest standards of CONSULTANT’s profession.

2.5ASSIGNMENT: The skills, training, knowledge and experience of CONSULTANT are material to CITY’s willingness to enter into this Agreement. Accordingly, CITY has an interest in the qualifications and capabilities of the person(s) who will perform the services and tasks to be undertaken by CONSULTANT or on behalf of CONSULTANT in the performance of this Agreement. In recognition of this interest, CONSULTANT agrees that it shall not assign or transfer, either directly or indirectly or by operation of law, this Agreement or the performance of any of CONSULTANT’s duties or obligations under this Agreement without the prior written consent of the CITY. In the absence of CITY’s prior written consent, any attempted assignment or transfer shall be ineffective, null and void and shall constitute a material breach of this Agreement.

2.6CONTROL AND PAYMENT OF SUBORDINATES; INDEPENDENT
CONTRACTOR: The Work shall be performed by CONSULTANT or under CONSULTANT’s strict supervision. CONSULTANT will determine the means, methods and details of performing the Work subject to the requirements of this Agreement. CITY retains CONSULTANT on an independent contractor basis and not as an employee. CONSULTANT reserves the right to perform similar or different services for other principals during the term of this Agreement, provided such work does not unduly interfere with CONSULTANT’s competent and timely performance of the Work contemplated under this Agreement and provided the performance of such services does not result in the unauthorized disclosure of CITY’s confidential or proprietary information. Any additional personnel performing the Work under this Agreement on behalf of CONSULTANT are not employees of CITY and shall at all times be under CONSULTANT’s exclusive direction and control. CONSULTANT shall pay all wages, salaries and other amounts due such personnel and shall assume responsibility for all benefits, payroll taxes, Social Security and Medicare payments and the

22 like. CONSULTANT shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: Social Security taxes, income tax withholding, unemployment insurance, disability insurance, workers’ compensation insurance and the like.

2.7REMOVAL OF EMPLOYEES OR AGENTS: If any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants is determined by the CITY Representatives to be uncooperative, incompetent, a threat to the adequate or timely performance of the tasks assigned to CONSULTANT, a threat to persons or property, or if any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants fail or refuse to perform the Work in a manner acceptable to the CITY, such officer, employee, agent, contractor, subcontractor or subconsultant shall be promptly removed by CONSULTANT and shall not be re-assigned to perform any of the Work.

2.8COMPLIANCE WITH LAWS: CONSULTANT shall keep itself informed of and in compliance with all applicable federal, State or local laws to the extent such laws control or otherwise govern the performance of the Work.

CONSULTANT’s compliance with applicable laws shall include without limitation compliance with all applicable Cal/OSHA requirements.

2.9NON-DISCRIMINATION: In the performance of this Agreement, CONSULTANT shall not discriminate against any employee, subcontractor, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition.

2.10. INDEPENDENT CONTRACTOR STATUS: The Parties
acknowledge, understand and agree that CONSULTANT and all persons retained or employed by CONSULTANT are, and shall at all times remain, wholly independent contractors and are not officials, officers, employees, departments or subdivisions of CITY. CONSULTANT shall be solely responsible for the negligent acts and/or omissions of its employees, agents, contractors, subcontractors and subconsultants. CONSULTANT and all persons retained or employed by CONSULTANT shall have no authority, express or implied, to bind CITY in any manner, nor to incur any obligation, debt or liability of any kind on behalf of, or against, CITY, whether by contract or otherwise, unless such authority is expressly conferred to CONSULTANT under this Agreement or is otherwise expressly conferred by CITY in writing.

III.

INSURANCE

23 3.1 DUTY TO PROCURE AND MAINTAIN INSURANCE: Prior to the beginning of and throughout the duration of the Work, CONSULTANT will procure and maintain policies of insurance that meet the requirements and specifications set forth under this Article. CONSULTANT shall procure and maintain the following insurance coverage, at its own expense:

A. Commercial General Liability Insurance: CONSULTANT shall procure and maintain Commercial General Liability Insurance (“CGL Coverage”) as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) or its equivalent. Such CGL Coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the general aggregate for bodily injury, personal injury, property damage, operations, products and completed operations, and contractual liability.

B. Automobile Liability Insurance: CONSULTANT shall procure and maintain Automobile Liability Insurance as broad as Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). Such Automobile Liability Insurance shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per accident for bodily injury and property damage.

C. Workers’ Compensation Insurance/ Employer’s Liability Insurance: A policy of workers’ compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both CONSULTANT and CITY against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by CONSULTANT in the course of carrying out the Work contemplated in this Agreement.

D. Errors & Omissions Insurance: For the full term of this Agreement and for a period of three (3) years thereafter, CONSULTANT shall procure and maintain Errors and Omissions Liability Insurance appropriate to CONSULTANT’s profession. Such coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per occurrence and shall be endorsed to include contractual liability.

3.2 ADDITIONAL INSURED REQUIREMENTS: The CGL Coverage and the Automobile Liability Insurance shall contain an endorsement naming the CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers as additional insureds.

24 3.3 REQUIRED CARRIER RATING: All varieties of insurance required under this Agreement shall be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance shall be procured from insurers who, according to the latest edition of the Best’s Insurance Guide, have an A.M. Best’s rating of no less than A:VII. CITY may also accept policies procured by insurance carriers with a Standard & Poor’s rating of no less than BBB according to the latest published edition the Standard & Poor’s rating guide. As to Workers’ Compensation Insurance/ Employer’s Liability Insurance, the CITY Representatives are authorized to authorize lower ratings than those set forth in this Section.

3.4 PRIMACY OF CONSULTANT’S INSURANCE: All policies of insurance provided by CONSULTANT shall be primary to any coverage available to CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers. Any insurance or self-insurance maintained by CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.

3.5 WAIVER OF SUBROGATION: All insurance coverage provided pursuant to this Agreement shall not prohibit CONSULTANT or CONSULTANT’s officers, employees, agents, subcontractors or subconsultants from waiving the right of subrogation prior to a loss. CONSULTANT hereby waives all rights of subrogation against CITY.

3.6 VERIFICATION OF COVERAGE: CONSULTANT acknowledges, understands and agrees, that CITY’s ability to verify the procurement and maintenance of the insurance required under this Article is critical to safeguarding CITY’s financial well-being and, indirectly, the collective well-being of the residents of the CITY.

Accordingly, CONSULTANT warrants, represents and agrees that its shall furnish CITY with original certificates of insurance and endorsements evidencing the coverage required under this Article on forms satisfactory to CITY in its sole and absolute discretion. The certificates of insurance and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the CITY if requested. All certificates of insurance and endorsements shall be received and approved by CITY as a condition precedent to CONSULTANT’s commencement of any work or any of the Work. Upon CITY’s written request, CONSULTANT shall also provide CITY with certified copies of all required insurance policies and endorsements.

IV.

INDEMNIFICATION

25 4.1 The Parties agree that CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers (hereinafter, the “CITY Indemnitees”) should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost arising out of or in any way related to the performance of this Agreement.

Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the CITY Indemnitees with the fullest protection possible under the law. CONSULTANT acknowledges that CITY would not enter into this Agreement in the absence of CONSULTANT’s commitment to indemnify, defend and protect CITY as set forth herein.

4.2 To the fullest extent permitted by law, CONSULTANT shall indemnify, hold harmless and defend the CITY Indemnitees from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONSULTANT’s performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole negligence or willful misconduct of the CITY.

4.3 CITY shall have the right to offset against the amount of any compensation due to CONSULTANT under this Agreement any amount due CITY from CONSULTANT as a result of CONSULTANT’s failure to pay CITY promptly any indemnification arising under this Article and related to CONSULTANT’s failure to either (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.

4.4 The obligations of CONSULTANT under this Article will not be limited by the provisions of any workers’ compensation act or similar act. CONSULTANT expressly waives its statutory immunity under such statutes or laws as to CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers.

4.5 CONSULTANT agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Article from each and every subcontractor 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 herein, CONSULTANT agrees to be fully responsible and indemnify, hold harmless and defend CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of CONSULTANT’s subcontractors or any other person or entity

26 involved by, for, with or on behalf of CONSULTANT in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of CITY’s choice.

4.6 CITY does not, and shall not, waive any rights that it may possess against CONSULTANT because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.

4.7 This Article and all provisions contained herein (including but not limited to the duty to indemnify, defend and hold free and harmless) shall survive the termination or normal expiration of this Agreement and is in addition to any other rights or remedies which the CITY may have at law or in equity.

V.

TERMINATION

5.1 TERMINATION WITHOUT CAUSE: CITY may terminate this Agreement at any time for convenience and without cause by giving CONSULTANT a minimum of five (5) calendar days prior written notice of CITY’s intent to terminate this Agreement. Upon such termination for convenience, CONSULTANT shall be compensated only for those services and tasks which have been performed by CONSULTANT up to the effective date of the termination. CONSULTANT may not terminate this Agreement except for cause as provided under Section 5.2, below. If this Agreement is terminated as provided herein, CITY may require CONSULTANT to provide all finished or unfinished Documents and Data, as defined in Section 6.1 below, and other information of any kind prepared by CONSULTANT in connection with the performance of the Work. CONSULTANT shall be required to provide such Documents and Data within fifteen (15) calendar days of CITY’s written request. No actual or asserted breach of this Agreement on the part of CITY pursuant to Section 5.2, below, shall operate to prohibit or otherwise restrict CITY’s ability to terminate this Agreement for convenience as provided under this Section.

5.2 EVENTS OF DEFAULT; BREACH OF AGREEMENT:

A. In the event either Party fails to perform any duty, obligation, service or task

27 set forth under this Agreement (or fails to timely perform or properly perform any such duty, obligation, service or task set forth under this Agreement), an event of default (hereinafter, “Event of Default”) shall occur. For all Events of Default, the Party alleging an Event of Default shall give written notice to the defaulting Party (hereinafter referred to as a “Default Notice”) which shall specify: (i) the nature of the Event of Default; (ii) the action required to cure the Event of Default; (iii) a date by which the Event of Default shall be cured, which shall not be less than the applicable cure period set forth under Sections 5.2.B and 5.2.C below or if a cure is not reasonably possible within the applicable cure period, to begin such cure and diligently prosecute such cure to completion. The Event of Default shall constitute a breach of this Agreement if the defaulting Party fails to cure the Event of Default within the applicable cure period or any extended cure period allowed under this Agreement.

B. CONSULTANT shall cure the following Events of Defaults within the following time periods:
i. Within ten (10) business days of CITY’s issuance of a Default Notice for any failure of CONSULTANT to timely provide CITY or CITY’s employees or agents with any information and/or written reports, documentation or work product which CONSULTANT is obligated to provide to CITY or CITY’s employees or agents under this Agreement.

Prior to the expiration of the 10-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 10-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2.B.i. that exceeds seven (7) calendar days from the end of the initial 3-day cure period; or ii. Within fourteen (14) calendar days of CITY’s issuance of a Default Notice for any other Event of Default under this Agreement. Prior to the expiration of the 14-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 14-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2.B.ii that exceeds thirty (30) calendar days from the end of the initial 14-day cure period.

28 In addition to any other failure on the part of CONSULTANT to perform any duty, obligation, service or task set forth under this Agreement (or the failure to timely perform or properly perform any such duty, obligation, service or task), an Event of Default on the part of CONSULTANT shall include, but shall not be limited to the following: (i) CONSULTANT’s refusal or failure to perform any of the services or tasks called for under the Scope of Services; (ii) CONSULTANT’s failure to fulfill or perform its obligations under this Agreement within the specified time or if no time is specified, within a reasonable time; (iii) CONSULTANT’s and/or its employees’ disregard or violation of any federal, state, local law, rule, procedure or regulation; (iv) the initiation of proceedings under any bankruptcy, insolvency, receivership, reorganization, or similar legislation as relates to CONSULTANT, whether voluntary of involuntary; (v) CONSULTANT’s refusal or failure to perform or observe any covenant, condition, obligation or provision of this Agreement; and/or (vi) CITY’s discovery that a statement representation or warranty by CONSULTANT relating to this Agreement is false, misleading or erroneous in any material respect.

C. CITY shall cure any Event of Default asserted by CONSULTANT within forty-five (45) calendar days of CONSULTANT’s issuance of a Default Notice, unless the Event of Default cannot reasonably be cured within the 45-day cure period. Prior to the expiration of the 45-day cure period, CITY may submit a written request for additional time to cure the Event of Default upon a showing that CITY has commenced its efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 45-day cure period. The foregoing notwithstanding, an Event of Default dealing with CITY’s failure to timely pay any undisputed sums to CONSULTANT as provided under Section 1.4, above, shall be cured by CITY within five (5) calendar days from the date of CONSULTANT’s Default Notice to CITY.

D. CITY, in its sole and absolute discretion, may also immediately suspend CONSULTANT’s performance under this Agreement pending
CONSULTANT’s cure of any Event of Default by giving CONSULTANT written notice of CITY’s intent to suspend CONSULTANT’s performance (hereinafter, a “Suspension Notice”). CITY may issue the Suspension Notice at any time upon the occurrence of an Event of Default. Upon such suspension, CONSULTANT shall be compensated only for those services and tasks which have been rendered by CONSULTANT to the reasonable satisfaction of CITY up to the effective date of the suspension. No actual or asserted breach of this Agreement on the part of CITY shall operate to

29 prohibit or otherwise restrict CITY’s ability to suspend this Agreement as provided herein.

E. No waiver of any Event of Default or breach under this Agreement shall constitute a waiver of any other or subsequent Event of Default or breach.

No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

F. The duties and obligations imposed under this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. In addition to any other remedies available to CITY at law or under this Agreement in the event of any breach of this Agreement, CITY, in its sole and absolute discretion, may also pursue any one or more of the following remedies:
i. Upon written notice to CONSULTANT, the CITY may immediately terminate this Agreement in whole or in part;
ii. Upon written notice to CONSULTANT, the CITY may extend the time of performance;
iii. The CITY may proceed by appropriate court action to enforce the terms of the Agreement to recover damages for CONSULTANT’s breach of the Agreement or to terminate the Agreement; or
iv. The CITY may exercise any other available and lawful right or remedy.

CONSULTANT shall be liable for all legal fees plus other costs and expenses that CITY incurs upon a breach of this Agreement or in the CITY’s exercise of its remedies under this Agreement.

G. In the event CITY is in breach of this Agreement, CONSULTANT’s sole remedy shall be the suspension or termination of this Agreement and/or the recovery of any unpaid sums lawfully owed to CONSULTANT under this Agreement for completed services and tasks.

30 5.3 SCOPE OF WAIVER: No waiver of any default or breach under this Agreement shall constitute a waiver of any other default or breach, whether of the same or other covenant, warranty, agreement, term, condition, duty or requirement contained in this Agreement. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

5.4 SURVIVING ARTICLES, SECTIONS AND PROVISIONS: The termination of this Agreement pursuant to any provision of this Article or by normal expiration of its term or any extension thereto shall not operate to terminate any Article, Section or provision contained herein which provides that it shall survive the termination or normal expiration of this Agreement.

VI.

MISCELLANEOUS PROVISIONS

6.1 DOCUMENTS & DATA; LICENSING OF INTELLECTUAL PROPERTY: All Documents and Data shall be and remain the property of CITY without restriction or limitation upon their use or dissemination by CITY. For purposes of this Agreement, the term “Documents and Data” means and includes all reports, analyses, correspondence, plans, drawings, designs, renderings, specifications, notes, summaries, strategies, charts, schedules, spreadsheets, calculations, lists, data compilations, documents or other materials developed and/or assembled by or on behalf of CONSULTANT in the performance of this Agreement and fixed in any tangible medium of expression, including but not limited to Documents and Data stored digitally, magnetically and/or electronically. This Agreement creates, at no cost to CITY, a perpetual license for CITY to copy, use, reuse, disseminate and/or retain any and all copyrights, designs, and other intellectual property embodied in all Documents and Data. CONSULTANT shall require all subcontractors and subconsultants working on behalf of CONSULTANT in the performance of this Agreement to agree in writing that CITY shall be granted the same right to copy, use, reuse, disseminate and retain Documents and Data prepared or assembled by any subcontractor or subconsultant as applies to Documents and Data prepared by CONSULTANT in the performance of this Agreement.

6.2 CONFIDENTIALITY: 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 prior written consent by CITY. CITY shall grant such consent if disclosure is legally required. Upon request, all CITY data shall be returned to CITY upon the

31 termination or expiration of this Agreement. CONSULTANT shall not use CITY’s name or insignia, photographs, or any publicity pertaining to the Work in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of CITY.

6.3 FALSE CLAIMS ACT: CONSULTANT warrants and represents that neither CONSULTANT nor any person who is an officer of, in a managing position with, or has an ownership interest in CONSULTANT has been determined by a court or tribunal of competent jurisdiction to have violated the False Claims Act, 31 U.S.C., Section 3789 et seq. and the California False Claims Act, Government Code Section 12650 et seq.

6.4 NOTICES: All notices permitted or required under this Agreement shall be given to the respective Parties at the following addresses, or at such other address as the respective Parties may provide in writing for this purpose:

Such notices shall be deemed effective when personally delivered or successfully transmitted by facsimile as evidenced by a fax confirmation slip or when mailed, forty-eight (48) hours after deposit with the United States Postal Service, first class postage prepaid and addressed to the Party at its applicable address.

CONSULTANT: CITY:

City of Cudahy
City Manager’s Office
5220 Santa Ana Street
Cudahy, CA 90201
Attn: Alfonso Noyola, ICMA-CM
City Manager
Phone: 323-773-5143

32 6.5 COOPERATION; FURTHER ACTS: The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as is reasonably necessary, appropriate or convenient to achieve the purposes of this Agreement.

6.6 SUBCONTRACTING: CONSULTANT shall not subcontract any portion of the Work required by this Agreement, except as expressly stated herein, without the prior written approval of CITY. Subcontracts (including without limitation subcontracts with subconsultants), if any, shall contain a provision making them subject to all provisions stipulated in this Agreement, including provisions relating to insurance requirements and indemnification.

6.7 CITY’S RIGHT TO EMPLOY OTHER CONSULTANTS: CITY reserves the right to employ other contractors in connection with the various projects worked upon by CONSULTANT.

6.8 PROHIBITED INTERESTS: CONSULTANT warrants, represents and maintains that it has not employed nor retained any company or person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this Agreement. Further, CONSULTANT warrants and represents that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for CONSULTANT, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, CITY shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of CITY, during the term of his or her service with CITY, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

6.9 TIME IS OF THE ESSENCE: Time is of the essence for each and every provision of this Agreement.

6.10 GOVERNING LAW AND VENUE: This Agreement shall be interpreted and governed according to the laws of the State of California. In the event of litigation between the Parties, venue, without exception, shall be in the Los Angeles County Superior Court of the State of California. If, and only if, applicable law requires that all or part of any such litigation be tried exclusively in federal court, venue, without exception, shall be in the Central District of California located in the City of Los Angeles, California.

6.11 ATTORNEYS’ FEES: If either Party commences an action against the other Party,

33 either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and all other costs of such action.

6.12 SUCCESSORS AND ASSIGNS: This Agreement shall be binding on the successors and assigns of the Parties.

6.13 NO THIRD PARTY BENEFIT: There are no intended third party beneficiaries of any right or obligation assumed by the Parties. All rights and benefits under this Agreement inure exclusively to the Parties.

6.14 CONSTRUCTION OF AGREEMENT: This Agreement shall not be construed in favor of, or against, either Party but shall be construed as if the Parties prepared this Agreement together through a process of negotiation and with the advice of their respective attorneys.

6.15 SEVERABILITY: If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.

6.16 AMENDMENT; MODIFICATION: No amendment, modification or supplement of this Agreement shall be valid or binding unless executed in writing and signed by both Parties, subject to CITY approval. The requirement for written amendments, modifications or supplements cannot be waived and any attempted waiver shall be void and invalid.

6.17 CAPTIONS: The captions of the various articles, sections and paragraphs are for convenience and ease of reference only, and do not define, limits, augment, or describe the scope, content, or intent of this Agreement.

6.18 INCONSISTENCIES OR CONFLICTS: In the event of any conflict or inconsistency between the provisions of this Agreement and any of the exhibits attached hereto, the provisions of this Agreement shall control.

6.19 ENTIRE AGREEMENT: This Agreement including all attached exhibits is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed herein and supersedes all other agreements or understandings, whether oral or written, or entered into between CITY and

34 CONSULTANT prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid or binding. No amendment, modification or supplement to this Agreement shall be valid and binding unless in writing and duly executed by the Parties pursuant to Section 6.15, above.

6.20 COUNTERPARTS: This Agreement shall be executed in three (3) original counterparts each of which shall be of equal force and effect. No handwritten or typewritten amendment, modification or supplement to any one counterparts shall be valid or binding unless made to all three counterparts in conformity with Section

6.16, above. One fully executed original counterpart shall be delivered to CONSULTANT and the remaining two original counterparts shall be retained by CITY.
[SIGNATURES ON NEXT PAGE]

35 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the day and year first appearing in this Agreement, above.

CITY OF CUDAHY
By:

Alfonso Noyola, ICMA-CM
City Manager
Date:

CONSULTANT.

By:

Name:

Title
Date:

ATTEST:

By:

Richard Iglesias, CMC
City Clerk
Date:

APPROVED AS TO FORM:

By:

Victor Ponto
City Attorney
Date:

36 Exhibit A
Scope of Services

37 Exhibit B
Proposal

38 Exhibit C
County Lobbyist Certification

39 Exhibit D
Reimbursement Invoice

40 Exhibit E
Certificate of Insurance

PROFESSIONAL SERVICES AGREEMENT
(Engagement: City Facilities Condition Assessment, Maintenance Plan and Space Utilization Study)
(Parties: City of Cudahy – Bureau Veritas)
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into this 4 day of October, 2022 (hereinafter, the “Effective Date”), by and between the CITY OF CUDAHY, a municipal corporation (“CITY”) and Bureau Veritas (“CONSULTANT”). For the purposes of this Agreement CITY and CONSULTANT may be referred to collectively by the capitalized term “Parties.” The capitalized term “Party” may refer to CITY or CONSULTANT interchangeably.

WHEREAS, CITY wishes to engage CONSULTANT to provide the following specialized services: On-Call Project Management and Project Design; and WHEREAS, CITY’s in-house personnel is presently unable to perform the specialized services and tasks contemplated under this Agreement; and WHEREAS, CONSULTANT possesses the specialized training, skill, expertise and experience required to perform the services contemplated under this Agreement; and
WHEREAS, CONSULTANT agrees to perform the various services and tasks set forth under this Agreement subject to the terms and conditions set forth herein; and NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, CITY and CONSULTANT agree as follows:

I.

ENGAGEMENT TERMS

1.1 SCOPE OF SERVICES: Subject to the terms and conditions set forth in this Agreement and all exhibits attached and incorporated hereto, CONSULTANT agrees to perform the services and tasks set forth in Exhibit “A” (hereinafter referred to as the “Scope of Services”). CONSULTANT further agrees to furnish to CITY all labor, materials, tools, supplies, equipment, services, tasks and incidental and customary work necessary to competently perform and timely complete the services and tasks set forth in the Scope of Services. For the purposes of this Agreement the aforementioned services and tasks set forth in the Scope of Services shall hereinafter be referred to generally by the capitalized term “Work.”
Attachment B Page 478 of 507

1.2 TERM: This Agreement shall have a term until project completion, estimated to be three months from October 4, 2022 (“EFFECTIVE DATE”) unless earlier terminated as provided elsewhere in this Agreement. Nothing in this Section shall operate to prohibit or otherwise restrict the CITY’s ability to terminate this Agreement at any time for convenience or for cause.

1.3 COMPENSATION:

A. CONSULTANT shall perform the various services and tasks set forth in the Scope of Services in accordance with the compensation schedule (hereinafter, the “Approved Rate Schedule”) which is found in Exhibit A.

B. CONSULTANT agrees that CONSULTANT shall perform the Services during the course of the term set forth in Section 1.3(A), above, at rate of compensation that shall not exceed Sixth One Thousand Eight Hundred Eleven Dollars and Ninety-Five Cents ($61,811.95.) (hereinafter, the “Contract Price”). The Parties agree that the Contract Price includes compensation for all labor, materials, tools, supplies, equipment, services, tasks, costs and incidental and customary work necessary to competently perform Services as well as compensation for all specifically delineated expenses set forth in the Scope of Work. In no event shall the total compensation and costs payable to CONSULTANT under this Agreement exceed the Contract Price unless the availability of funds for the added expenditure is first reviewed by the Finance Division of the City of Cudahy and unless such added expenditure is specifically approved in advance and in writing by the CITY.

C. Sections 1.3(A) and 1.3(B) notwithstanding, as needed, CONSULTANT shall be requested to submit a proposed budget for each project to be approved by the City Manager for project management and design services. In the event CONSULTANT’s charges are projected to exceed the proposed budget prior to the expiration of the Term or any single extension term, CITY may suspend CONSULTANT’s performance pending CITY approval of any anticipated expenditures in excess of the budget amount or any other CITY-approved amendment to the compensation terms of this Agreement.

1.4 PAYMENT OF COMPENSATION:

A. CITY shall compensate CONSULTANT on a monthly basis for all services rendered and tasks performed by CONSULTANT during the preceding month. At the end of each month during the term of this Agreement, CONSULTANT shall submit to CITY a monthly itemized statement(s) that lists and reasonably describes the specific services rendered and/or tasks performed and the number of personnel hours devoted to such effort; the date(s) upon which such services and/or tasks were performed; and the

name of the person(s) performing the service or task along with their applicable hourly billing rate.

B. Within fifteen (15) business days of receipt of each invoice, CITY shall notify CONSULTANT in writing of any disputed amounts included in the invoice. Within forty-five (45) calendar days of receipt of each invoice, CITY shall pay all undisputed amounts included on the invoice. CITY shall not withhold applicable taxes or other authorized deductions from payments made to CONSULTANT.

1.5 ACCOUNTING RECORDS: CONSULTANT shall maintain complete and accurate records with respect to all matters covered under this Agreement for a period of five (5) years after the expiration or termination of this Agreement.

CITY shall have the right to access and examine such records, without charge, during normal business hours. CITY shall further have the right to audit such records, to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.

1.6 ABANDONMENT BY CONSULTANT: In the event CONSULTANT ceases to perform the Work agreed to under this Agreement or otherwise abandons the undertaking contemplated herein prior to the expiration of this Agreement or prior to completion of any or all tasks set forth in the Scope of Services, CONSULTANT shall deliver to CITY immediately and without delay, all materials, records and other work product prepared or obtained by CONSULTANT in the performance of this Agreement. Furthermore, CONSULTANT shall only be compensated for the reasonable value of the services, tasks and other work performed up to the time of cessation or abandonment, less a deduction for any damages, costs or additional expenses which CITY may incur as a result of CONSULTANT’s cessation or abandonment.

II.

PERFORMANCE OF AGREEMENT

2.1 CITY’S REPRESENTATIVES: The CITY hereby designates the CITY Manager (hereinafter, the “CITY Representative”) to act as its representative for the performance of this Agreement. The CITY Manager shall be the chief CITY Representative. The CITY Representative or his designee shall act on behalf of CITY for all purposes under this Agreement. CONSULTANT shall not accept directions or orders from any person other than the CITY Representative or his designee.

2.2 CONSULTANT REPRESENTATIVE: CONSULTANT hereby designates Ali Pakzad, Principal-in-Charge/Contract Manager (“Contractor”) to act as its representative for the performance of this Agreement (hereinafter, “CONSULTANT Representative”). CONSULTANT Representative shall have full authority to represent and act on behalf of the CONSULTANT for all purposes under this Agreement. CONSULTANT Representative or his designee shall

supervise and direct the performance of the Work, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Work under this Agreement. Notice to the CONSULTANT Representative shall constitute notice to CONSULTANT.

2.3 COORDINATION OF SERVICE; CONFORMANCE WITH REQUIREMENTS:

CONSULTANT agrees to work closely with CITY staff in the performance of the Work and this Agreement and shall be available to CITY staff and the CITY Representative at all reasonable times. All work prepared by CONSULTANT shall be subject to inspection and approval by CITY Representative or its designees.

2.4 STANDARD OF CARE; PERFORMANCE OF EMPLOYEES: CONSULTANT represents, acknowledges and agrees to the following:

A. CONSULTANT shall perform all Work skillfully, competently and to the generally accepted standards of CONSULTANT’s profession; B. CONSULTANT shall perform all Work in a manner reasonably satisfactory to the CITY;
C. CONSULTANT shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code section 1090 and the Political Reform Act (Government Code section 81000 et seq.);
D. CONSULTANT understands the nature and scope of the Work to be performed under this Agreement as well as any and all schedules of performance;
E. All of CONSULTANT’s employees and agents possess sufficient skill, knowledge, training and experience to perform those services and tasks assigned to them by CONSULTANT; and
F. All of CONSULTANT’s employees and agents (including but not limited subcontractors and subconsultants) possess all licenses, permits, certificates, qualifications and approvals of whatever nature that are legally required to perform the tasks and services contemplated under this Agreement and all such licenses, permits, certificates, qualifications and approvals shall be maintained throughout the term of this Agreement and made available to CITY for copying and inspection.

The Parties acknowledge and agree that CONSULTANT shall perform, at CONSULTANT’s own cost and expense and without any reimbursement from CITY, any services necessary to correct any errors or omissions caused by CONSULTANT’s failure to comply with the standard of care set

forth under this Section or by any like failure on the part of CONSULTANT’s employees, agents, contractors, subcontractors and subconsultants. Such effort by CONSULTANT to correct any errors or omissions shall be commenced immediately upon their discovery by either Party and shall be completed within seven (7) calendars days from the date of discovery or such other extended period of time authorized by the CITY Representatives in writing and in their sole and absolute discretion.

The Parties acknowledge and agree that CITY’s acceptance of any work performed by CONSULTANT or on CONSULTANT’s behalf shall not constitute a release of any deficiency or delay in performance. The Parties further acknowledge, understand and agree that CITY has relied upon the foregoing representations of CONSULTANT, including but not limited to the representation that CONSULTANT possesses the skills, training, knowledge and experience necessary to perform the Work skillfully, competently and to the generally accepted standards of CONSULTANT’s profession.

2.5 ASSIGNMENT: The skills, training, knowledge and experience of CONSULTANT are material to CITY’s willingness to enter into this Agreement.

Accordingly, CITY has an interest in the qualifications and capabilities of the person(s) who will perform the services and tasks to be undertaken by CONSULTANT or on behalf of CONSULTANT in the performance of this Agreement. In recognition of this interest, CONSULTANT agrees that it shall not assign or transfer, either directly or indirectly or by operation of law, this Agreement or the performance of any of CONSULTANT’s duties or obligations under this Agreement without the prior written consent of the CITY. In the absence of CITY’s prior written consent, any attempted assignment or transfer shall be ineffective, null and void and shall constitute a material breach of this Agreement.

2.6 CONTROL AND PAYMENT OF SUBORDINATES; INDEPENDENT
CONTRACTOR: The Work shall be performed by CONSULTANT or under CONSULTANT’s strict supervision. CONSULTANT will determine the means, methods and details of performing the Work subject to the requirements of this Agreement. CITY retains CONSULTANT on an independent contractor basis and not as an employee. CONSULTANT reserves the right to perform similar or different services for other principals during the term of this Agreement, provided such work does not unduly interfere with CONSULTANT’s competent and timely performance of the Work contemplated under this Agreement and provided the performance of such services does not result in the unauthorized disclosure of CITY’s confidential or proprietary information. Any additional personnel performing the Work under this Agreement on behalf of CONSULTANT are not employees of CITY and shall at all times be under CONSULTANT’s exclusive direction and control. CONSULTANT shall pay all wages, salaries and other amounts due such personnel and shall assume responsibility for all benefits, payroll taxes, Social Security and Medicare payments and the like.

CONSULTANT shall be responsible for all reports and obligations respecting

such additional personnel, including, but not limited to: Social Security taxes, income tax withholding, unemployment insurance, disability insurance, workers’ compensation insurance and the like.

2.7 REMOVAL OF EMPLOYEES OR AGENTS: If any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants is determined by the CITY Representatives to be uncooperative, incompetent, a threat to the adequate or timely performance of the tasks assigned to CONSULTANT, a threat to persons or property, or if any of CONSULTANT’s officers, employees, agents, contractors, subcontractors or subconsultants fail or refuse to perform the Work in a manner acceptable to the CITY, such officer, employee, agent, contractor, subcontractor or subconsultant shall be promptly removed by CONSULTANT and shall not be re-assigned to perform any of the Work.

2.8 COMPLIANCE WITH LAWS: CONSULTANT shall keep itself informed of and in compliance with all applicable federal, state or local laws to the extent such laws control or otherwise govern the performance of the Work. CONSULTANT’s compliance with applicable laws shall include without limitation compliance with all applicable Cal/OSHA requirements.

2.9 NON-DISCRIMINATION: In the performance of this Agreement, CONSULTANT shall not discriminate against any employee, subcontractor, subconsultant, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental disability or medical condition.

2.10 INDEPENDENT CONTRACTOR STATUS: The Parties acknowledge, understand and agree that CONSULTANT and all persons retained or employed by CONSULTANT are, and shall at all times remain, wholly independent contractors and are not officials, officers, employees, departments or subdivisions of CITY. CONSULTANT shall be solely responsible for the negligent acts and/or omissions of its employees, agents, contractors, subcontractors and subconsultants. CONSULTANT and all persons retained or employed by CONSULTANT shall have no authority, express or implied, to bind CITY in any manner, nor to incur any obligation, debt or liability of any kind on behalf of, or against, CITY, whether by contract or otherwise, unless such authority is expressly conferred to CONSULTANT under this Agreement or is otherwise expressly conferred by CITY in writing.

2.11 DISADVANTAGED BUSINESS ENTERPRISE (DBE). 49 C.F.R. Part 26.

Disadvantaged Business Enterprises.

A. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business

Enterprises (DBE) is 10%. CITY elects not to place a DBE contract goal on this project as there are few or no opportunities for DBE subcontractors for project management and project design services. A separate contract goal has not been established for this procurement.

B. CONSULTANT shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 C.F.R. Part 26 in the award and administration of this DOT-assisted contract. Failure by CONSULTANT to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as CITY deems appropriate. Each subcontract CONSULTANT signs with a subcontractor must include the assurance in this paragraph (see 49 C.F.R. 26.13(b)).

The successful bidder/offeror will be required to report its DBE participation obtained through race-neutral means throughout the period of performance. A copy of all DBE Certifications are required, if applicable.

C. CONSULTANT is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after CONSULTANT’s receipt of payment for that work from CITY.

D. CONSULTANT must promptly notify CITY whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work.

CONSULTANT may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of CITY.

III.

INSURANCE

3.1 DUTY TO PROCURE AND MAINTAIN INSURANCE: Prior to the beginning of and throughout the duration of the Work, CONSULTANT will procure and maintain policies of insurance that meet the requirements and specifications set forth under this Article. CONSULTANT shall procure and maintain the following insurance coverage, at its own expense:

A. Commercial General Liability Insurance: CONSULTANT shall procure and maintain Commercial General Liability Insurance (“CGL Coverage”) as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) or its equivalent. Such CGL Coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00)

in the general aggregate for bodily injury, personal injury, property damage, operations, products and completed operations, and contractual liability.

B. Automobile Liability Insurance: CONSULTANT shall procure and maintain Automobile Liability Insurance as broad as Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto).

Such Automobile Liability Insurance shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per accident for bodily injury and property damage.

C. Workers’ Compensation Insurance/ Employer’s Liability Insurance: A policy of workers’ compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both CONSULTANT and CITY against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by CONSULTANT in the course of carrying out the Work contemplated in this Agreement.

D. Errors & Omissions Insurance: For the full term of this Agreement and for a period of three (3) years thereafter, CONSULTANT shall procure and maintain Errors and Omissions Liability Insurance appropriate to CONSULTANT’s profession. Such coverage shall have minimum limits of no less than One Million Dollars ($1,000,000.00) per claim.

3.2 ADDITIONAL INSURED REQUIREMENTS: The CGL Coverage and the Automobile Liability Insurance shall contain an endorsement naming the CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers as additional insureds.

3.3 REQUIRED CARRIER RATING: All varieties of insurance required under this Agreement shall be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance shall be procured from insurers who, according to the latest edition of the Best’s Insurance Guide, have an A.M. Best’s rating of no less than A:VII. CITY may also accept policies procured by insurance carriers with a Standard & Poor’s rating of no less than BBB according to the latest published edition the Standard & Poor’s rating guide.

As to Workers’ Compensation Insurance/ Employer’s Liability Insurance, the CITY Representatives are authorized to authorize lower ratings than those set forth in this Section.

3.4 PRIMACY OF CONSULTANT’S INSURANCE: All policies of insurance provided by CONSULTANT shall be primary to any coverage available to CITY or CITY’s elected or appointed officials, officers, employees, agents or volunteers. Any insurance or self-insurance maintained by CITY or CITY’s elected or appointed

officials, officers, employees, agents or volunteers shall be in excess of CONSULTANT’s insurance and shall not contribute with it.

3.5 WAIVER OF SUBROGATION: All insurance coverage provided pursuant to this Agreement shall not prohibit CONSULTANT or CONSULTANT’s officers, employees, agents, subcontractors or subconsultants from waiving the right of subrogation prior to a loss. CONSULTANT hereby waives all rights of subrogation against CITY.

3.6 VERIFICATION OF COVERAGE: CONSULTANT acknowledges, understands and agrees, that CITY’s ability to verify the procurement and maintenance of the insurance required under this Article is critical to safeguarding CITY’s financial well-being and, indirectly, the collective well-being of the residents of the CITY.

Accordingly, CONSULTANT warrants, represents and agrees that its shall furnish CITY with original certificates of insurance and endorsements evidencing the coverage required under this Article on forms satisfactory to CITY in its sole and absolute discretion. The certificates of insurance and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the CITY if requested. All certificates of insurance and endorsements shall be received and approved by CITY as a condition precedent to CONSULTANT’s commencement of any work or any of the Work. Upon CITY’s written request, CONSULTANT shall also provide CITY with certified copies of all required insurance policies and endorsements.

IV.

INDEMNIFICATION

4.1 The Parties agree that CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers (hereinafter, the “CITY Indemnitees”) should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, or any other cost arising out of or in any way related to the performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the CITY Indemnitees with the fullest protection possible under the law. CONSULTANT acknowledges that CITY would not enter into this Agreement in the absence of CONSULTANT’s commitment to indemnify, defend and protect CITY as set forth herein.

4.2 WORK OF CONTRACTOR’S DESIGN PROFESSIONALS SERVICES: The duty to indemnify, defend and hold harmless as set forth under this subsection shall apply to the negligence, recklessness or willful misconduct of any individual who qualifies as a “design professional” within the meaning of subsection (c)(2) of section 2782.8 of the California Civil Code in so far as such negligence, recklessness or willful misconduct occurs in the performance of the Work or activities that must be performed by a “design professional.” Subject to the limitation of the preceding sentence, to the fullest extent permitted by law,

CONSULTANT shall immediately defend and indemnify and hold harmless the CITY Indemnities, defined above, from and against any and all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation arising out of the negligence, recklessness, or willful misconduct of CONSULTANT or any of CONSULTANT’s officers, employees, servants, agents, contractors, subcontractors or authorized volunteers or any other person or entity involved by, for, with or on behalf of CONSULTANT in the performance of design professional services under this Agreement. The Parties understand and agree that the duty of CONSULTANT to indemnify, defend and hold harmless pursuant to this subsection includes the duty to defend as set forth in section 2778 of the California Civil Code.

CONSULTANT’s obligation to indemnify applies unless it is finally adjudicated that the liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, then CONSULTANT’s indemnification obligation shall be reduced in proportion to the established comparative liability.

4.3 WORK OF ALL OTHER PERSONS/NON-DESIGN PROFESSIONALS: Except as otherwise provided under Section 4.2 of this Article, above, to the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless the CITY Indemnitees from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation) of every nature to the extent caused by CONSULTANT’s negligent performance under this Agreement, including but not limited to the negligent acts, errors or omissions of CONSULTANT or CONSULTANT’s officers, employees, agents, servants, contractors, subcontractors or subconsultants or the failure of the same to comply with any of the duties, obligations or standards of care set forth herein. The duty to indemnify, defend and hold harmless under this subsection shall not encompass a duty to indemnify, defend or hold harmless for liability, loss, suit, damage, expense, or cost caused by the negligence or willful misconduct of any or all of the CITY Indemnitees. The duty to indemnify, defend and hold harmless as set forth under this subsection is intended to encompass liabilities, losses, damages, expense and costs not otherwise subject to subsection 4.2, above.

4.4 To the fullest extent permitted by law, CONSULTANT shall indemnify, hold harmless and defend the CITY Indemnitees from and against all liability, loss, damage, expense, cost (including without limitation reasonable attorneys’ fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with CONSULTANT’s performance of work hereunder or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole negligence or willful misconduct of the CITY.

4.5 CITY shall have the right to offset against the amount of any compensation due CONSULTANT under this Agreement any amount due CITY from CONSULTANT as a result of CONSULTANT’s failure to pay CITY promptly any indemnification

arising under this Article and related to CONSULTANT’s failure to either (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.

4.6 The obligations of CONSULTANT under this Article will not be limited by the provisions of any workers’ compensation act or similar act. CONSULTANT expressly waives its statutory immunity under such statutes or laws as to CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers.

4.7 CONSULTANT agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Article from each and every subcontractor 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 herein, CONSULTANT agrees to be fully responsible and indemnify, hold harmless and defend CITY and CITY’s elected and appointed officials, officers, employees, agents and volunteers from and against any and all claims and losses, costs or expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of CONSULTANT’s subcontractors or any other person or entity involved by, for, with or on behalf of CONSULTANT in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of CITY’s choice.

4.8 CITY does not, and shall not, waive any rights that it may possess against CONSULTANT because of the acceptance by CITY, or the deposit with CITY, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.

4.9 This Article and all provisions contained herein (including but not limited to the duty to indemnify, defend and hold free and harmless) shall survive the termination or normal expiration of this Agreement and is in addition to any other rights or remedies which the CITY may have at law or in equity.

V.

TERMINATION

5.1 TERMINATION WITHOUT CAUSE: CITY may terminate this Agreement at any time for convenience and without cause by giving CONSULTANT a minimum of five (5) calendar days prior written notice of CITY’s intent to terminate this Agreement. Upon such termination for convenience, CONSULTANT shall be compensated only for those services and tasks which have been performed by CONSULTANT up to the effective date of the termination. CONSULTANT may not terminate this Agreement except for cause as provided under Section 5.2,

below. If this Agreement is terminated as provided herein, CITY may require CONSULTANT to provide all finished or unfinished Documents and Data, as defined in Section 6.5 below, and other information of any kind prepared by CONSULTANT in connection with the performance of the Work. CONSULTANT shall be required to provide such Documents and Data within fifteen (15) calendar days of CITY’s written request. No actual or asserted breach of this Agreement on the part of CITY pursuant to Section 5.2, below, shall operate to prohibit or otherwise restrict CITY’s ability to terminate this Agreement for convenience as provided under this Section.

5.2 EVENTS OF DEFAULT; BREACH OF AGREEMENT:

A. In the event either Party fails to perform any duty, obligation, service or task set forth under this Agreement (or fails to timely perform or properly perform any such duty, obligation, service or task set forth under this Agreement), an event of default (hereinafter, “Event of Default”) shall occur. For all Events of Default, the Party alleging an Event of Default shall give written notice to the defaulting Party (hereinafter referred to as a “Default Notice”) which shall specify: (i) the nature of the Event of Default; (ii) the action required to cure the Event of Default; (iii) a date by which the Event of Default shall be cured, which shall not be less than the applicable cure period set forth under Sections 5.2.(B) and 5.2(C) below or if a cure is not reasonably possible within the applicable cure period, to begin such cure and diligently prosecute such cure to completion. The Event of Default shall constitute a breach of this Agreement if the defaulting Party fails to cure the Event of Default within the applicable cure period or any extended cure period allowed under this Agreement.

B. CONSULTANT shall cure the following Events of Defaults within the following time periods:
i. Within three (3) business days of CITY’s issuance of a Default Notice for any failure of CONSULTANT to timely provide CITY or CITY’s employees or agents with any information and/or written reports, documentation or work product which CONSULTANT is obligated to provide to CITY or CITY’s employees or agents under this Agreement. Prior to the expiration of the 3-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 3-day cure period.

The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2 B.i. that exceeds seven (7) calendar days from the end of the initial 3-day cure period; or

ii. Within fourteen (14) calendar days of CITY’s issuance of a Default Notice for any other Event of Default under this Agreement. Prior to the expiration of the 14-day cure period, CONSULTANT may submit a written request for additional time to cure the Event of Default upon a showing that CONSULTANT has commenced
efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 14-day cure period. The foregoing notwithstanding, CITY shall be under no obligation to grant additional time for the cure of an Event of Default under this Section 5.2B.ii that exceeds thirty (30) calendar days from the end of the initial 14-day cure period.

In addition to any other failure on the part of CONSULTANT to perform any duty, obligation, service or task set forth under this Agreement (or the failure to timely perform or properly perform any such duty, obligation, service or task), an Event of Default on the part of CONSULTANT shall include, but shall not be limited to the following: (i) CONSULTANT’s refusal or failure to perform any of the services or tasks called for under the Scope of Services; (ii) CONSULTANT’s failure to fulfill or perform its obligations under this Agreement within the specified time or if no time is specified, within a reasonable time; (iii) CONSULTANT’s and/or its employees’ disregard or violation of any federal, state, local law, rule, procedure or regulation; (iv) the initiation of proceedings under any bankruptcy, insolvency, receivership, reorganization, or similar legislation as relates to CONSULTANT, whether voluntary of involuntary; (v) CONSULTANT’s refusal or failure to perform or observe any covenant, condition, obligation or provision of this Agreement; and/or (vii) CITY’s discovery that a statement representation or warranty by CONSULTANT relating to this Agreement is false, misleading or erroneous in any material respect.

C. CITY shall cure any Event of Default asserted by CONSULTANT within forty-five (45) calendar days of CONSULTANT’s issuance of a Default Notice, unless the Event of Default cannot reasonably be cured within the 45-day cure period. Prior to the expiration of the 45-day cure period, CITY may submit a written request for additional time to cure the Event of Default upon a showing that CITY has commenced its efforts to cure the Event of Default and that the Event of Default cannot be reasonably cured within the 45-day cure period. The foregoing notwithstanding, an Event of Default dealing with CITY’s failure to timely pay any undisputed sums to CONSULTANT as provided under Section 1.4, above, shall be cured by CITY within five (5) calendar days from the date of CONSULTANT’s Default Notice to CITY.

D. CITY, in its sole and absolute discretion, may also immediately suspend CONSULTANT’s performance under this Agreement pending
CONSULTANT’s cure of any Event of Default by giving CONSULTANT

written notice of CITY’s intent to suspend CONSULTANT’s performance (hereinafter, a “Suspension Notice”). CITY may issue the Suspension Notice at any time upon the occurrence of an Event of Default. Upon such suspension, CONSULTANT shall be compensated only for those services and tasks which have been rendered by CONSULTANT to the reasonable satisfaction of CITY up to the effective date of the suspension. No actual or asserted breach of this Agreement on the part of CITY shall operate to prohibit or otherwise restrict CITY’s ability to suspend this Agreement as provided herein.

E. No waiver of any Event of Default or breach under this Agreement shall constitute a waiver of any other or subsequent Event of Default or breach.

No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

F. The duties and obligations imposed under this Agreement and the rights and remedies available hereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. In addition to any other remedies available to CITY at law or under this Agreement in the event of any breach of this Agreement, CITY, in its sole and absolute discretion, may also pursue any one or more of the following remedies:
i. Upon written notice to CONSULTANT, the CITY may immediately terminate this Agreement in whole or in part;
ii. Upon written notice to CONSULTANT, the CITY may extend the time of performance;
iii. The CITY may proceed by appropriate court action to enforce the terms of the Agreement to recover damages for CONSULTANT’s breach of the Agreement or to terminate the Agreement; or iv. The CITY may exercise any other available and lawful right or remedy.

CONSULTANT shall be liable for all legal fees plus other costs and expenses that CITY incurs upon a breach of this Agreement or in the CITY’s exercise of its remedies under this Agreement.

G. In the event CITY is in breach of this Agreement, CONSULTANT’s sole remedy shall be the suspension or termination of this Agreement and/or the recovery of any unpaid sums lawfully owed to CONSULTANT under this Agreement for completed services and tasks.

5.3 SCOPE OF WAIVER: No waiver of any default or breach under this Agreement shall constitute a waiver of any other default or breach, whether of the same or other covenant, warranty, agreement, term, condition, duty or requirement contained in this Agreement. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.

5.4 SURVIVING ARTICLES, SECTIONS AND PROVISIONS: The termination of this Agreement pursuant to any provision of this Article or by normal expiration of its term or any extension thereto shall not operate to terminate any Article, Section or provision contained herein which provides that it shall survive the termination or normal expiration of this Agreement.

5.5 SUSPENSION OF WORK: The CITY may suspend, in writing, all or a portion of the Work under this Agreement if unforeseen circumstances beyond the CITY’s control make normal progress of the Work impossible.

VI.

MISCELLANEOUS PROVISIONS

6.1 AUDIT OR EXAMINATION: All records and files related to the Programs shall be kept and maintained at the City Hall premises at all times. CITY shall keep and maintain all program files for the CITY and make them accessible for audit or examination for a period of five (5) years after final payments are issued and other pending matters are closed. (24 C.F.R. Part 85, Sec. 42)

6.2 CONFLICT OF INTEREST: CONSULTANT agrees that any conflict or potential conflict of interest shall be fully disclosed prior to execution of the Agreement or upon actual knowledge of a conflict of interest or potential conflict of interest during the term of this Agreement and CONSULTANT shall comply with all applicable federal, state and county laws and regulations governing conflict of interest, in accordance with 24 C.F.R. Part 85, Sec. 84.36.

6.3 COMPLIANCE WITH FEDERAL REGULATIONS:

This Agreement is subject to and incorporates the terms of Subpart K of the CDBG Regulations and all other applicable Federal Standards Provisions, inclusive of the following:

Executive Order 11246 requires that during the performance of this Agreement, CONSULTANT agrees not to discriminate against any employee or applicant for employment because of race, religion, sex color, or national origin.

CONSULTANT will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex color or national origin. Such action shall include, but not be limited to, the following: employment upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other

forms of compensation; and selection for training, including apprenticeship.

CONSULTANT agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by CONSULTANT setting forth the provisions of this nondiscrimination clause.

Section 3 of Housing and Community Development Act of 1968, as amended, 12 U.S.C. 1701 et seq., requires that, to the greatest extent feasible, opportunities for training and employment be given to lower income residents of the Project area and contracts for work in connection with the Project be awarded to business concerns which are located in, or owned in substantial part, by persons residing in the area of the Project.

Title VI of the Civil Rights Act of 1964 provides that no person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Section 109, Title I of the Housing and Community Development Act of 1974 provides that no person shall, on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program of activity funded in whole or in part with funds made available under this title.

Any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975, or with respect to an otherwise qualified individual, as provided in Section 504 or Rehabilitation Act of 1973, shall also apply to any such program or activity.

6.4 FEDERAL LABOR COMPLIANCE:

A. Minimum Wages.
i. The Services provided under this Agreement are financed in part with federal funding and therefore the provisions of the Davis Bacon Act (40 U.S.C. section 276a) apply to the payment of workers employed by CONSULTANT, and all subcontractors to CONSULTANT, who perform any Work on the Project under this Agreement. All laborers and mechanics employed or working on the site of the Project will be paid unconditionally and not less often than once a week, and without subsequent deductions or rebates on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 C.F.R. Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at the time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor, which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between CONSULTANT

and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to laborers or mechanics, subject to the provisions of subparagraph A.iv below; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of Work actually performed, without regard to skill, except as provided in paragraph D. of this Section. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein, provided that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under A.ii of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by CONSULTANT and its subcontractors at the site of the Project in a prominent and accessible place where it can easily be seen by the workers.
ii. Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. CITY shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met:
(a) The work to be performed by the classification
requested is not performed by a classification in the
wage determination; and
(b) The classification is utilized in the area by the
construction industry; and
(c) The proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.
iii. If CONSULTANT and the laborers and mechanics to be employed in the classification (if known), or their representatives, and CITY agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by CITY to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S.

Department of Labor, Washington, D.C. 20210. The Administrator,