CITY OF FULLERTON
PROFESSIONAL SERVICES AGREEMENT
WITH
LINDA MANSFIELD RIGHT OF WAY & REAL ESTATE SERVICES
THIS AGREEMENT is made and entered into this day of , 2022 (“Effective Date”), by and between the CITY OF FULLERTON, a California municipal corporation (“City”), and LINDA MANSFIELD RIGHT OF WAY & REAL ESTATE SERVICES, (“Consultant”).
W I T N E S S E T H :
A. City proposes to utilize the services of Consultant as an independent contractor to provide certain professional real property and right of way services on an as -needed basis, as more fully described herein.
B. Consultant represents that it has that degree of specialized expertise contemplated within California Government Code s ection 37103, and holds all necessary licenses to practice and perform the services herein contemplated.
C. City and Consultant desire to contract for the specific services described herein, and desire to set forth their rights, duties and liabilities in connection with t he services to be performed.
D. No official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described in the City’s Request for Proposals (“RFP”), attached hereto as Exhibit “A,” and Consultant’s Response to City’s RFP (“Consultant’s Proposal”), attached hereto as Exhibit “B,” both incorporated herein by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws and regulations that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement.
1.3. Performance to Satisfaction of City . Consultant agrees to perform all the work to the reasonable satisfaction of the City, in accordance with the applicable professional standard of care and City specifications and within the hereinafter specified. Evaluations of the wor k will be done by the City Manager or his designee. If the quality of work is not satisfactory, City in its discretion has the right to:
(a) Meet with Consultant to review the quality of the work and resolve the matters of concern;
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(b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable and non conflicting Federal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers’ compensation insurance and safety in employment; and a ll other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys’ fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant’s performance under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code.
1.6. Non-Exclusive Agreement . Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal servi ce contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Consultant may engage a subcontractor(s) as permitted by law and may employ other personnel to perform servi ces contemplated by this Agreement at Consultant’s sole cost and expense.
1.8. Confidentiality. Employees of Consultant in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by la w. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the fee schedule set forth in Exhibit B. Consultant’s total compensation shall be based on each proposal the Consultant submits and the City accepts for the services requested on a particular project.
2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in Consultant’s Proposal set forth in Exhibit “B” unless the City or the Project Manager for this Project, prior to Consultant performing the Professional On-Call Real Property and Right Of Way Services City of Fullerton
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additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
2.3. Method of Billing. Consultant may su bmit invoices to the City for approval on a progress basis, but no more often than two times a month. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction. City shall pay Consultant’s invoice within forty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times from the Effective Date of this Agreement until three (3) years after the termination date.
2.5. W-9. Consultant must provide City with a current W -9 form prior to the commencement of work under this Agreement. It is the Consultant’s responsibili ty to provide to the City any revised or updated W-9 form during the term of this Agreement.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work . The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusable Delays . Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue until June 30, 2025 unless terminated as provided herein. The term of this Agreement may be renewed for one additional two-year period upon mutual written agreement by both parties.
4.2. Notice of Termination . The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of a ll or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant.
The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City.
4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including the date of City’s written notice of termination. Compensation for work in progress shall be prorated based on the percentage of work completed as of the effective date of termination in Professional On-Call Real Property and Right Of Way Services City of Fullerton
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accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant.
4.4. Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at Cit y's sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Insurance Required . Consultant shall procure and maintain throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Consultant, its age nts, representatives, employees or subcontractors. Consultant shall provide current evidence of the required insurance in a form acceptable to City and shall provide replacement evidence for any required insurance which expires prior to the completion, expiration, or termination of this Agreement.
Nothing in this section shall be construed as limiting in any way, the Indemnification and Hold Harmless clause contained herein in Section 6.8 or the extent to which Consultant may be held responsible for payments of damages to persons or property.
5.2. Minimum Scope and Limits of Insurance.
A. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance coverage in a form at least as broad as ISO Form #CG 00 01, with a limit of not less than $2,000,000 each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Agreement or shall be twice the required occurrence limit.
B. Business Automobile Liability Insurance. Consultant shall maintain business automobile liability insurance coverage in a form at least as broad as ISO Form # CA 00 01, with a limit of not less than $1,000,000 each accident. Such insurance shall include coverage for owned, hired and non-owned automobiles.
C. Workers’ Compensation and Employers’ Liability Insurance. Consultant shall maintain workers’ compensation insurance as required by the State of California and employers’ liability insurance with limits of not less than $1,000,000 each accident.
D. Professional Liability Insurance. Consultant shall maintain professional liability insurance appropriate to Consultant’s profession with a limit of not less than $2,000,000 per occurrence or claim and $2,000,000 aggregate.
E. Employee/Officer Fidelity Bond. Consultant shall maintain a fidelity bond with a minimum limit of $1,000,000, providing coverage for the acts of all employees, officers and directors of Consultant.
Professional On-Call Real Property and Right Of Way Services City of Fullerton
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5.3. Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be declared to and approved by City.
5.4. Other Insurance Provisions. The required insurance policies shall contain or be endorsed to contain the following provisions:
Commercial General Li ability. City, its elected or appointed officials, officers, employees and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant, including materials, parts o r equipment furnished in connection with such work or operations. Such coverage as an additional insured shall not be limited to the period of time during which Consultant is conducting ongoing operations for City but rather, shall continue after the comp letion of such operations. The coverage shall contain no special limitations on the scope of its protection afforded to City, its officers, employees and volunteers. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Commercial General Liability. This insurance shall be primary insurance at least as broad as ISO CG 20 01 04 13 as respects City, its officers, employees and volunteers and shall apply separately to each insured against whom a suit is brought or a claim is made. Any insurance or self - insurance maintained by City, its officers, employees and voluntee rs shall be excess of this insurance and shall not contribute with it.
Professional Liability. If the Professional Liability policy is written on a “claims made” form, the Retroactive Date must be shown and must be before the date of the contract or begin ning of contract work. The insurance must be maintained and evidence of insurance must be provided for at least (5) years after completion of the contract work. If the coverage is canceled or non - renewed and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting coverage” for a minimum of five (5) years after completion of work.
Workers’ Compensation and Employers’ Liability Insurance. Insurer shall waive their right of subrogation against City, its officers, employees and volunteers for work done on behalf of City.
Employee/Officer Fidelity Bond, City shall be named as third party beneficiary for losses arising from work done on behalf of City. (Omit if the consultant is not handling City project funds)
All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to City.
If Consultant maintains higher limits or has broader coverage than the minimums shown above, City requires and shall be entitled to all coverage, and to the higher limits maintained by Consultant. Any avai lable insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
Subcontractors. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein and Consultant shall ensure that City is an additional insured on insurance required from subconsultants.
Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special Professional On-Call Real Property and Right Of Way Services City of Fullerton
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circumstances.
5.5 Acceptability of Insurers. All required insurance s hall be placed with insurers acceptable to City with current BEST’S ratings of no less than A, Class VII. Workers’ compensation insurance may be placed with the California State Compensation Insurance Fund.
All insurers shall be licensed by or hold admit ted status in the State of California. At the sole discretion of City, insurance provided by non-admitted or surplus carriers with a minimum BEST’S rating of no less than A- Class X may be accepted if Consultant evidences the requisite need to the sole satisfaction of City.
5.6 Verification of Coverage. Consultant shall furnish City with certificates of insurance which bear original signatures of authorized agents and which reflect insurers names and addresses, policy numbers, coverage, limits, deductib les and self -insured retentions.
Additionally, Consultant shall furnish copies of all policy endorsements required herein. All certificates and endorsements must be received and approved by City before work commences.
City reserves the right to require at any time complete, certified copies of any or all required insurance policies and endorsements.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotia¬tions. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inco nsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
6.2. Representatives. The City Manager or his designee shall be the representative of City for purposes of this Agreement and may issue all consen ts, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Project Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail.
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IF TO CONSULTANT: IF TO CITY:
Linda Mansfield
Right of Way & Real Estate Services
3033 E. Hononegh Dr.
Phoenix, AZ 85050
Attn: Linda Mansfield
City of Fullerton
303 W. Commonwealth Ave.
Fullerton, CA 92832
Attn: Public Works Director
6.5. Attorneys’ Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof.
6.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California.
6.7. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement.
Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement.
6.8. Indemnification and Hold Harmless . To the fullest extent of the law, Consultant agrees to defend, indemnify, hold free and harmless the City, its elected officials, officers, agents, and employees, at Consultant’s sole expense, from and against claims, actions, suits or other legal proceedings brought against the City, its elected officials, officers, agents, and employees arising out of the performance of the Consultant, its employees, and/or authorized subcontractors, of the professional services undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Consultant, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected officials, officers, agents, and employees based upon the work performed by Consultant, its employees, and/or authorized subc ontractors under this Agreement, whether or not Consultant, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable .
Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification of the City for claims, actions, complaints , or suits arising out of the sole negligence or willful misconduct of the City. This provision shall supersede and replace all other indemnity provisions contained either in the City’s specifications or Consultant’ s Proposal, which shall be of no force and effect.
6.9. Independent Contractor . Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Consultant or any of Professional On-Call Real Property and Right Of Way Services City of Fullerton
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Consultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its or employees are in any manner agents or employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disab ility Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Consultant shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant further agrees to indemnify and hold Ci ty harmless from any failure of Consultant to comply with the applicable worker’s compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a resul t of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this paragraph.
6.10. PERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contribution s, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and en titlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
6.11. Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance or services rende red under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require.
6.12. Ownership of Documents . All findings, reports, CAD drawings, documents, information and data , including, but not limited to, compu ter tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information sh all not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and with out liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from City’s use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consultant. Consultant shall deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files, audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City.
6.13. Public Records Act Disclosure . Consultant has been advised and is aware that Professional On-Call Real Property and Right Of Way Services City of Fullerton
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this Agreement and all reports, document s, information and data , including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
6.14. Conflict of Interest . Consultant and its officers, employees, associates and subconsultants, if a ny, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Cod e Section 1090.
During the term of this Agreement, Consultant and its officers, employees, associates and subconsultants shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subconsultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
6.15. Responsibility for Errors. Consultant shall be responsible for its work under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, without prejudice to any other remedy to which City may be entitled to at law or equity, Consultant shall, at no cost to City, provide all necessary design dr awings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. In addition, Consultant shall reimburse Cit y for any and all costs, expenses and/or damages, if any, that the City has incurred due to the aforementioned error or omission.
6.16. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
6.18. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
6.19. No Third Party Beneficiary Rights . This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
6.20. Headings. Paragraphs and subparagraph headings contained in this Agreement Professional On-Call Real Property and Right Of Way Services City of Fullerton
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are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
6.21. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises wit h respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.22. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6.23. Waiver. The delay or failure of either party at any time to require p erformance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.24. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations.
Professional On-Call Real Property and Right Of Way Services City of Fullerton
EXHIBIT A
REQUEST FOR PROPOSALS
C I T Y O F F U L L E R T O N
R E Q U E S T F O R Q U A L I F I C A T I O N S
RFQ #4377 ON-CALL REAL PROPERTY & RIGHT-OF-WAY SERVICES
SUBMIT YOUR
PROPOSAL BY 2:00 PM PST
ON WEDNESDAY, AUGUST 31, 2022
TO:
City of Fullerton – Purchasing
303 W. Commonwealth Avenue
Fullerton CA, 92832-1775
RFQ Posted: August 9, 2022
Table of Contents
SECTION I NOTICE OF REQUEST FOR QUALIFICATIONS…………………………………………..1 SECTION II SCOPE OF SERVICES/SCOPE OF WORK………………………………………………...2 SECTION III INSTRUCTIONS TO PROPOSERS……………………………………………………….....3 SECTION IV REQUIRED PROPOSAL CONTENT………………………………………………………....7 SECTION V EVALUATION AND AWARD………………………………………………………………....10 SECTION VI SAMPLE PROFESSIONAL SERVICES AGREEMENT……………………………….…..12 SECTION VII STATUS OF PAST AND PRESENT CONTRACT FORM………………………………...25 SECTION VIII EXCEPTIONS FORM………………………………………………………………………....26 1 SECTION I
NOTICE OF REQUEST FOR QUALIFICATIONS
On-Call Real Property & Right-of-Way Services
NOTICE IS HEREBY GIVEN that the City of Fullerton is requesting statement of qualifications from consulting firms to provide On-Call Real Property and Right-of-Way Services for the City in support of the Public Works Department, Engineering Division . The City intends to select up to three (3) firms, but the actual number of firms selected may be based on number of responses and qualifications.
This Request for Qualifications (RFQ) provides information on the City of Fullerton, the required scope of services, the firm(s) selection process, and the minimum information that must be included in the RFQ response. Proposals will be evaluated on the basis of the overall best value to the City based on quality, service, price, and any other criteria set out herein including but not limited to, the proposer’s ability to meet the requirements, qualifications, and competencies set out herein.
BACKGROUND
The City of Fullerton is located 22 miles southeast of metropolitan Los Angeles, in the center of North Orange County. Fullerton is a full-service, general law city that was incorporated in 1904. Fullerton is renowned for its unique mix of residential, commercial, industrial, educational, and cultural environments and is known for being “the education community”. Fullerton has 52 City parks, a museum, a cultural center, a public library, a golf course, and 29 miles of recreational trails. Fullerton provides an outstanding quality of life for both residents and businesses. At 22.4 square miles, Fullerton is also one of the largest cities in Orange County by area and is the sixth most populous.
SUBMITTAL DEADLINE
TO BE CONSIDERED, ELECTRONIC PROPOSALS MUST BE SUBMITTED THROUGH PUBLICPURCHASE OR BY USB FLASH DRIVE, NO LATER THAN Wednesday, August 31, 2022 at 2:00 PM to the Purchasing Division, 303 W. Commonwealth Ave., Fullerton, California, 92832. Failure of, or disturbances in any mail is not a legitimate reason for proposals submitted after the above due date. The City may extend the deadline at its discretion.
It is not the responsibility of the City to notify potential bidders. Prospective bidders shall be notified via the City’s eProcurement portal, Public Purchase at www.publicpurchase.com. Organizations must first register as a vendor and registration is free , and organizations may select to be notified of all future bids posted by the City of Fullerton.
2 SECTION II
SCOPE OF SERVICES/SCOPE OF WORK
The City of Fullerton would like the selected firm (s) to provide Real Property and Right-of-Way Services for City improvement projects and private development activities in support of the Public Works Department, Engineering Division . The City intends to award an agreement for the solicited services for a term of three (3) years with an option to renew for an additional two (2) year period at the City’s discretion. The City encourages firms to submit qualifications for any or all parts of the key services listed below to be eligible for placement on the qualified on -call/as-needed list for each service criteria.
The work will be assigned on an as-needed basis for various projects in the city. At the City’s discretion, successful firms will be assigned projects based on qualifications in relation to the project(s) scope of work.
MINIMUM QUALIFICATIONS
Only those consultants with verifiable experience as it relates to the services requested in this solicitation will be considered during the evaluation process. Consultant staff assigned to execute the scope of services must have relevant experience in providing the necessary services as described under the scope of services. All personnel assigned to the work shall possess appropriate certifications or registrations as required by state and local agencies.
SCOPE OF WORK
Selected firms will report to, and operate un der, the direction of the City of Fullerton Public Works staff, to provide professional services to complete real estate management, planning, and right -of- way acquisition tasks as -needed for the City from private development activities to Capital Improvement Program (CIP) projects. In general, the selected consultant will be expected to provide services, including but not limited to the following:
• Obtain information and documentation to resolve real property issues as they relate to Capital Improvement Program (CIP) projects and/or private developments. • Prepare contracts, agreements, leases, deeds, reconveyances, and other means used to obtain or vacate interests in real property.
• Advise and coordinate Utility Relocation and Real Estate Relocation activities. • Assist City with development, issuance, and tracking of Encroachment Agreements. • Develop and maintain encroachment / easement database; GIS is preferred. • Review City record documents, title documents, legal descriptions, and others as needed. • Research maps, surveys and other documentations as needed from County Recorder. • Provide support for Eminent Domain activities with City’s legal counsel. • Provide support and coordination for Excess Land Sales. • Assist with development of lease rates for public land for various purposes (ie. Outdoor dining, construction storage, etc.).
• Other Right-of-Way and Property Management services as needed. 3 SECTION III
INSTRUCTIONS TO PROPOSERS
Examination of Proposal Documents
By submitting a proposal, firm(s) represents that it has thorough ly examined and become familiar with the work required under this RFQ and is capable of performing quality work to achieve the City’s objectives.
Addenda
Any changes to the requirements will be made by written addendum to this RFQ. Any written addenda issued pertaining to this RFQ shall be incorporated into the terms and conditions of any resulting Agreement. City will not be bound to any modifications to or deviations from the requirements set forth in this RFQ as the result of oral instructions. Firms shall acknowledge receipt of addenda in their proposals.
If a firm discovers any ambiguity, conflict, discrepancy, omission , or other error in the RFQ, th e proposer should immediately provide the City written notice of the problem and request that the RFQ be clarified or modified. Without disclosing the source of the request, the City may modify the documents prior to the date fixed for submission of proposals by issuing an addendum.
If prior to the date fixed for submissions, a firm(s) knows of or should have known of an error in the RFQ but fails to notify the City of the error, the firm shall submit a proposal at their own risk, and if awarded a contract, shall not be entitled to additional compensation or time by reason of the error or its later correction.
California Public Records Act (CPRA)
All proposals submitted in response of this RFQ become the property of the City and under the Public Records Act (Government Code Section 6250 el. Seq.) are public record, and as such, may be subject to public review. However, the proposals shall not be disclosed until negotiations are complete and/or recommendation for action is made to the City Manager and/or City Council.
If a proposer claims a privilege against public disclosure for trade secret or other proprietary information, such information must be clearly identified in the proposal. Note that under California Law, price proposal to a public agency is not a trade secret.
Request for Information
Submitting Questions
All questions must be submitted and received by the City no later than 4:00 P.M. PST on Wednesday, August 17, 2022.
4 Request for clarifications, questions and comments must be submitted through the City’s eProcurement Portal via Public Purchase (www.publicpurchase.com ), a third-party website that hosts the City’s eProcurement’s. Registration is free and interested firms can select to receive automatic bid notifications from the City.
City Responses
Responses from the City will be posted on the City’s bid webpage and the City’s eProcurement Portal, Public Purchase, tentatively scheduled to be posted on August 22, 2022.
City’s Bid Webpage: www.cityoffullerton.com/business/bids-rfps City’s eProcurement Portal – Public Purchase: www.publicpurchase.com
CITY CONTACT
General questions regarding this RFQ are to be directed to the following:
City of Fullerton – Purchasing
Attn: Karen Chung, Buyer
303 W. Commonwealth Avenue
Fullerton, CA 92832-1775
Phone: 714/738-6537
Email: [email protected]
Any contact outside of the City staff/representative shall be cause for disqualification Submission of Proposals
Date and Time
Proposals must be submitted at or before 2:00 PM PST on Wednesday, August 31, 2022.
Proposals received after the above-specified date and time will not be accepted by the City and will be returned to the firm unopened.
How to Submit
Firm shall submit one (1) complete electronic proposal in one (1) USB flash drive or submit electronically through PublicPurchase. USB flash drive must be submitted in a sealed package bearing the firm’s name and address and clearly marked as follows:
RFQ #4377 On-Call Real Property & Right-of-Way Services City of Fullerton – Purchasing
Attn: Karen Chung, Buyer
303 W. Commonwealth Avenue
Fullerton CA, 92832-1775
Phone: 714-738-6537 Email: [email protected] Proposer shall ensure that proposals are received by the City on or before the specified date and 5 time. Failure to adhere to the deadline will result in disqualification.
Acceptance of Proposals
1. City reserves the right to accept or reject any and all proposals, or any item or part thereof, or to waive any informalities or irregularities in proposals.
2. City reserves the right to withdraw or cancel this RFQ at any time without prior notice, and the City makes no representations that any contract will be awarded to any proposer responding to this RFQ.
3. City reserves the right to postpone proposal openings for its own convenience.
4. Submitted proposals are not to be copyrighted.
5. City does not guarantee any work upon award of an agreement.
Pre-Contractual Expenses
City shall not, in any event, be liable for any pre -contractual expenses incurred by firm in the preparation of its proposal. Firm shall not include any such expenses as part of its proposal.
Pre-contractual expenses are defined as expenses incurred by firm(s) in:
1. Preparing its proposal in response to this RFQ;
2. Submitting that proposal to the City;
3. Negotiating with the City any matter related to this proposal; or any other expenses incurred by firm prior to date of award, if any, of the Agreement.
Joint Offers
Where two or more firms desire to submit a single proposal in response to thi s RFQ, they should do so on a prime-sub-consultant basis rather than as a joint venture. City intends to contract with a single firm per agreement and not with multiple firms doing business as a joint venture.
Exceptions and Deviations
The firm(s) shall enter into an agreement with the City based upon the contents of the RFQ and the firm’s proposal. The City’s standard form of agreement is included in Section VI . The firm(s) shall carefully review the agreement, especially with regard to the indemnity and insurance provisions, and include with the proposal a description of any exceptions, technical or contractual, requested to the standard contract . If there are exceptions or no exceptions, a statement to the effect shall be included in the proposal as well. All firms are required to complete an Exceptions Form and include in your proposal, which is included in Section VIII of this RFQ.
Insurance Requirements
The consultant shall procure and maintain throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection 6 with the performance of the work hereunder by the consultant, his agents, representatives, employees or subcontractors. Consultant shall provide current evidence of the required insurance in a form acceptable to the City and shall provide replacement evidence for a ny required insurance which expires prior to the completion, expiration or termination of this Agreement.
See attached sample Professional Services Agreement for insurance requirements. 7 SECTION IV
REQUIRED PROPOSAL CONTENT
Proposal Format and Content
This section provides the requirements for which the City will look for and expect to be included in the proposal.
Electronic proposal will be submitted in a format that will print on 8 ½” x 11" size paper and uploaded in one (1) USB flash drive or through PublicPurchase . Charts and schedules must be submitted in a format that will print on an 8 ½” x 11” size paper . The firm(s) should not include any unnecessary elaborate or promotional material. Lengthy narrative is discouraged , and presentations should be brief and concise.
Letter of Transmittal
The Letter of Transmittal shall be addressed to the City of Fullerton and, at a minimum, contain the following:
(1) Identification of proposer that will have contractual responsibility with the City.
Identification shall include legal name of company, corporate address, and telephone number. Include name, title, address, email and telephone number of the contact person identified during period of proposal evaluation.
(2) Identification of all proposed sub-consultants (if known) including legal name of company, contact person’s name and address, and phone number. Relationship between proposer and sub-consultant if applicable.
(3) Acknowledgment of receipt of all RFQ addenda, if any. (4) A statement to the effect that the proposal shall remain valid for a period of no less than 120 days from the date of submittal.
(5) Signature of a person authorized to bind proposer to the terms of the proposal. (6) Signed statement attesting that all information submitted with the proposal is true and correct.
Technical Proposal
Qualifications, Related Experience, and References of Proposer This section of the proposal should establish the ability of the firm(s) to satisfactorily perform the required work by reasons of: experience in performing work of the same or similar nature ; demonstrated experience working with other public agencies; strength and stability of the firm(s); 8 staffing capability; work load; record of meeting schedules on similar contracts; and supportive client references. Most recent references preferred.
Proposer to:
(1) Provide an overview of the proposal (including the firm’s relevant experience), a summary of the firm’s understanding of the requested Scope of Work, and its approach to providing those services.
(2) A brief description of your firm’s background , size, and history as it may be relevant to the services required. Include subconsultants as applicable. (3) Describe your experience providing similar services for other public agencies and authorities, with an emphasis on California jurisdictions and agencies. (4) References – Please provide at least three (3) client references for whom your firm has performed similar work to that requested in this RFQ during the past five (5) years. For each client, please provide the name, project lead, street address, tele phone number, and email address.
Proposed Staffing and Organization
This section of the proposal should establish the method that will be used by the firm to manage the agreement as well as identify key personnel assigned. Proposed staffing and organization are to be presented by firm identified in the Scope of Work.
Proposer to:
(1) Provide education, verifiable experience and applicable professional credentials of contract staff. Include applicable professional credentials of “key” contract staff. (2) Furnish brief resumes (no more than one page each) for key personnel. (3) Identify key personnel proposed to perform the work in the specified tasks and include major areas of subcontract work. Include the person's name, current location, and proposed position for this project, current assignment, and level of commitment to that assignment, availability for this assignment and how long each person has been with the firm. (4) Include an organization chart that clearly delineates communication/reporting relationships among the staff, including sub-consultants (if applicable). (5) Include a statement that key personnel will be available to the extent proposed for the duration of the project, acknowledging that no person designated as "key" to the contract shall be removed or replaced without the prior written concurrence of the City.
Detailed Work Plan
Proposer shall provide a narrative that addresses the Scope of Work and shows proposer's understanding of City's needs and requirements.
9 The Proposer shall:
(1) Describe the proposed approach and work plan for completing the services specified in the Scope of Work. The description of the approach shall discuss the services in sufficient detail to demonstrate the proposer’s ability to accomplish the City’s objectives. (2) Describe approach to managing resources, including a description of the role(s) of any sub - consultants, if applicable, their specific responsibilities, and how their work will be supervised.
Identify methods that proposer will use to ensure quality, budget, and schedule control.
Fee or Rate Proposal
Submit a rate sheet of key personnel who will be assigned to perform the services outlined in the “Scope of Work” of this RFQ. Describe how customary reimbursable expenses will be charged, including attendance at meetings in the City. Respondents verify the proposed costs are their best offer. The City may seek to enter into cost negotiations over various aspects of the fee proposal with the selected firm(s). Rates will be set for the first year, and selected firm(s) may update the rates for the subsequent years. Any proposed requests to change the adopted rates annually shall not exceed the relevant Consumer Price Index for the preceding 12 -month period and is also subject to cost negotiation. Other direct costs intended to be charged to the City need to be stated. No mark-ups will be allowed for other direct costs.
Appendices
Information considered by proposer to be pertinent to this contract and which has not been specifically solicited in any of the aforementioned sections may be placed in a separate appendix section. Please note that this does not constitute an invitation to submit large amounts of extraneous materials. Appendices should be relevant and brief.
Status of Past and Present Contracts Form
Firm(s) are required to complete and sign the form entitled “Status of Past and Present Contracts” provided in this RFQ and submit as part of the proposal. The firm shall list the status of past and present contracts where either the firm has provided services as a p rime contractor or a sub - consultant during the past five ( 5) years and the contract has ended or will end in termination, settlement or litigation. A separate form shall be completed for each contract. If the contract was terminated, list the reason for termination. Firm must also identify and state the status of any litigation, claims or settlement agreements related to any of the identified contracts. Each form must be signed by the firm confirming that the information provided is true and accurate. The firm(s) are required to submit a copy of the completed form(s) as part of the proposal. 10 SECTION V
EVALUATION AND AWARD
Evaluation Criteria
City will evaluate the proposals received based on the following criteria, but not limited to, as outlined below. Respondents who are not actively engaged in providing services of the nature proposed in their response to this request and/or who cannot clearly demonstrate to the satisfaction of the City their ability to satisfactorily perform the work i n accordance with the requirements set forth in this request will not be considered. The City shall be the sole judge of the qualifications and services and its decision shall be final. Discussions may be conducted with respondents who submit qualification s determined to be reasonably acceptable of being selected for award. Any changes to the RFQ requirements will be made by addendum. All addenda shall be signed by firms and attached to the proposal. Failure to attach any addenda may render the proposal non -responsive and cause it to be eliminated from consideration.
City will evaluate the proposals received based on the following criteria:
1. Qualifications of the Firm - Technical experience in performing work of a similar nature; experience working with public agencies is mandatory; strength and stability of the firm; and assessment by client references.
2. Project Management Approach - Qualifications of proposed key personnel; logic of organization; and adequacy of labor commitment and resources to satisfactorily perform the requested services and meet the City’s needs.
3. Detailed Work Plan - Thorough understanding of the City's requirements and objectives; logic, clarity, specificity, and overall quality of work plan.
4. Fee Proposal - Reasonableness of proposed fees or rates.
The City will select a firm based upon the responding firms’ qualifications and experience, together with its resp onses to the requests for information set forth above. It should be noted that none of these factors in and of themselves are determinative, and the City reserves the right to select a firm on any basis that is in the best interests of the City. The City may contact firms in response to questions raised in their proposals and the City reserves the right to cancel this solicitation without selecting any firms.
Evaluation Procedure
An Evaluation Committee will review all proposals. The committee will be comprised of City staff and may include outside consultants. The City of Fullerton reserves the right to request clarification of additional information from any firm at any time. The committee will recommend to the City Manager the firm(s) whose proposal is most advantageous to the City of Fullerton. If required, the City Manager will then forward its recommendation to the City Council for final action. 11 After the submittals are evaluated, the City, at its sole discretion, may elect to interview all, some, or none of the firms. The interview will help to clarify each proposal, approach and qualifications for the services requested in the scope of work . Firms may be asked to submit additional documentation at or after the interview stage. Based upon the interview and evaluation of the proposals, the top-ranked firm will be recommended to the City Manager and/or City Council (if necessary). In addition, the City reserves the right to select a firm without conducting interviews or to abandon this RFQ. Final selection of a firm and authority awarding the contract to proceed with these services shall be at the sole discretion of the City and if required, City Council.
Award
The City of Fullerton may negotiate contract terms with the selected firm(s) prior to award, and expressly reserves the right to negotiate with several firms simultaneously. However, since the selection and award may be made without discussion with any firm, the proposal submitted should contain firm's most favorable terms and conditions.
City Manager and/or City Council action will be requested by City staff to award contract to the selected firm(s).
Notification of Award
Firms who submit a proposal in response to this RFQ shall be notified regarding the firm(s) awarded a contract. Such notification shall be made within seven (7) days of the date the contract is awarded.
Notification of Intent to Award will be emailed to firms w ho submitted a proposal, and will also be available on the City’s bid webpage www.cityoffullerton.com/business/bids-rfps and on the City’s eProcurement platform (www.publicpurchase.com).
Tentative Schedule
** Tentative Schedule may be changed at the City’s discretion, Interviews and Negotiations will be scheduled if required **
Release of RFQ August 9, 2022
Question Submittal Deadline August 17, 2022, at 4:00 P.M. PST Response to Questions Posted August 22, 2022
RFQ Submittal Deadline August 31, 2022, at 2:00 P.M. PST Consultant Interviews/Contract TBD
Scope Negotiations
Contract Award September 20, 2022
12 SECTION VI
SAMPLE PROFESSIONAL SERVICES AGREEMENT
SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
CITY OF FULLERTON
PROFESSIONAL SERVICES AGREEMENT
WITH
[VENDOR/CONSULTANT BUSINESS NAME]
THIS AGREEMENT is made and entered into this __ day of [MONTH, YEAR] (“Effective Date”), by and between the CITY OF FULLERTON, a California municipal corporation (“City”), and [VENDOR/CONSULTANT BUSINESS NAME], a [California corporation] (“Consultant”).
W I T N E S S E T H :
A. City proposes to utilize the services of Consultant as an independent contractor to provide certain [ INSERT BRIEF DESCRIPTION OF SCOPE OF SERVICE ] services, as more fully described herein.
B. Consultant represents that it has that degree of specialized expertise contemplated within California Government Code section 37103, and holds all necessary licenses to practice and perform the services herein contemplated.
C. City and Consultant desire to contract for the specific services described herein, and desire to set forth their rights, duties and liabilities in connection with the services to be performed.
D. No official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described in the [Services & Fees Schedule attached hereto as Exhibit “A”] and incorporated herein by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws and regulations that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement.
1.3. Performance to Satisfaction of City . Consultant agrees to perform all the work to the reasonable satisfaction of the City, in accordance with the applicable professional standard of care and City specifications and within the hereinafter specified. Evaluations of the wor k will be done by the City Manager or his designee. If the quality of work is not satisfactory, City in its discretion has the right to:
SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
(a) Meet with Consultant to review the quality of the work and resolve the matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable and non conflicting Federal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers’ compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement . Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys’ fees and costs, presented, brought, or recovered against Ci ty for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant’s performance under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pu rsuant to Section 12940 of the Government Code.
1.6. Non-Exclusive Agreement . Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its ow n employees perform services similar to those services contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Consultant may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Consultant’s sole cost and expense.
1.8. Confidentiality. Employees of Consultant in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the [fee schedule set forth in Exhibit A].
SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
2.2. Additional Services. Consultant may perform the [additional services described in Exhibit “B”] attached hereto and incorporated herein by this reference if specifically engaged to do so by City. Consultant shall not receive compensation for any services provided outside the scope of services specified in [Exhibit A] unless the City or the Project Manager for this Project, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
2.3. Method of Billing. Consultant may submit invoices to the City for approval on a progress basis, but no more often than two times a month. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction. City shall pay Consultant’s invoice within fourty-five (45) days from the date City receives said invoice.
Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at m utually convenient times from the Effective Date of this Agreement until three (3) years after the termination date.
2.5. W-9. Consultant must provide City with a current W -9 form prior to the commencement of work under this Agreement. It is the Consultant’s responsibility to provide to the City any revised or updated W-9 form during the term of this Agreement.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work . The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusable Delays . Neither pa rty shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue through [ INSERT TERMINATION DATE (i.e. December 31, 2020)], unless terminated as provided herein.
4.2. Notice of Termination . The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant.
The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
services under this Agreement unless directed otherwise by the City.
4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including the date of City’s written notice of termination. Compensation for work in progress shall be prorated based on the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional se rvices actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services c ontemplated herein whether delivered to the City or in the possession of the Consultant.
4.4. Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncomp leted documents without specific written authorization from Consultant shall be at City's sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Insurance Required . Consultant shall procure and maintain throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Consultant, its agents, representatives, employees or subcontractors. Consultant shall provide current evidence of the required insurance in a form acceptable to City and shall provide replacement evidence for any required insurance which expires prior to the completion, expiration, or termination of this Agreement.
Nothing in this section shall be construed as limiting in any way, the Indemnification and Hold Harmless clause contained herein in Section 6.8 or the extent to which Consultant may be held responsible for payments of damages to persons or property.
5.2. Minimum Scope and Limits of Insurance.
A. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance coverage in a form at least as broad as ISO Form #CG 00 01, with a limit of not less than $1,000,000 each occurrence. If such insurance contains a general aggregate limit, it shall apply separately to the Agreement or shall be twice the required occurrence limit.
B. Business Automobile Liability Insurance. Consultant shall maintain business automobile liability insurance coverage in a form at least as broad as ISO Form # CA 00 01, with a limit of not less than $1 ,000,000 each accident. Such insurance shall include coverage for owned, hired and non-owned automobiles.
C. Workers’ Compensation and Employers’ Liability Insurance. Consultant shall maintain workers’ compensation insurance as required by the State of California and employers’ liability insurance with limits of not less than $1,000,000 each accident.
SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
D. Professional Liability Insurance. Consultant shall maintain professional liability insurance appropriate to Consultant’s profession with a limit of not less than $2,000,000.
Architects’ and engineers’ coverage shall be endorsed to include contractual liability. If policy is written as a “claims made” policy, the retro date of the policy shall be prior to the start of the contract work.
E. Employee/Officer Fidelity Bond. Consultant shall maintain a fidelity bond with a minimum limit of $1,000,000, providing coverage for the acts of all employees, officers and directors of Consultant.
F. Cyber Liability Insurance. C onsultant shall maintain cyber liability insurance coverage with a limit of not less than $2,000,000 per claim and $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Consultant in this Agreement and shall include but not be limited to claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security.
The policy shall provide coverage for breach response costs as well as regulatory fines, penalties and credit monitoring expenses with limits sufficient to respond to these obligations.
5.3. Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be declared to and approved by City.
5.4. Other Insurance Provisions. The required insurance policies shall contain or be endorsed to contain the following provisions:
A. Commercial General Liability. City, its elected or appointed officials, officers, employees and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of C onsultant, including materials, parts or equipment furnished in connection with such work or operations. Such coverage as an additional insured shall not be limited to the period of time during which Consultant is conducting ongoing operations for City but rather, shall continue after the completion of such operations. The coverage shall contain no special limitations on the scope of its protection afforded to C ity, its officers, employees and volunteers.
B. Commercial General Liability. This insurance shall be primary insurance as respects City, its officers, employees and volunteers and shall apply separately to each insured against whom a suit is brought or a claim is made. Any insurance or self -insurance maintained by City, its officers, employees and volunteers shall be excess of this ins urance and shall not contribute with it.
C. Professional Liability . If the Professional Liability policy is written on a “claims made” form, the Retroactive Date must be shown and must be before the date of the contract or beginning of contract work. The in surance must be maintained and evidence of insurance must be provided for at least (5) years after completion of the contract work. If the coverage is canceled or non-renewed and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting coverage” for a minimum of five (5) years after completion of work.
D. Workers’ Compensation and Employers’ Liability Insurance. Insurer shall waive their right of subrogation against City, its officers, employees and volunteers for work done SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
on behalf of City.
E. Employee/Officer Fidelity Bond, C ity shall be named as third party beneficiary for losses arising from work done on behalf of City.
F. All Coverages. E ach insurance pol icy required by this clause shall be endorsed to state that coverage shall not be canceled, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to City.
If Consultant maintains higher limits or has broader coverage than the minimums shown above, City requires and shall be entitled to all coverage, and to the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum lim its of insurance and coverage shall be available to City.
G. Subcontractors. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein and Consultant shall ensure that City is an additional insured on insurance required from subconsultants.
H. Special Risks or Circumstances. C ity reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.
5.5 Acceptability of Insurers . All required insurance shall be placed with insurers acceptable to City with current BEST’S ratings of no less than A, Class VII. Workers’ compensation insurance may be placed with the California State Compensation Insurance Fund.
All insurers shall be licensed by or hold admitted status in the State of California. At the sole discretion of City, insurance provided by non-admitted or surplus carriers with a minimum BEST’S rating of no less than A- Class X may be accepted if Consultant evidences the requisite need to the sole satisfaction of City.
5.6 Verification of Coverage. Consultant shall furnish City with certificates of insurance which bear original signatures of authorized agents and which reflect insurers names and addresses, policy numbers, coverage, limits, deductibles and self -insured retentions.
Additionally, C onsultant shall furnish copies of all policy endorsements required herein. All certificates and endorsements must be received and approved by City before work commences.
City reserves the right to require at any time complete, certified copies of any or all required insurance policies and endorsements.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
6.2. Representatives. The City Manager or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Project Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with C ity during the term of this Agreement. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail.
IF TO CONSULTANT: IF TO CITY:
[VENDOR/CONSULTANT NAME]
[MAILING ADDRESS]
Attn: [NAME AND TITLE]
City of Fullerton
303 W. Commonwealth Ave.
Fullerton, CA 92832
Attn: [NAME AND TITLE]
6.5. Attorneys’ Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof.
6.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California.
6.7. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement.
6.8. Indemnification and Hold Harmless . To the fullest extent of the law, Consultant agrees to defend, indemnify, hold free and harmless the City, its elected officials, officers, agents, SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
and employees, at Consultant’s sole expense, from and against claims, actions, suits or other legal proceedings brought against the City, its elected officials, officers, agents, and employees arising out of the performance of the Consultant, its employees, and/or authorized subcontractors, of the professional services undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Consultant, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected officials, officers, agents, and employees based upon the work performed by Consultant, its employees, and/or authorized subc ontractors under this Agreement, whether or not Cons ultant, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable .
Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification of the City for claims, actions, compla ints, or suits arising out of the sole negligence or willful misconduct of the City. This provision shall supersede and replace all other indemnity provisions contained either in the City’s specifications or Consultant’s Proposal, which shall be of no for ce and effect.
6.9. Independent Contractor . Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or othe rwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, repr esent that it or any of its or employees are in any manner agents or employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Consultant shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant further agrees to indemnify and hold City harmless from any failure of Cons ultant to comply with the applicable worker’s compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptl y pay to City any reimbursement or indemnification arising under this paragraph.
6.10. PERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment o f any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
any contribution to be paid by Cit y for employer contribution and/or employee contributions for PERS benefits.
6.11. Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require.
6.12. Ownership of Documents . All findings, reports, CAD drawings, documents, information and data , including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from City’s use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consultant. Consultant shall deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files, audio tapes or any other Project related items as requ ested by City or its authorized representative, at no additional cost to the City.
6.13. Public Records Act Disclosure . Consultant has been advised and is aware that this Agreement and all reports, documents, information and data , including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Recor ds Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret inc luding, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
6.14. Conflict of Interest . Consultant and its officers, employees, associates and subconsultants, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090.
During the term of this Agreement, Consultant and its officers, employees, associates and subconsultants shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subconsultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
6.15. Responsibility for Errors. Consultant shall be re sponsible for its work under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, without prejudice to any other remedy to which City may be entitled to at law or equity, Consultant shall, at no cost to City, provide all necessary design drawings, estimates and oth er Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
and to participate in any meeting required with regard to the correction. In addition, Consultant shall reimburse City for any and all costs, expenses and/or damages, if any, that the City has incurred due to the aforementioned error or omission.
6.16. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
6.18. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
6.19. No Third Party Benefici ary Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
6.20. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
6.21. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Ag reement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.22. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6.23. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.24. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be u nenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be SAMPLE ONLY – NOT REQUIRED WITH PROPOSAL
[CONSULTANT NAME]
binding, then both parties agree to substitute such provision(s) through good faith negotiations.
6.25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
6.26. Corporate Authority . The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provision s of this Agreement.
6.27 Executive Order N -6-22. On March 4, 2022, Governor Gavin Newsom issued Executive Order N -6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions i mposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entit ies that are determined to be a target of Economic Sanctions. Accordingly, should the City determine Contractor is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for te rmination of this agreement. The City shall provide Contractor advance written notice of such termination, allowing Contractor at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the City.
Contractor shall immediately notify City in writing upon being subjected to Economic Sanctions or upon being charged by an government agency of conducting prohibited transactions within the meaning of Executive Order N-6-22.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written.
CITY OF FULLERTON
__________________________________ Date: __________________________ City Manager
CONSULTANT
__________________________________ Date: __________________________ [NAME AND TITLE]
_On File___________________________
Social Security or Taxpayer ID Number
APPROVED AS TO FORM:
24 __________________________________
Richard D. Jones, City Attorney
25 SECTION VII
STATUS OF PAST AND PRESENT CONTRACT FORM
Firm is required to complete and sign the form entitled “Status of Past and Present Contracts” provided in this RFQ and submit as part of the proposal. Firm shall list the status of past and present contracts where either the firm has provided services as a pri me contractor or a sub - consultant during the past five (5) years and the contract has ended or will end in termination, settlement or litigation. A separate form shall be completed for each contract. If the contract was terminated, list the reason for term ination. Firm must also identify and state the status of any litigation, claims or settlement agreements related to any of the identified contracts. If no contract ended in termination, settlement or litigation, a statement to that effect shall be made on this form. Each form must be signed by the firm’s confirming that the information provided is true and accurate. Firm is required to submit a copy of the completed form(s) as part o f the electronic proposal on the one (1) USB Drive requested.
By signing this Form entitled “Status of Past and Present Contracts,” I am affirming that all of the information provided is true and accurate.
Signature_________________________ Date___________________________ Name: ___________________________
Title:_____________________________
26 SECTION VIII
EXCEPTIONS FORM
If your company is taking exception to any of the specifications, terms or conditions (including insurance indemnification and/or proposed contract language) stated in this Request for Qualifications, please indicate below and describe details: (check any that apply). _____ No exceptions taken
_____ Exception taken to the scope of work or specifications _____ Exception taken to indemnification and insurance requirements _____ Exception to proposed contract language
_____ Other
Please explain any of the checked items
______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ PROPOSING FIRM___________________________________________ DATE____________ BUSINESS ADDRESS _________________________________________________________ SIGNATURE OF REPRESENTATIVE:_____________________________________________ BY:_____________________________________ TITLE ______________________________ INSTRUCTION REGARDING SIGNATURE: If proposer is an individual, state "Sole Owner" after signature. If firm is a partnership, signature must be by a general partner, so stated after "Title".
Names of all other partners and their business addresses must be shown below. If proposer is a corporation, signature must be by an authorized officer, so stated after "Title", and the names of the President and Secretary and their business addresses must be shown below:
___________________________________ ______________________________________ ___________________________________ ______________________________________ ___________________________________ ______________________________________ ___________________________________ ______________________________________
RFQ# 4377 On-Call Real Property & Right-Of-Way Services Questions & Responses
1. Are all of the insurance requirements and minimums listed in the sample agreement required of this contract as well? Are they required of subconsultants too?
RESPONSE: Yes, all insurance requirements and minimums listed in the sample agreement are required for the On-Call Contract(s).
Insurance requirements are also required for subconsultants, but that responsibility falls on the prime consultant.
2. Paragraph 5.2.F - Cyber Liability Insurance: We currently have $1MM in Cyber Liability Insurance. Would the City of Fullerton accept our $1MM?
RESPONSE: Yes, but it must include a $2 million aggregate.
3. Sample Agreement, Paragraph 6.8 - Indemnification and Hold Harmless: We would like to request additional language be added to account for a finding of comparative fault.
Suggested language: "If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of the City , then Consultant's indemnification and defense obligations shall not exceed Consultant's proportionate percentage of fault."
RESPONSE: The City cannot accept this modification to the language contract at the moment.
However, proposers may submit this request with the RFQ. If selected, City Attorney will review the modification to the contract language for acceptance or declination.
4. Does the City have an existing bench of on-call appraisers and appraisal reviewers?
RESPONSE: No, the City does not have an existing bench of on -call appraisers and appraisal reviewers.
5. Does the City have an existing bench of on-call title insurance firms?
RESPONSE: No, the City does not have an existing bench of on-call title insurance firms.
Professional On-Call Real Property and Right Of Way Services City of Fullerton
EXHIBIT B
CONSULTANT’S PROPOSAL
City of Fullerton - Purchasing
August 17, 2022
Service Proposal:
Qualifications and Related Experience
I possess over 25 years in the Right of Way field, working as a Right of Way Agent for such firms as Cutler & Associates, Overland Resources, OPC, Inc and Consultant Engineering, Inc., as well as served as the City of F ullerton’s Real Property Agent for 15yrs, first as a c onsultant and then staff from 12/2007 – 12/2019. Most recently I functioned as a subconsultant for Epic Land Solutions provid ing Right of Way and Real Property Services to t he City ’s Public Work s Department; the prime contract expired effective June 30, 2022.
During my tenure with the City, I worked on Private Development, Parks and Recr eation and CIP projects and as noted in the Resume section of this proposal, I was responsible for all aspects of Right of Way and Real Property, which included, but not limited to acqui sitions, disposition, leasing and title clearance. In my mo st recent service to the City, some of my responsibilities included processing Encroachment Agreement Applications, conveyance document review, and verification of land ownership.
Resume:
07/2021 – 06/2022 Subconsultant: Epic Land Solutions 1971 W. 19 0th Street, S te. 200 , Torrance, CA 90504
Right of Way Agent, providing right of way consulting services to the City of Fullerton wherein I was responsible for the review and processing of Applications for Encroachments; verification of ownership of certain rights of ways in the city, and other duties a s assigned pertaining to right of way and real property matters.
12/2019 – Present: Sr. Right of Way Agent; Co nsultant Engineering Inc.; 10625 N. 25 th Avenue, Ste. 200, Phoenix, AZ 85029
Currently serving as a consultant Right of Way Project Coordinator for the Arizona Department of Transportation (ADOT) Infrastructure Delivery and Operations Project Ma nagement Division.
As a Right of Way Project Co ordinator, I am responsible for all right of way act ivities associated with assigned highway construction projects through to project completion, as well as providing oversight on Local Public Agency projects assigned to me. My duties and tasks include, b ut are not limited to the following: attending publi c and project team meetings, p roviding input for project scopes, schedules and budgets, providing cost estimates for departmental staff services, monitoring project parcel acquisition progress and parcel inventory, project status report preparation for administration, appraisal requests, monitoring, and review, providing right of way project clearances required for project construction and/or federal aid reimbursement.
12/2007 – 12/2019: Real Property Agent; City of Fullerton; 303 W. Commonwealth Avenue, Fullerton, CA 92832
Duties included, but not limited to coordinating and completing routine real property transactions with private property owners, public agencies, business owners and public utilities to include land acquisition and d isposition; determining and pr eparing appropriate legal documents for transactions, such as purchase agreements, grant deeds, easements, leases, quitclaims, lot line City of Fullerton - Purchasing
August 17, 2022
adjustments, and right -to-enter agre ements; ob taining, and interpreting title reports and other legal documents. Addit ional responsibilities include training/supervision of interns for Private Development Division, land/parcel valuation, status r eport and agenda letter preparation, transaction tracking, coordinating review and granting of licenses, and encroachment agreements.
I have also performed project management functions for some minor capital improvement projects through to project delivery including project planning, pre -design and en gineering consultant oversight.
2/2002 – 12/2007: Sr. Acquisition Consultant I; Overland, Pacific & Cutler, Inc. 100 W. Broadway, #500, Long Beach, CA 90802
Duties included acquisitions and relocations, property management and contract negotiations with sellers and buyers; escrow coordination, title clearance, appraisal review and Notary.
7/2000 – 2/2002: Acquisition Consultant, Overland Resources, Inc. 24422 Ave. De La Carlota, Suite 275, Lag. Hills, CA 92653
My duties included acquisitions, relocations and property management. I was responsible for the acquisition and management of multiple affordable housing units at the Evergreen Villas, in Yorba Linda. Other responsibilities included preparing cost estimates, relocation plans, an d real estate comparison studies. Also, I was responsible for property searches t o assist potential displacees in finding alternative housing, sales and general consulting.
9/1999-7/2000: Asst. Property Manager, Tricony Management, LLC. 255 S. Orange Ave., #1255, Orlando, FL 32801
Responsibilities included supervision and man agement of vendor services, administrative and janitorial staff, all A/R and A/P processing via Skyline and tenant inquiry resolution.
1/1996 – 8/1999: Property Manager, TriQuest Development Company 15375 Barranca Parkway, #E-102, Irvine, CA 92618
Responsibilities included the hiring and supervision of on -site administrative, general and landscape maintenance personnel. Other duties inclu ded marketing, all aspects of lease negotiations, project coordination and management, budgeting, A/P and A/R , vendor contract management, tenant improvement scheduling and construction supervision.
Education:
International Right of Wa y Association, Torrance, CA; Senior Right of Wa y A gent ( SR/WA) Designation
Barry University, Orlando, FL, major: Public Administration Coastline Comm. College, Costa Mesa, CA, major: Business Administration
Licenses & Certifications:
Arizona Real Estate Brokers License, Arizona Dept. of Real Estate, 7/2021 Arizona Notary Public Commission, State of Arizona, 8/2021 California Real Estate Brokers License, California Dept. of Real Estate, 4/2005 California Notary Commission, State of California, 1997 - 2019 California Real Estate Salesperson License, Cal ifornia D ept. of Real Estate, 1994 - 2005 City of Fullerton - Purchasing
August 17, 2022
Staffing and Work Plan
It is my unders tanding th at the City is seeking an O n-Call Consultant to provide Rea l Property and Right of Way Services and the task to be perfo rmed are, but not l imited to, the following:
1. Review/process Encroachment Agreement A pplications through to executed agreement.
2. Review exhibits and design plans as needed.
3. Review City record documents, tit le documents, legal descriptions, and others as needed.
4. Coordinate with C ity staff with regard to the terms of the agreement; coordinate with the applicant to ensure all submittal requirements are met.
5. Coordination with the City Attorney on verbiage that may need to be added to a particular agreement to ensure the City’s protection from any liabilit y associated with improvements anticipated by the applicant.
6. Assist City with deve lopment, issuance, and tracking of Encroachment Agreements.
7. Coordinate with City Staff to Develop and maintain encroachment / easement database.
8. Participate in virtual meetings as needed.
9. Obtain information and documentation to resolve real property issues as they relate to Capital Improvement Program (CIP) projects and/or private developments.
10. Prepare contracts, agreements, leases, deed s, reconveyances, and other means used t o obtain or vacate interests in real property. Research maps, surveys and other documentations as needed from County Recorder.
11. Other right of way and real property support services as needed and outlined in said RFQ#4377.
I will be solely responsible for providing the services noted above without additional staff support. S hould any task assigned, due to it s com plexity or si ze req uire additional support to accomplish, I will enlist the assistance of a third party Right of Way firm to aid in completing the required task. I will secure a proposal from a firm, or multiple firms , and present the propos als to the City for th eir approva l of one the firms and their proposed rate prior to securing their services. I will provide oversight to e nsure the selected firm is op erating in accordance with the master c ontract and will meet the required deadlines for any associated deliverables.
All of the services will be perfo rmed remotely, including any required meetings unless actual at tendance is required. I f physical atten dance is required at a meeting or City function, City will reimburse reasonable travel and lodging expenses incurred.
City of Fullerton - Purchasing
August 17, 2022
Proposed Rate and Term for Services
The rate for the services described herein shall be $100/hr., plus expenses. The proposed initial term shall be t hree (3) years, with an o ption for additional two-year terms. The proposed rate shall be adjusted 5% annually and shall not exceed $150/hr.
Reimbursable f ees anticipated are postage co sts of approximately $10 per package for certified mail ing of documents and agreement pac kages, reimbursement of title report and appraisal fees based on prop osal from tit le and/or appraisal company and approved by City. As previously noted, any reasonable travel and lodging expenses inc urred specific to a City request for attendance at a meeting or any other City function requir ing a physical presence will be reimbursable.
References:
1. David Grantham, P.E.
City of Fullerton
Public Works- Engineering
303 W. Commonwealth Avenue
Fullerton, CA 92832
714-738-6853
[email protected]
2. Sylvia Chavez
Former Housing Programs Assistant
City of Fullerton
6172 Lee Drive
Cypress, CA 90630
714-309-8296
[email protected]
3. Dr. Anita Polite-Wilson
Founder & CEO of Dr. Anita Enterprises, Inc.
2034 E. Lincoln Ave.
Suite 416
Anaheim, CA 92806
714-307-3719
[email protected]
4. Linda Morad Cordova
Former Housing Programs Supervisor
City of Fullerton
3117 Brunstane Lane
Corona, CA 92882
714-343-0887
[email protected]
City of Fullerton - Purchasing
August 17, 2022