CITY OF LAGUNA NIGUEL
CITY COUNCIL AGENDA ITEM
To: Honorable Mayor and Council Members
FROM: Justin J. Martin, Assistant City Manager
DATE: May 21, 2024
SUBJECT: Approval of Multi-Year Professional Services Agreements for On-Call Video Production Services
RECOMMENDATION
Staff recommends that the City Council:
1. Approve Multi-Year Professional Services Agreements for On-Call Video Production Services, subject to extension administratively for two additional one- year periods, with the following firms (listed alphabetically):
• Bakers Man Productions, LLC
• Born Ready Films, LLC
• Encore Communications
• Marabate Studios
Network Television Time, Inc.
• Polarlight Productions, LLC
2. Authorize the City Manager to execute the Multi-Year Professional Services Agreements and future amendments to the agreements, subject to the City Attorney making non-substantive changes.
BACKGROUND
On March 8, 2024, staff issued a Request for Proposals (RFP) (Attachment "A"), to select one highly qualified firm to provide Audio Visual (AV) Production Services and multiple highly qualified firms for On-Call Video Production Services to augment the City's community engagement and outreach efforts.
The RFP provided firms the opportunity to submit a proposal for AV Production Services and/or On-Call Video Production Services. However, no priority was given to proposers offering both services, as the proposed services were evaluated independently.
The selected firm for AV Production Services will enter into a standard Professional Services Agreement with the City. Meanwhile, the selected firms for On-Call Video Production Services will enter into a no-fee, no-scope Professional Services Agreement with the City until June 30, 2027, subject to extension administratively for two additional one-year periods. A copy of the City's Standard On-Call Professional Services Agreement is included as Attachment "B".
Once the no-fee, no-scope Multi-Year Professional Services Agreements are approved and executed, when a specific need arises and upon request by City staff, a selected on- call consultant will provide a detailed project or task proposal in accordance with the rates approved in the On-Call Agreement. An Amendment to the no-fee, no-scope Multi-Year On-Call Agreement will then be executed in accordance with the City's Purchasing Policy.
ANALYSIS
In response to the City's RFP, six proposals were received prior to the March 29, 2024, deadline. Three of the six proposals were for AV Production Services and On-Call Video Production Services, while the remaining three proposals focused solely on On-Call Video Production Services. All proposals were thoroughly evaluated based on the following criteria: (1) Qualifications and Experience; (2) Availability and Approach; (3) Client References; (4) Cost; and (5) Interview. Additionally, all six firms underwent interviews and had their client references verified as part of the evaluation process.
Upon evaluation of the proposals, staff has selected Bakers Man Productions, LLC to provide AV Production Services. Their fee schedule falls within the City Manager's signing authority, allowing for the professional services agreement to be fully executed separately. To ensure a smooth transition, services are scheduled to start before the current service provider's five-year agreement expires on June 30, 2024.
For On-Call Video Production Services, staff recommends awarding no-fee, no-scope Multi-Year Professional Services Agreements to the six recommended firms. This will establish an On-Call Prequalified List for video production services, enhancing community engagement efforts and facilitating timely video project delivery. This prequalified list of firms will be available to all City departments to solicit professional services in support of their functions and projects, if necessary.
Additionally, throughout the term of the Multi-Year Professional Services Agreements, City staff is able to request from any number of the prequalified firms a detailed project or task proposal in accordance with the rates approved in that Agreement. An Amendment to the Multi-Year Professional Services Agreement would then be executed in accordance with the City's Purchasing Policy for the recommended firm's services on that project or program.
ALTERNATIVES CONSIDERED
The City Council may decide not to approve one or more of the Multi-Year Professional Services Agreements. This alternative is not recommended as it will result in additional staff time and resources to select a firm. The On-Call Prequalified List allows staff to efficiently select firms for specific projects in compliance with the City's Purchasing Policy.
FISCAL REVIEW
There is no fiscal impact as a result of the approval of the no-fee, no-scope Multi-Year Professional Services Agreements with the recommended firms. Specific scopes of services would be awarded through an Amendment to the Agreement on a per project basis in accordance with the City's Purchasing Policy and related ordinances.
LEGAL REVIEW
The City Attorney's Office has reviewed the Multi-Year Professional Services Agreement and has approved the documents as to form.
CONCLUSION
Staff recommends that the City Council:
1. Approve Multi-Year Professional Services Agreements for On-Call Video Production Services, subject to extension administratively for two additional one- year periods, with the recommended firms.
2. Authorize the City Manager to execute the Multi-Year Professional Services Agreements, and future amendments to the agreements, subject to the City Attorney making non-substantive changes.
Jamasa Setaunan Let Machs
Tamara S. Létourneau Justin J. Martin
City Manager Assistant City Manager
Queten Marten for:
Favian J. Bravo Dorna Farhadi
Management Analyst Human Resources Manager
Store CroweR
Stacey T. Chavez
Deputy City Clerk
Attachments:
A. RFP for Audio Visual Production Services and On-Call Video Production Services
B. Standard On-Call Professional Services Agreement
ATTACHMENT A
RFP for Audio Visual Production Services and
On-Call Video Production Services
BITY DILA CUN IGUE
COUN
1989
Request for Proposals (RFP)
for
Audio-Visual Production Services
& On-Call Video Production Services
Administration Department
30111 Crown Valley Parkway
Laguna Niguel, CA 92677
(949) 362-4348
Proposals must be received by:
Friday, March 29, 2024
At 2:00 P.M.
RFP OVERVIEW
RFP Title: Audio-Visual Production Services & On-Call Video Production Services
Scope of Work: See Section III (Scope of Services)
RFP Submittal Information: Interested Proposers will submit:
1. Four (4) printed copies of your Proposal in a sealed envelope or box and marked with the RFP title by the
RFP Due Date; and
2. A PDF copy of your Proposal, emailed to the City
Contact or provided via cloud service (Dropbox,
Google Drive, OneDrive, etc.).
No faxed Proposals. Late Proposals will not be accepted.
Printed Submittal Location: Laguna Niguel City Hall, Administration Department, 30111 Crown Valley Parkway, Laguna Niguel, CA 92677
RFP Due Date: March 29, 2024, by 2:00 p.m. PST
RFP Submittal Requirements: Submitted Proposals must include the information described in Section IV (Proposal Requirements and
Format) of this RFP. Submitted Proposals will be
considered non-responsive if the Proposal does not provide all the requested information.
Prior to Award of Contract: The selected Proposer must submit a Certificate of Insurance and related insurance endorsements that meet
the City's criteria.
RFP Questions: RFP questions must be submitted in the form of an email submit questions is March 18, 2024 by 500 p.mi Psi.
Questions should be addressed to the City Contact.
City Contact: Favian J. Bravo
Management Analyst
Email: [email protected]
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 2 of 33 Table of Contents
Section I - General RFP Information.
I-1. Purpose.. ..5
I-2. City Contact... 6
1-3. Addendum. 6
1-4. Inquiries.. . 6
1-5. Late proposals .7
I-6. Cancellation . ....7
I-7. Public Records.. ..7
I-8. Disputes.......... .........8
I-9. Protests. 8
I-10. Nondiscrimination 8
1-11. Proposed Liability 8
1-12. City Requests for Clarification, Additional Research, and Revisions ..8 I-13. Rejection of Proposals 9
I-14. Modification or Withdrawal of Proposal by Proposer 9 I-15. Duration of Proposal ..10
I-16. Local, State, and Federal Requirements ..10
I-17. Conflict of Interest ...10
Section II - Proposal Process ...11
II-1. RFP Timeline ..11
II-2. RFP Questions and Responses . ..11
II-3. Optional Site Walks.. 12
II-3. Process for Submitting Proposals ..12
1I-4. RFP Evaluation Process... ..13
Il-5. Interviews.. .. 13
II-6. Award of Professional Services Agreement ...14
II-7. Insurance & W-9 Requirements.. ..14
II-8. Kick-Off Meeting. ..15
Section III - Scope of Services ...15
I|I-1. Overview . . 15
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 3 of 33 IlI-2. General City Information 16
IlI-3. Scope of Services .17
Section IV - Proposal Requirements and Format ..20
IV-1. General Information ... .20
IV-2. Proposal Format Guidelines.. 20
Section V - Evaluation / Selection of Proposal ..24
V-1. Clarifications .. .24
V-2. Proposal Evaluation and Selection.. 24
V-3. Evaluation Criteria. 24
V-4. Initial Proposal Review. 25
V-5. Interviews, Reference Checks, Discussions.. 25
V-6. Compensation. ..26
Exhibit A - Sample Professional Services Agreement. ..27 Exhibit B - Certification Statement.... ..28
Exhibit C - Selection of Professional Services ..29
Exhibit D - Ex Parte Communications Certification ..30
Exhibit E - Disqualification Questionnaire ..31
Exhibit F - Council Policy: Government Access Channel Laguna Niguel TV ..32 Exhibit G - Audio-Visual System at Council Chambers .. ..33 City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 4 of 33
SECTION I - GENERAL RFP INFORMATION
I-1. PURPOSE
The City of Laguna Niguel invites highly qualified consultants ("Proposers") to submit written Proposals ("Proposals") for the following professional services, as identified in this Request for Proposal ("RFP"):
1. Audio-Visual (AV) Production Services and On-Call Video Production Services
2. Only AV Production Services
3. Only On-Call Video Production Services
The City intends to select one (1) highly qualified vendor for AV Production Services and multiple highly qualified vendors for On-Call Video Production Services to augment the City's community engagement and outreach efforts. No priority will be given to proposers offering both AV Production Services and On-Call Video Production Services.
Qualified proposers shall have two to five years of experience working with municipalities and/or public agencies, of comparable size, in providing professional-level broadcast, video production, and/or programming services, which includes but not limited to, broadcast operations, video production, program scheduling, storyboarding and other related services. It is expected that the vendor for AV Production Services will be available in accordance with the set schedule of regular meetings and will have some flexibility to provide services when the need arises, with at least 24 hours' notice.
The City intends to award each selected Proposer a three (3) year contract commencing July 1, 2024 through June 30, 2027, subject to renewal administratively by two additional one-year periods based upon an evaluation of the vendor's performance by City staff. For reference, the City's currently used Professional Services Agreement (Exhibit A) is included with this RFP.
In addition to indemnification and hold harmless language, the agreement should include professional errors and omissions insurance in an amount of not less than $1,000,000 per occurrence, and $2,000,000 aggregate, general liability insurance in an amount of not less than $1,000,000 per occurrence, and $2,000,000 in aggregate, auto liability insurance in an amount not less than $1,000,000 combined single limit for each accident, and workers' compensation insurance as required by State Law.
Proposals must conform with the requirements of this RFP. The City reserves the right to waive any irregularity in any Proposal or to reject any Proposal which does not comply City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 5 of 33 with this RFP. Modifications to the RFP, including, but not limited to the Scope of Services (Section III), can be only made by written addendum issued by the City. Selection of Proposer will be made solely by the City's determined criteria (Section II-4 & Section V).
I-2. CITY CONTACT
The principal contact for the City of Laguna Niguel regarding this RFP is Favian J. Bravo, Management Analyst, at [email protected].
I-3. ADDENDUM
If clarification or interpretation of this solicitation is considered necessary by the City, a written addendum shall be issued, and the information will be posted on the City's website at www.cityoflaqunaniguel.org. Any interpretation of, or correction to, this solicitation will be made only by addendum issued by the City's Administration Department.
It is the responsibility of each Proposer to periodically check the City's website to ensure that they have received and reviewed any and all addenda to this solicitation.
The City will not be responsible for any other explanations, corrections to, or interpretations of the documents, including any oral information. 1-4. INQUIRIES
Questions about this RFP may be directed in writing until 5:00 p.m. (PST) on Monday, March 18, 2024, via email to:
City Contact: Favian J. Bravo at [email protected].
From the date that this RFP is issued until a firm or entity is selected and the selection is announced, firms or public entities are not allowed to communicate outside the process set forth in this RFP with any City employee other than the contracting officer listed above regarding this RFP
The City reserves the right to reject any Proposer for violation of this provision. No questions other than written will be accepted, and no response other than written will be binding upon the City.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 6 of 33 1-5. LATE PROPOSALS
All Proposals that are not received by the RFP Due Date will not be considered and will not be returned to Proposer. This includes Proposals that are emailed. Delays due to mail and/or delivery handling, including but not limited to delays within the City's internal distribution systems, do not excuse Proposer's responsibility for submitting the Proposal to the correct location by the RFP Due Date.
1-6. CANCELLATION
The City reserves the right to cancel this RFP or the contract award, at any time before execution of the contract by both parties, if cancellation is deemed to be in the best interest of the City. In no event shall the City have any liability for the cancellation of a contract award.
1-7. PUBLIC RECORDS
Responses to this RFP become the exclusive property of the City and are subject to the California Public Records Act. Those elements in each Proposal which are trade secrets as that term is defined in California Civil Code section 3426. 1(d) or otherwise exempt by law from disclosure and which are prominently marked as "TRADE SECRET," "CONFIDENTIAL", or "PROPRIETARY" may not be subject to disclosure.
The City shall not in any way be liable or responsible for the disclosure of any such records including, without limitation, those so marked if disclosure is deemed to be required by law or by an order of the Court. Proposers who indiscriminately identify all or most of their Proposal as exempt from disclosure without justification may be deemed non-responsive.
In the event the City is required to defend an action on a Public Records Act request for any of the contents of a Proposal marked "confidential", "proprietary", or "trade secret", Proposer agrees, upon submission of its Proposal for City's consideration, to defend and indemnify the City from all costs and expenses, including attorney's fees, if any action or liability arising under the Public Records Act.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 7 of 33 I-8. DISPUTES
In case of any doubt or differences of opinion as to the items or services to be furnished hereunder, or the interpretation of the provisions of this RFP, the decision of the City shall be final and binding upon all parties.
1-9. PROTESTS
Protest of the recommendation for proposals must be made immediately, and in no event later than five (5) working days after the notice of recommendation for award.
I-10. NONDISCRIMINATION
By the act of submitting a Proposal in response to this RFP, Proposer certifies, under penalty of perjury, that Proposer has not discriminated against minorities, women, or emerging small business enterprises, or a business enterprise that is owned or controlled by or that employs a disabled veteran, in obtaining any required subcontracts.
I-11. PROPOSED LIABILITY
Proposers responding to this RFP do so solely at their expense, and the City is not responsible for any Proposer expenses associated with the RFP. By proposing, Proposers agree that doing so is at their own risk and the City shall have no liability related thereto. Finalists invited to participate in interview evaluations are responsible for scheduling and paying for their own travel arrangements. The City is not liable for any cost incurred by a Proposer in protesting any portion of the RFP documents or the City's selection decision.
I-12. CITY REQUESTS FOR CLARIFICATION, ADDITIONAL RESEARCH,
AND REVISIONS
The City reserves the right to obtain clarification of any portion of a Proposal or to obtain additional information necessary to properly evaluate a particular Proposal. Failure of a Proposer to timely respond to such a request for additional information or clarification may result in a finding that Proposer is non-responsive and consequent rejection of the Proposal.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 8 of 33 The City may obtain information from any legal source for clarification of any Proposal.
The City need not inform Proposer of any intent to perform additional research in this respect or of any information thereby received.
The City may perform, at its sole option, investigations of any Proposer. Information may include, but shall not necessarily be limited to, current litigation and contracting references. All such documents, if requested by the City, become part of the public record and may be disclosed accordingly. The City reserves the right to request revisions of any Proposal after the date and time due and before award for the purpose of obtaining best and final offers.
I-13. REJECTION OF PROPOSALS
The City reserves the right to reject any or all irregularities or omissions in Proposals submitted in response to this RFP to the extent it is determined to be in the best interest of the City to do so. Furthermore, the City reserves the right to reject any or all Proposals or portions thereof submitted in response to this RFP.
Proposals may be rejected for one or more of the following reasons, including but not limited to:
1. Failure of Proposer to adhere to one or more of the provisions established in this RFP.
2. Failure of Proposer to submit a Proposal in the format specified in this RFP.
3. Failure of Proposer to submit a Proposal within the time requirements established in this RFP.
4. Failure of Proposer to adhere to ethical and professional standards before, during, or following the Proposal process.
The City may reject any Proposal not in compliance with all prescribed public procurement procedures and requirements, and may reject for good cause any or all Proposals upon a finding by the City that it is in the public interest to do so. Rejected Proposals are considered to be non-responsive.
I-14. MODIFICATION OR WITHDRAWAL OF PROPOSAL BY PROPOSER A Proposal may not be modified, withdrawn, or canceled by Proposer following the time and date the Proposals are due. Proposals submitted early may be modified or withdrawn only by notice to the City at the Proposal submittal location prior to the time and date the City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 9 of 33 Proposals are due. Such notice shall be submitted to the City Contact, by email, sent by a duly authorized representative of the Proposer submitting the Proposal.
All such communication shall be worded so as not to reveal the contents of the original Proposal. Withdrawn Proposals may be resubmitted prior to the time and date the Proposals are due, provided that they are then fully in conformance with the RFP.
I-15. DURATION OF PROPOSAL
Proposal prices, terms, and conditions shall be firm for a period of at least ninety (90) days from the time and date Proposals are due. Proposals shall not be subject to future price escalation or changes of terms during the ninety (90) day period. 1-16. LOCAL, STATE, AND FEDERAL REQUIREMENTS
The City intends to select a Proposer in accordance with California law and the City's municipal code. Selection of a Proposer under this process is not a guarantee of a contract award, nor is the award of a contract for any portion of the services a guarantee of award of a contract for any subsequent work. All work is subject to budgetary and funding constraints of the City.
The selected Proposer shall comply with all federal, state, and local laws, regulations, executive orders, and ordinances applicable to the work under the Agreement, including, without limitation, the provisions of: (i) Title VI of the Civil Rights Act of 1964; (ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with Disabilities Act of 1990; (iv) all regulations and administrative rules established pursuant to the foregoing laws; and (v) all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations.
1-17. CONFLICT OF INTEREST
The Proposer warrants and represents that it presently has no interest and agrees that it will not acquire any interest, which would present a conflict of interest under California Government Code Sections 1090 et seq., or Sections 87100 et seq., during the performance of services under any Agreement awarded. The Proposer further covenants that it will not knowingly employ any person having such an interest in the performance of any Agreement awarded. Violation of this provision may result in any Agreement awarded being deemed void and unenforceable.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 10 of 33 SECTION I| - PROPOSAL PROCESS
II-1. RFP TIMELINE
The following is the anticipated RFP Timeline. The timeline is subject to change as required by the City. Any timeline changes will be communicated via addendum and posted to www.cityoflagunaniguel.org/bids.
Milestone Date
RFP Issued March 8, 2024
Optional Site Walk #1 March 13, 2024
Due date for RFP Questions March 18, 2024, by 5:00 p.m. PST Responses Provided to RFP Questions On or before March 22, 2024 Optional Site Walk #2 March 25, 2024
RFP Submittal ("RFP Due Date") March 29, 2024, by 2:00 p.m. PST *Interviews (Tentative) April 15-19, 2024
City Council Award of Contract (Tentative) May 21, 2024 Kick-off Meeting May 28, 2024
*Not all Proposers that submit a Proposal will be invited to an interview.
II-2. RFP QUESTIONS AND RESPONSES
Proposers interested in submitting a Proposal are asked not to contact other City staff or City Council Members in connection with this RFP prior to the City Council Award of Contract.
All questions, requests for interpretations or clarifications, either administrative or technical must be requested in writing and directed to the City Contact for this RFP. All written questions will be answered in writing and conveyed to all interested Proposers via addendum. Oral statements regarding this RFP by any persons should be considered unverified information unless confirmed in writing.
To ensure a response, questions must be submitted to the City Contact in writing by 5:00 p.m. PST on March 18, 2024.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 11 of 33 I1-3. OPTIONAL SITE WALKS
The City will be offering two optional site walks for Proposers interested in submitting a proposal for AV Production Services. Proposers shall only attend one of the two optional site walks. Attendance at both will result in disqualification.
The City will host Optional Site Walk #1 on March 13, 2024, allowing prospective Proposers to briefly inspect the City's Audio-Visual system at Laguna Niguel City Hall before the question submission deadline of March 18, 2024. Optional Site Walk #2 is scheduled for March 25, 2024, following the RFP question deadline but before the RFP submission deadline on March 29, 2024, at 2:00 p.m. PST.
Please note, the City Contact will not address any RFP-related inquiries during the two site walks. All questions regarding the RFP must be formally submitted in writing to the City Contact no later than 5:00 p.m. PST on March 18, 2024.
Proposers interested in attending an optional site walk must notify the City Contact via email at least 48 hours before the scheduled date. The City Contact will then provide the Proposer further details, including the meeting location and time. Please be advised, failure to notify the City Contact in advance of attending an optional site walk may lead to disqualification.
II-3. PROCESS FOR SUBMITTING PROPOSALS
Proposals are due on or before the RFP Due Date, March 29, 2024 by 2:00 p.m. PST.
Submitted Proposals will contain all elements described in Section IV (Proposal Requirements and Format) of this RFP. Interested Proposers will submit the following:
1. Four (4) printed copies of your Proposal in a sealed envelope or box and marked with the RFP title by the RFP Due Date; and,
2. A PDF copy of your Proposal, emailed to the City Contact or provided via cloud service (Dropbox, Google Drive, OneDrive, etc.)
Proposals shall be mailed to the address shown below:
City of Laguna Niguel
ATTN: Administration Department
30111 Crown Valley Parkway
Laguna Niguel, CA 92677
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 12 of 33 It is the responsibility of the Proposer to ensure the Proposal was received by the RFP Due Date. Hand delivered Proposals are also accepted and will be received at the front desk on the second floor of City Hall. No faxed Proposals. Late Proposals will not be accepted. No exceptions.
II-4. RFP EVALUATION PROCESS
The evaluation and selection process will be based upon consideration of a variety of factors as described below. Accordingly, the City reserves the right to waive technical errors, alter submission dates, issue subsequent requests for Proposals, etc.
Emphasis will be placed on the following factors to select the most qualified Proposer:
1. Qualifications and Experience
2. Availability and Approach
3. Client References
4. Cost
5. Interview (if necessary)
Selection by the City shall be based on demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required and shall not be awarded solely based on cost.
I1-5. INTERVIEWS
The City may elect to conduct interviews as part of the RFP evaluation process. If the City elects to conduct interviews, they will be held via video conference. The City will provide as much advance notice as possible to selected Proposers chosen to take part in the interview process.
Note: Not all Proposers that submit a Proposal will be invited to an interview. -Space Left Intentionally Blank -
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 13 of 33 II-6. AWARD OF PROFESSIONAL SERVICES AGREEMENT
The successful Proposer will be required to enter into a Professional Services Agreement with the City. For reference, the City's currently used Professional Services Agreement (Exhibit A) is included with this RFP.
In addition to indemnification and hold harmless language, the agreement should include a requirement for professional errors and omissions insurance in an amount of not less than $1,000,000 per occurrence, and $2,000,000 aggregate, general liability insurance in an amount of not less than $1,000,000 per occurrence, and $2,000,000 in aggregate, auto liability insurance in an amount not less than $1,000,000 combined single limit for each accident, and workers' compensation insurance as required by State Law.
The insurance requirements have been mandated by the City and can be modified only if extraordinary circumstances exist. Submittal of a Proposal shall be deemed acceptance of all the terms set forth in this RFP and the insurance requirements unless the Proposer includes with its Proposal, in writing, any conditions or exceptions requested by the Proposer to the terms of the RFP and/or insurance requirements. The City reserves the right to reject any Proposers) exceptions or proposed revisions to the RFP and/or insurance requirements.
Additionally, the resultant on-call agreements do not preclude the City from seeking proposals from other firms that are not on the on-call list for special video projects that the City determines require specific skills and experience.
II-7. INSURANCE & W-9 REQUIREMENTS
Upon the recommendation of contract award, Proposer will be required to submit the following documents withing ten (10) business days of City notification, unless otherwise specified in the solicitation:
1. Insurance - City requires that licensees, lessees, and vendors have an approved Certificate of Insurance (not a declaration or policy) or proof of legal self-insurance on file with the City. Within ten (10) business days of award of contract, selected Proposer must furnish the City with the Certificate of Insurance proving coverage as specified in the sample contract.
2. W-9 - Current signed form W-9 (Taxpayer Identification Number & Certification) which includes Proposer's legal business name(s).
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 14 of 33 II-8. KICK-OFF MEETING
After the Agreement is fully executed, the City will schedule a kick-off meeting with the selected Proposer for Audio Video Production Services to discuss the workplan.
SECTION III - SCOPE OF SERVICES
III-1. OVERVIEW
The City of Laguna Niguel invites highly qualified consultants ("Proposers") to to submit written Proposals ("Proposals") for the following professional services, as identified in this Request for Proposal ("RFP"):
1. Audio-Visual (AV) Production Services and On-Call Video Production Services
2. Only AV Production Services
3. Only On-Call Video Production Services
The City intends to select one (1) highly qualified vendor for AV Production Services and multiple highly qualified vendors for On-Call Video Production Services to augment the City's community engagement and outreach efforts. No priority will be given to proposers offering both AV Production Services and On-Call Video Production Services.
Qualified proposers shall have two to five years of experience working with municipalities and/or public agencies, of comparable size, in providing professional-level broadcast, video production, and/or programming services, which includes but not limited to, broadcast operations, video production, program scheduling, storyboarding and other related services. It is expected that the vendor for AV Production Services will be available in accordance with the set schedule of regular meetings and will have some flexibility to provide services when the need arises, with at least 24 hours' notice.
The City intends to award each selected Proposer a three (3) year contract commencing July 1, 2024 through June 30, 2027, subject to renewal administratively by two additional one-year periods based upon an evaluation of the vendor's performance by City staff. For reference, the City's currently used Professional Services Agreement (Exhibit A) is included with this RFP.
In addition to indemnification and hold harmless language, the agreement should include professional errors and omissions insurance in an amount of not less than $1,000,000 City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 15 of 33 per occurrence, and $2,000,000 aggregate, general liability insurance in an amount of not less than $1,000,000 per occurrence, and $2,000,000 in aggregate, auto liability insurance in an amount not less than $1,000,000 combined single limit for each accident, and workers' compensation insurance as required by State Law.
Proposals must conform with the requirements of this RFP. The City reserves the right to waive any irregularity in any Proposal or to reject any Proposal which does not comply with this RFP. Modifications to the RFP, including, but not limited to the Scope of Services (Section III), can be only made by written addendum issued by the City. Selection of Proposer will be made solely by the City's determined criteria (Section II-4 & Section V).
III-2. GENERAL CITY INFORMATION
The City of Laguna Niguel was incorporated on December 1, 1989. The City is a master- planned community encompassing 14.79 square miles in the coastal area of South Orange County, California. As of January 1, 2023, the State of California Department of Finance estimates the City's population to be 64,702.
The City is primarily a residential community supported by a strong retail and commercial base. About one-third of Laguna Niguel's geographic area permanently designated as parks and open space; this is one of the key features that define the character and form of the City. Throughout the year, the City offers a wide array of community events and programs to promote community engagement and foster a strong sense of community.
The City of Laguna Niguel is a general law City governed by a five-member City Council operating under the City Council/City Manager form of government. The City Council typically meets on the first and third Tuesday of each month at 7:00 pm (6:00 pm or prior to the Regular City Council Meeting for Closed Session) at Laguna Niguel City Hall (30111 Crown Valley Parkway). Regular City Council meetings are aired live on Cox Cable Channel 853, AT&T U-Verse Channel 99 and on the City's YouTube Channel. Rebroadcasted meetings are available for viewing on Cox Cable/AT&T U-Verse channels at 6:00 p.m. daily following each meeting.
The City of Laguna Niguel operates primarily as a "contract city" utilizing agreements with other governmental entities, private firms, and individuals to provide most municipal services to the community. Fire services are provided through the Orange County Fire Authority and police services are provided by the Orange County Sheriffs Department.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 16 of 33 III-3. SCOPE OF SERVICES
The City of Laguna Niguel priorities effectively engaging its residents in local government and offering various events to foster a strong sense of community. This RFP supports Goal #6 of the City's Strategic Plan, 'Communication and Community Outreach,' and aims to enhance the City's community engagement and outreach efforts.
The City intends to select one (1) highly qualified vendor for AV Production Services and multiple highly qualified vendors for On-Call Video Production Services. Proposers must complete Exhibit C - Selection of Professional Services to clearly indicate whether the submitted proposal is for 1) AV Production Services and On-Call Video Production Services; 2) only AV Production Services; or 3) only On-Call Video Production Services.
Audio Visual Production Services
The scope of work for AV Production Services entails providing professional-level broadcast and programming services in accordance with task orders issued in support of the City's public education and government channels (Cox Cable Channel 853, AT&T U- Verse Channel 99 and City's YouTube Channel).
The work, in general, shall include, but not limited to the following:
A. Task 1: Broadcast Operations/Programing
i. Manage all aspects of live video broadcasting, typically two (2) regularly scheduled City Council Meetings per month and occasional special meetings from the City Council Chambers, 30111 Crown Valley Parkway (approximately 8-10 hours per month) and special meetings scheduled within 24 to 72-hour notice. Regularly scheduled meeting start times begin at 7:00 pm (6:00 pm or prior to the Regular City Council Meeting for Closed Session). • Assignment of Consultant Personnel - The personnel assigned to the project (i.e. Council Meeting broadcast) must be the same personnel identified at the start of the contract. The consultant must have the City's written approval prior to making any change in project team/personnel assigned to a project.
• Prior to the Broadcast Meeting - The consultant is to arrive at a minimum 60 minutes prior to scheduled start time to provide general setup, City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 17 of 33 configuration, and testing of equipment and ensure live feed is fully operational.
• During the Broadcast Meeting - The consultant is to handle the following duties as needed: proper equipment operation, monitoring and correcting audio/visual issues with transmission, troubleshooting a variety of technical issues, creating relevant graphics, ensuring integration of related systems (computer for presentations, PA system and microphones, document display equipment, DVD player, audio recording device), and resolving audio issues.
ii. Oversee and manage broadcast stream and recording that feeds to City's Cox Cable Channel 853, AT&T U-Verse Channel 99 and City's YouTube Channel. • Start of Broadcast Meeting - The consultant is to record the meeting utilizing Cablecast.
• Immediately following Broadcast Meeting - The consultant is to record and setup the replay of the meeting, consistent with the set programming schedule.
• Regular Monitoring and Schedule - The consultant is to update the programming schedule as needed to incorporate new content seamlessly within existing programming
ili. Rate for provided services will be billed monthly.
B. Task 2: Government Access Cable Channel - Laguna Niguel TV (LNTV) i. Ensure public proceedings and events are accessible to Laguna Niguel residents by providing live coverage of City Council meetings, other selected public meetings, and events of general community interest as designated by the City Manager or his/her designee.
ii. Share public information on such City topics as emergency preparedness, water quality, public safety, City projects, and other important public information. Additionally, promote community events through the Digital Community Bulletin Board that are conducted by non-profit organizations and sponsored or supported by the City of Laguna Niguel.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 18 of 33 ili. Actively update and maintain LNTV to ensure the information shared with the public remains relevant and up-to-date.
iv. Proposer should familiarize themselves with the City Council's 'Government Access Channel Laguna Niguel TV Policy, included as Exhibit F - Government Access Channel Laguna Niguel TV to this RFP.
V. Rate for provided services will be billed monthly.
C. Task 3: On-call Broadcast Operations
Provide on-call live broadcast services for unanticipated broadcasts with less than 24 hours' notice, which may include, but is not limited to natural disasters and emergency City Council meetings. In the event the City has to cancel a live broadcast service, the City reserves the right to provide less than 24 hours' notice.
ii. Rate for provided services will be billed monthly.
D. Task 4: As-Needed Technical Advisory
i. Provide assistance when issues with the broadcast system (hardware and software) are discovered during a broadcast, assigned personnel need to assess the problem, troubleshoot, and inform City staff of the steps taken and/or current status of the issue.
ii. Rate for provided services will be billed monthly.
On-Call Video Production Services
Provide as-needed video production services, this includes developing, producing, editing, and packaging of content for online distribution via social media, City website, government access cable channel, and/or YouTube Channel. The content may cover various community events or programs in the form of, but not limited to, public service announcements, promotional videos, or community meetings. Additionally, all b-roll footage must be provided in a digital format and made available for the City to use at its discretion in the future.
Video production services include but are not limited to discovery, design, development, delivery, filming, drone work, post-production, and storyboarding. Video projects may vary in length, from brief video clips (1 to 3 minutes) to more extended formats (over 30 minutes). Below is a schedule of events for which the City has utilized professional video City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 19 of 33 production services and intends to continue doing so. Please note that the provided list is not exhaustive.
• State of the City Video (September or October)
• Annual Summer Concerts (6-8 concerts per year, including 4" of July) • Sea Country Festival (August)
• Haunted Trails (October)
• Veterans Day Ceremony (November)
• Christmas Tree Lighting (December)
• Holiday Parade (December)
• Bunny Bonanza (April)
• City Programs, such as Senior Wheels Program
Upon City Council approval, the City will work to fully execute On-Call Professional Services Agreements with the approved consultants. However, the resultant on-call agreements do not preclude the City from seeking proposals from other firms that are not on the on-call list for special projects that the City determines require specific skills and experience.
SECTION IV - PROPOSAL REQUIREMENTS AND FORMAT
IV-1. GENERAL INFORMATION
The City reserves the right to reject any and all Proposals when such rejection is in the best interest of the City or the Proposal contains major irregularities. Minor irregularities of the Proposal may be waived by the City. The City also reserves the right to cancel this RFP and/or to solicit and re-advertise for other Proposals.
The cost of preparing any responses to the RFP shall be borne by Proposers and shall not be reimbursed by the City. Proposals must be valid for a minimum of 90 days.
Proposer is responsible for preparing an effective, clear, well-organized, and concise written Proposal. Emphasis should be placed on conforming to the RFP instructions, responding to the RFP requirements, and providing a complete and clear cost proposal.
IV-2. PROPOSAL FORMAT GUIDELINES
Proposal should be typed and should contain no more than 25 typed pages using 12- point font size, including cover letter and resumes of key people, but excluding Index/Table of Contents, tables, charts, graphic exhibits, and pricing forms.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 20 of 33 If the Proposer chooses to submit a proposal for both AV Production Services and On-Call Production Services, a single submission is required. However, the proposal must clearly delineate the sections pertaining to AV Production Services and On-Call Production Services, respectively. Furthermore, the cost proposals for each service must be provided separately.
Each Proposal will adhere to the order below and content of sections. Proposal should be straightforward, concise and provide "layman" explanations of technical terms that are used. Interested Proposers are to provide the City with a thorough Proposal using the following guidelines:
Cover Letter
A cover letter, not to exceed three pages in length, providing an overview of the Proposer's general expertise, capacity, experience, and approach to performing the work described in this RFP. The cover letter must be signed by a representative authorized to sign an Agreement for Proposer. Please include the following information:
A. Provide company history demonstrating Proposer has been in business for at least two to five years and has experience working with municipalities and/or public agencies, of comparable size, in providing professional-level broadcast, video production, and/or programming services.
B. Indicate the address and telephone number of the Proposer's office located nearest to Laguna Niguel, California, and the office from which the services will be provided.
Qualifications and Experience
The information requested in this section shall include the following minimum information:
A. Key Personnel - Provide a project staffing organizational chart identifying the proposed team assigned to this project. Include assigned duties and comprehensive resumes for each identified individual. Resumes must list education, training, professional work experience, and a listing of work performed comparable to that described within this RFP. Identify the principal contact who will be assigned to provide the agreed upon professional services.
B. Staffing Capacity - All Proposers are to provide staffing capacity and list any subcontractors that will be used for this assignment and how they will be used.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 21 of 33 C. Relevant Experience - Describe Proposer's experience in preparing similar Scope of Services. Include at least five (5) work samples that the Proposer has completed that are similar to the services described in this RFP within the last 5 years. For each project, provide the following information:
Name and location of each project.
• Year completed
• Specify the service provided (AV Production Services or Video Project) • Name and contact information of each client.
Availability and Approach
The information requested in this section shall include the following minimum information:
A. Availability - Indicate the Proposer's availability to provide the Scope of Services stated in this RFP.
B. Start of Services - Indicate the earliest date the Proposer would be able to commence work for Audio Visual Production Services and/or On-Call Video Production Services.
C. Approach - Describe the Proposer's approach to accomplish the Scope of Services stated in this RFP. Also include a description of Proposer's management style and the mechanisms in place for quality assurance and continuity of services.
Cost Proposal(s)
Provide an hourly rate fee schedule applicable to the Consultant's personnel proposed to provide services as specified in this RFP in a separate sealed envelope. Also, include overtime hourly rates and pricing for any additional billing requirements, if applicable.
Rates shall remain valid for the initial three-year ordering period of the Agreement.
Thereafter, rates may be reviewed for the extension; however, any proposed rate increase shall not exceed the current Consumer Price Index (CPI).
If the Proposer chooses to submit a proposal for both AV Production Services and On-Call Production Services, a single submission is required. However, the proposal must clearly delineate the sections pertaining to AV Production Services and On-Call Production Services, respectively. Furthermore, the cost proposals for each service must be provided separately.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 22 of 33 Please note, the City will not be providing vehicles, laptops, cell phones, or filming equipment to perform any of the services, with the exception of the City's AV System (Exhibit G). The equipment needed to perform the services shall be included in the proposal. No markups will be allowed for other direct costs and sub-consultant services.
Mileage will not be compensated.
Proposals shall be valid for a minimum of 90 days following submission. The cost proposal must be inclusive of all costs charged to the City and shall be itemized to clearly provide a cost breakdown of the services that will be provided to the City. Furthermore, the cost proposal shall include an hourly rate fee schedule for any project team member that may work provide services to the City as defined in this RFP.
Client References
Provide at least three (3) recent municipal client for whom the Proposer has provided services within the last five (5) years that is comparable to the Scope of Services described within this RFP. Specify the client, location, type of work, contact information, and other relevant information to allow detailed reference checks. Proposers are responsible for notifying references that City may be contacting them and for providing any waivers or releases the reference requires prior to submitting a proposal.
Professional Services Agreement
The selected vendors) will be required to enter into a Professional Services Agreement with the City. For reference, the City's currently used Professional Services Agreement (Exhibit A) is included with this RFP.
In addition to indemnification and hold harmless language, the agreement should include a requirement for professional errors and omissions insurance in an amount of not less than $1,000,000 per occurrence, and $2,000,000 aggregate, general liability insurance in an amount of not less than $1,000,000 per occurrence, and $2,000,000 in aggregate, auto liability insurance in an amount not less than $1,000,000 combined single limit for each accident, and workers' compensation insurance as required by State Law.
The insurance requirements have been mandated by the City and can be modified only if extraordinary circumstances exist. Submittal of a Proposal shall be deemed acceptance of all the terms set forth in this RFP and the insurance requirements unless the Proposer includes with its Proposal, in writing, any conditions or exceptions requested by the Proposer to the terms of the RFP and/or insurance requirements.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 23 of 33 The City reserves the right to reject any Proposers) exceptions or proposed revisions to the RFP and/or insurance requirements.
Disclosure
Please disclose any and all past or current business and personal relationships with any current Laguna Niguel elected official, appointed official, City employee, or family member of any current Laguna Niguel elected official, appointed official, or City employee.
Any past or current business relationship may not disqualify the firm or individual from consideration.
Forms to be Submitted
Please complete and submit the following forms as part of your Proposal:
a. Certification Statement (Exhibit B)
b. Selection of Professional Services (Exhibit C)
c. Ex Parte Communications Certification (Exhibit D)
d. Disqualification Questionnaire (Exhibit E)
SECTION V - EVALUATION / SELECTION OF PROPOSAL
V-1. CLARIFICATIONS
The City reserves the right to seek written clarification of each Proposal submitted. The City also reserves the right to require other evidence of minimum qualifications, technical, managerial, financial, or other abilities prior to selection.
V-2. PROPOSAL EVALUATION AND SELECTION
The City will make a selection based on the evaluation of the written Proposals, evaluation criteria, and interviews. The City may elect to interview all Proposers or only the highest ranked Proposers).
V-3. EVALUATION CRITERIA
The evaluation and selection process will be based upon consideration of a variety of factors as described below. The City will evaluate and may interview the highest-ranked Proposers).
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 24 of 33 Emphasis will be placed on the following factors to select the most qualified Proposer (s):
1. Qualifications and Experience
. Availability and Approach
3. Client References
4. Cost
5. Interview (if necessary)
Selection by the City shall be based on demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required and shall not be awarded solely based on cost.
V-4. INITIAL PROPOSAL REVIEW
The City will initially review and score all responsive written Proposals based upon the Evaluation Criteria set forth in Section V-2. Proposals that receive the highest evaluation scores may be invited to the next stage of the evaluation process.
The City may reject any Proposal in which a Proposal's approach, qualifications, or price is not considered acceptable by the City. An unacceptable Proposal is one that would have to be substantially rewritten to make it acceptable.
V-5. INTERVIEWS, REFERENCE CHECKS, DISCUSSIONS
Following the initial review of Proposals, Proposers may be invited to participate in an interview. If conducted, interviews will be via video conference. The individual(s) from Proposer's firm or entity that will be directly responsible for carrying out the contract, if awarded, shall be present at the interview.
In addition to conducting interviews, the City may during this stage of the evaluation process also contact and evaluate the Proposer's references, contact any Proposer to clarify any response or request revised or additional information, solicit information from any available source concerning any aspect of a Proposal, and seek and review any other information deemed pertinent to the evaluation process.
Selection for award is contingent upon the successful negotiation of final contract terms.
Negotiations shall be confidential and not subject to disclosure to competing Proposers unless an agreement is reached. If contract negotiations cannot be concluded City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 25 of 33 successfully, the City may terminate negotiations and commence negotiations with the next highest scoring Proposer or withdraw the RFP.
V-6. COMPENSATION
The contract will be negotiated on a not-to-exceed cost for services.
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 26 of 33
EXHIBIT A - SAMPLE PROFESSIONAL SERVICES AGREEMENT
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City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 27 of 33
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN CITY OF LAGUNA NIGUEL AND
THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made and entered into by and between CITY OF
LAGUNA NIGUEL, a California municipal corporation ("'City") and ("Consultant"). City and Consultant may be referred to individually as "Party" or collectively as "Parties." In consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit A and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants: a) all services set forth in the Scope of Services will be performed in a competent and satisfactory manner; b) all materials used for services will be both of good quality as well as fit for the purpose intended; and, c) Consultant shall follow the highest
1.2 Agreement ("Consultant's Proposal"), dated
incorporated herein by this reference as though fully set forth herein. City circulated a Request for Proposals for the services provided for herein on
Request for Proposals ("City's RFP"), which was responded to by Consultant's Proposal, shall be incorporated herein by this reference as though fully set forth herein. The Scope of Services shall include the scope of services or work included both in Consultant's Proposal as well as in City's RFP. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal (for scope of services or work, or schedule of performance), and the terms of City's RFP (for scope of services or work, or schedule of performance), the Consultant's Proposal shall govern, unless this Agreement provides otherwise. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal, and this Agreement, the terms of this Agreement shall govern. No other terms and conditions from Consultant's Proposal, other than description of scope of services or work, as well as description of schedule of performance, shall apply to this Agreement, unless specifically agreed to by City in writing.
1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of City and any federal, State or local governmental agency having jurisdiction in effect at the time services are rendered.
City, and its elected and appointed officers, employees, agents, designated volunteers, attorneys, - 1-
successors and assigns shall not be liable at law or in equity for failure of Consultant to comply with this Section.
Licenses, Permits, Fees and Assessments. Consultant shall obtain and maintain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Consultant's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.5 Additional Services and Compensation. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes to the work by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order, consistent with both Section 9.4 as well as the Laguna Niguel Municipal Code, is first given by City to Consultant, incorporating therein any adjustment in the Contract Sum for the actual costs of the extra work and/or the time to perform this Agreement, which said adjustments are subject to the written approval of Consultant. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other consultants.
Familiarity with Work. By executing this Agreement, Consultant represents and warrants Consultant: a) has thoroughly investigated and considered services to be performed, b) has carefully considered how services should be performed, and c) fully understands the facilities, difficulties and restrictions attending performance of services under this Agreement.
1.7 Software and Computer Services. If the Scope of Services includes the provision and/or installation of any software, computer system, or other computer technology, Consultant represents and warrants that it is familiar with and/or has inspected City's current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant under this Agreement is compatible, and shall be fully functional, with such infrastructure, equipment, computer system and software of City. Consultant acknowledges that City is relying on this representation by Consultant as a material consideration in entering into this Agreement.
Prevailing Wages. If services include any "public work" or "maintenance work," as those terms are defined in California Labor Code section 1720 et seq. and California Code of Regulations, Title 8, section 16000 et seq., and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq. and 1810 et seq., and all other applicable laws. To the maximum extent permitted by law, Consultant's obligations in Section 5.3 (Indemnification) expressly apply to acts or omissions arising out of, or incidental to, the payment of prevailing wages by any person or entity (including Consultant, its subcontractors, and each of their officers, employees and agents) in connection with any services, including without limitation the payment -2-
of all consequential damages, attorneys' fees, and other related costs and expenses. All duties of Consultant pursuant to this section shall survive termination of the Agreement.
1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
Aggregate Contract Sums. Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit C and incorporated herein by this reference. The total compensation for each of the respective Services Time Periods listed in Exhibit C (including Contingency Sums), if any), including reimbursement for actual expenses, shall not exceed each Services Time Period's respective Contract Sum listed in Exhibit C, unless additional compensation is approved pursuant to Section 1.5. Specific periods of time during the contract term have specific not-to-exceed amounts as detailed in Exhibit C. The aggregate of the various Contract Sums shall not exceed Dollars ($ , which is the total compensation
available under this Agreement. However, funds available pursuant to the respective Contract Sum for each specific Services Time Period in Exhibit C may not be transferred between the Services Time Periods. The Consultant shall obtain written approval from the City for any use of any Contingency Sum provided for in Exhibit C. Compensation may include reimbursement, for actual and necessary expenditures, if both specified in the Schedule of Compensation, as well as approved by City in advance. Upon expiration of original term of the Agreement, if term is extended (pursuant to Section 3.2 or otherwise), fees and rates may only be increased both pursuant to Section 9.4 as well as subsequent to negotiation between the Parties on a reasonable increase.
The maximum of such increase shall be no greater than the CPI increase (Orange County area for the applicable period of time. City has no obligation or duty to provide any such increase. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City. Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services, Consultant shall promptly notify the City Representative of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
Invoices. Unless some other method of payment is specified in Exhibit B, Special Requirements, in any month in which Consultant wishes to receive payment, no later than the first business day of such month, Consultant shall submit to City, in a form approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of this Agreement. Except as provided in Sections 7.3, 7.4 and 7.5, City shall pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement generally within thirty (30) days, and City will use its best efforts to make payment no later than forty-five (45) days, from the submission of an invoice in an approved form. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. Each invoice -3-
is to include (unless otherwise specified by City): 1) line items for all personnel describing the work performed, the number of hours worked, and the hourly rate; 2) line items for all materials and equipment properly charged to the services; 3) line items for all other approved reimbursable expenses claimed, with supporting documentation; and 4) line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the services.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services, which shall be no later than , 20_. The term of this Agreement may be extended administratively (with total cumulative extension no greater than two years), by the City pursuant to Section 9.4 and without the need for further approval by the City Council, if the Consultant's performance is satisfactory and it is in the best interest of the City.
3.3 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit D and incorporated herein by this reference.
3.4 Force Majeure. The time periods) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, (with the express exception of delays arising from the impact of COVID-19 and its variants to the extent such impact is foreseeable or should have reasonably been foreseeable), if Consultant shall within ten (10) days of the commencement of such delay notify City in writing of the causes of the delay.
City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City's determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of this Agreement pursuant to this Section.
ARTICLE 4. COORDINATION OF WORK
4.1 Consultant Representative. The Consultant Representative is ([title, work phone number and work email]), who is
authorized to act on Consultant's behalf with respect to the work or services specified herein and to make all decisions in connection therewith. It is expressly understood that the experience, knowledge, capability and reputation of the representative was a substantial inducement for City to enter into this Agreement. Therefore, the representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the representative may not be -4-
replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City.
4.2 City Representative. The City Representative is such person as designated by the City Manager or her designee. The City Representative shall be the primary person on behalf of City responsible for the administration of the Agreement. It shall be Consultant's responsibility to assure that the City Representative is kept informed of both the progress of the performance of the services as well as any decisions which must be made by City.
4.3 Approvals from City. City approvals or actions, pursuant to the authority of this Agreement, may be made (unless otherwise specified) either by the City Manager, the Director, or by the City Representative (or by their respective delegates as provided for in writing).
4.4 Independent Contractor. Neither City, nor any of its officers, employees or agents, shall have any control over the manner or means by which Consultant, or its officers, employees, agents or subcontractors, perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of City and shall remain under only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it, or any of its officers, employees, agents or subcontractors, are officers, employees or agents of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. Consultant represents and warrants that the personnel used to provide services to City pursuant to this Agreement shall at all times be under Consultant's exclusive control and direction.
No City employee benefits shall be available to Consultant, its officers, employees, agents or subcontractors, in connection with the performance of this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, agents or subcontractors, for injury or sickness arising out of performing services hereunder. In the event that Consultant or any officer, employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees' Retirement System, to be classified as other than an independent contractor for City, then Consultant shall indemnify, defend, and hold harmless City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer contributions, and any other damages and costs assessed to City as a consequence of, or in any way attributable to, the assertion that Consultant, or any officer, employee, agent, or subcontractor Consultant used to provide services under this Agreement, is/are employees of City.
Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, without express written approval of City, Consultant shall not contract with any other entity to perform in whole or in part services required hereunder without express written approval of City, and neither this Agreement nor any interest herein may be transferred or assigned. No approved transfer shall release Consultant, or any surety or insured of Consultant, of any liability hereunder without express written consent of City. -5-
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages. Prior to commencement of any services under this Agreement, and without limiting Consultant's indemnification obligation to City, Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, for the duration of the Agreement, primary policies of insurance of the type and amounts below, issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by City, which shall cover all elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns of City. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. (a) Commercial General Liability Insurance. A policy of commercial general liability insurance, with coverage at least as broad as Insurance Services Office ("ISO") form CG 00 01, written on a per occurrence basis for bodily injury, personal injury and property damage. Defense costs must be paid in addition to limits. Coverage for an additional insured shall not be limited to its vicarious liability. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate.
(b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Consultant in the course of carrying out the work or services contemplated in this Agreement.
(c) Automobile Liability. A policy of comprehensive automobile liability insurance, at least as broad as IS form CA 00 01, written on a per occurrence basis covering bodily injury and property damage in an amount not less than $1,000,000 combined single limit for each accident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
(d) Professional Liability. Professional liability insurance appropriate to Consultant's profession. This coverage may be written on a "claims made" basis and must include coverage for contractual liability. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of Consultant's services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of City submit written evidence of this continuous coverage. Limits shall be no less than $1,000,000 per claim and no less than $1,000,000 general aggregate. -6-
Cyber Liability. Cyber liability insurance appropriate to Consultant's profession and the services hereunder, written on a per occurrence basis, with limits not less than $1,000,000 per occurrence/loss, and $2,000,000 in the aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations undertaken by Consultant pursuant to this Agreement and shall include, but not be limited to, claims involving: infringement of intellectual property; copyright; trademark; invasion of privacy violations; data breach; electronic information theft, loss, damage, destruction, alteration or misuse; release of private information; extortion; and, network security. The policy shall provide coverage for breach response costs, regulatory fines and penalties, and credit monitoring expenses, with limits sufficient to respond to these obligations.
Excess Liability and Umbrella Liability Insurance. Excess liability insurance and/or umbrella liability insurance may be used to satisfy the obligations herein. If excess liability insurance is used then the policy shall meet all the requirements herein and be at least as broad as the primary coverages set forth herein. Such policy shall: 1) include a drop down feature requiring the policy to respond if primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; 2) be payable on behalf of wording as opposed to reimbursement; 3) have concurrency of effective dates with primary policies; 4) "follow form" to the underlying primary policies; and, 5) provide insureds, under primary policies required herein, shall be insureds under the excess liability policy.
Subcontractors. In the event Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, Consultant shall either: 1) include each subcontractor as insureds under its policies of insurance required herein; or, 2) Consultant shall, upon request of City, furnish to City all documentation, required in Article 5 for Consultant, for each subcontractor. All coverages for subcontractors shall include all of the requirements herein.
5.2 General Insurance Requirements.
Proof of Insurance, Enforcement and Notice. No work or services under this Agreement shall commence until both Consultant has provided City with insurance certificates, endorsement forms and appropriate insurance binders evidencing the above insurance coverages, as well as said documentation is approved by City. City reserves the right to inspect complete, certified copies of, and endorsements to, all required insurance policies, at any time.
Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. In the event any insurance policy required under this Agreement is cancelled or amended (and the insurance policy is not replaced pursuant to subsection (b) below), or does not comply with Article 5, then: 1) City has the right but not the duty to obtain insurance required herein and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments; or, 2) City, notwithstanding any other provisions of this Agreement, may immediately terminate this Agreement. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required insurance policies. (b) Cancellation/Amendment. All of herein required policies of insurance shall provide the insurance may not be amended or cancelled by insurer or any Party hereto without providing thirty (30) calendar days prior written notice (with exception of ten (10) calendar days -7-
prior written notice for nonpayment of premium) to City. In the event any of said policies of insurance are amended or cancelled, Consultant shall, five (5) business days prior to the cancellation date, submit new evidence of insurance, or reinstatement of policy, in conformance with this Agreement to City.
(c) Additional Insureds. The commercial general liability policy provided for in Section 5.1(a) and the automobile liability policy provided for in Section 5.1 (c) both shall name City and its elected and appointed officers, employees, agents and designated volunteers ("City Parties") as additional insureds and such coverage shall contain no special limitations on the scope of protection afforded to City and City Parties. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability, and policies of insurance shall not contain any cross-liability exclusions.
Primary, Subrogation, Contribution and Coverage. All of the above policies of insurance shall be primary insurance. The insurers (with exception of professional liability insurer) for above policies, Consultant and any subcontractors are all deemed hereof to waive all rights of subrogation and contribution they may have against City or City Parties, and their respective insurers, and all insurance policies required herein shall be endorsed to waive such rights. Any insurance maintained by City or City Parties will apply in excess of, and not contribute with, Consultant's insurance. If Consultant maintains broader coverage and/or higher limits than the minimum amounts provided herein, City requires and shall be entitled to the broader coverage and/or higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City and City Parties.
None of the coverages required herein will be in compliance with this Agreement if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Requirements of specific coverage features or limits contained herein are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any Party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. (e) Limitations, Self- Insured Retention and Deductibles. Consultant agrees that requirements of Article 5 shall not be construed as limiting in any way the extent to which Consultant may be held responsible for the payment of damages to any persons or property resulting from Consultant's activities or the activities of any person or persons for which Consultant is otherwise responsible nor shall it limit Consultant's indemnification liabilities as provided in Section 5.3. All insurance policies must specify that where the primary insured does not satisfy any self-insured retention, any additional insured may satisfy the self-insured retention (without impairment of obligation of primary insured under this Agreement to satisfy any self- insured retention). Any deductibles or self-insured retentions must be declared to and approved by City. At City's option, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City and City Parties, or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, attorney's fees, defense expenses and claims.
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5.3 Indemnification.
General Obligations. Consultant agrees, to the full extent permitted by law, to immediately indemnify, defend and hold harmless City and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns (each an "Indemnitee" and collectively, "Indemnitees") against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages or injuries to persons or property, demands, expenses, losses, costs, penalties, obligations, errors, omissions or liabilities of any kind that may be asserted or claimed by any person, firm or entity arising out of, pertaining to, incident to or in connection with any alleged acts, errors or omissions of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (each an "Indemnitor" and collectively, "Indemnitors") in connection with the performance of Consultant's Services, or arising from Indemnitors' reckless or willful misconduct, or arising from Indemnitors' negligent performance of or failure to perform the work, operations or activities provided herein, or any term, provision, covenant or condition of this Agreement, with such negligence or failure to perform to be determined by the City (herein "Claims or Liabilities"), and in connection therewith: 1) Consultant will defend any action or actions filed or threatened in connection with any such Claims or Liabilities, or at option of Indemnitees will reimburse and pay for all costs and expenses, including legal costs and attorneys' fees, incurred by Indemnitees in connection therewith; and, 2) Consultant will promptly pay and satisfy any judgment, award or decree rendered against Indemnitees, and reimburse Indemnitees for the cost of any settlement paid by Indemnitees, for any such Claims or Liabilities, and will save and hold Indemnitees harmless therefrom.
(b) Further Provisions. The indemnity obligation herein shall be binding on successors, assigns and heirs of Consultant and shall survive termination of this Agreement.
Consultant shall incorporate similar indemnity agreements as provided herein with its subcontractors, and if Consultant fails to do so Consultant shall be fully responsible to indemnify City hereunder therefor. Failure of City and/or City Parties (collectively "City" for solely this Section 5.3(b))) to monitor compliance with any of the indemnification provisions herein shall not be a waiver hereof. The indemnification provisions herein do not apply to claims or liabilities occurring as a result of City's sole negligence or willful misconduct, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnification provided herein includes Claims or Liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services hereunder. Payment of invoices by City is not a condition precedent to enforcement of the indemnity obligation herein. In the event of any dispute between Consultant and City, as to whether liability arises from the sole negligence or willful misconduct of City, Consultant will be obligated to pay for City's defense until such time as a final judgment has been entered adjudicating City as solely negligent or responsible for willful misconduct.
Consultant will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney's fees, expert fees and costs of litigation. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any -9-
reimbursement or indemnification arising under Section 5.3 of this Agreement. Such offset, if any, does not satisfy any amount, greater than the offset, due to City from Consultant. (c) Professional Liability. When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law (within the limitations, as applicable, of Civil Code section 2782.8), Consultant shall indemnify, defend and hold harmless Indemnitees against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all Claims and Liabilities, consistent with all obligations provided for in this Section 5.3, to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services under this Agreement.
ARTICLE 6. RECORDS, REPORTS AND RELEASE OF INFORMATION
6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder ("books and records") as shall be necessary to perform the services required by this Agreement and enable City to evaluate the performance of such services. Any and all such books and records shall be maintained in accordance with generally accepted accounting principles (and, as applicable, maintained also in accordance with requirements of Labor Code section 1776), shall be complete and detailed, and shall be readily accessible. City shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts. Such books and records shall be maintained either for a period of no less than three (3) years following completion of the services hereunder, or for such period of time as required by applicable law, whichever period of time is longer. City shall have access to such books and records in the event any audit is required. Consultant shall fully cooperate with City in providing access to any and all Consultant records and documents if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
Reports. Consultant shall periodically submit written reports to City Representative concerning performance of services, upon request, and/or as necessary for City to be informed of both performance of services as well as any decisions which must be made by City.
6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials ("documents and materials") prepared (regardless of whether complete or incomplete) by Consultant, its officers, employees, agents and subcontractors in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of City and/or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership, use, reuse, or assignment of the documents and materials hereunder. Consultant may retain copies of such documents and materials under express condition that Consultant agrees such documents and materials are the sole property of City. All subcontractors shall provide for assignment to City of any documents and materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, with respect to any Consultant documents and materials that may qualify as -10-
"works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for City.
6.4 Confidentiality and Release of Information. All information gained or work product produced by Consultant in its performance of this Agreement shall be considered confidential, unless such information is in the public domain prior to such gain or production.
Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from City. No news releases, including photographs, public announcements, or confirmations of the same, of any part of the work, shall be made without prior written authorization from City. Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from City or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant immediately gives City notice of such court order or subpoena. It Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Consultant's conduct. As concerning, regarding or related to, in any way, this Agreement and the work performed thereunder: a) Consultant shall immediately notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party; b) City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding; and, c) Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant, however, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.
District Court, venue shall lie exclusively in the Central District of California, Southern Division, in the County of Orange, State of California.
7.2 Suspension, or Termination, Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in Section 7.4 for termination for cause. City reserves the right to terminate or suspend this Agreement, or any portion hereof, at any time, for any reason, with or without cause, upon ten (10) days' notice to Consultant, except that where termination or suspension is due to the fault of Consultant, the period of notice may be such shorter time as determined by City. Upon receipt of any notice of termination or suspension, Consultant shall immediately cease all services hereunder, unless the notice -11-
provides otherwise, or except such as specifically approved by City. Upon submittal of an invoice consistent with Section 2.2, Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination or suspension and for any services authorized by City thereafter in accordance with the Schedule of Compensation, or such as may be approved by City, except as provided in Section 7.5. In event of termination, or suspension, without cause pursuant to this Section, there is no need to provide opportunity to cure pursuant to Section 7.3.
7.3 Default of Consultant and Opportunity to Cure. In the event that Consultant is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively ten (10) days, but may be extended, or reduced, if circumstances warrant, as determined by City. During the period of time that Consultant is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices, without liability for interest. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default by conclusion of noticed timeframe, City may immediately both terminate this Agreement with notice to Consultant as well as pursue the remedy in Section 7.4, without prejudice to any other remedy to which City may be entitled at law, in equity or under this Agreement. Any failure on the part of City to give notice of Consultant's default shall not be deemed to result in a waiver of City's legal rights or any rights arising out of any provision of this Agreement.
7.4 Termination for Default of Consultant. If termination is due to the failure of Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.3, take over the work and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of set-off or partial payment of the amounts owed City therefor.
7.5 Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.6 Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this -12-
Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant City nor does it waive any rights hereunder. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.9 Attorneys' Fees. If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal, and a Party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, consultants' fees, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. Such fees and costs shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. INDIVIDUAL LIABILITY, CONFLICTS AND NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of City. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. City, in its sole discretion, shall - 13-
determine the existence of a conflict of interest and may terminate this Agreement in the event such a conflict of interest exists upon sending Consultant written notice describing the conflict.
No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects their financial interest or the financial interest of any corporation, partnership or association in which they are, directly or indirectly, interested, in violation of any State statute or regulation. Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices. Any notice or other communication either Party desires or is required to give to the other Party or any other person in regards to this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt Director at City of
Laguna Niguel, , Laguna Niguel, CA 92677, and in the case of Consultant, to the person(s) at the address designated on the execution page of this Agreement.
Either Party may change its address by notifying the other Party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties as to the Agreement.
It is understood that there are no oral agreements between the Parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all prior and contemporaneous negotiations, arrangements, agreements and understandings, if any, between the Parties, concerning this Agreement, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing, approved by City and Consultant, and consistent with the Laguna Niguel Municipal Code. -14-
Severability. Should a portion of this Agreement be declared invalid or unenforceable by a judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 No Undue Influence. Consultant declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City has or will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to remedies in Section 7.4 and any and all remedies at law or equity.
9.7 Corporate Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) entering into this Agreement does not violate any provision of any other agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF LAGUNA NIGUEL, a California
municipal corporation
Tamara S. Letourneau, City Manager
ATTEST:
Marissa J. Asistin, City Clerk
[NOTE (and delete this NOTE before this signature page is finalized): pursuant to City Purchasing Policy, if there are no substantive changes to Agreement template language, then City Attorney "approval as to form" is not required, and below signature bloc in its entirety may be removed.] APPROVED AS TO FORM:
BEST BEST & KRIEGER, LLP
Scott C. Smith, City Attorney
CONSULTANT:
, a
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairperson of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. (Cal. Corp. Code § 313)
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS,
ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO THE CONSULTANT'S BUSINESS ENTITY.
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EXHIBIT A
SCOPE OF SERVICES
I. All work product is subject to review and acceptance by City, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.
II. Consultant will perform services, described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts) I, and as specified in more detail below]. [NOTE (delete this entire NOTE when Exhibit A is finalized, and below Sections III-V formats are examples and do not have to be used):
Ill. Consultant will perform the following services:
A.
B.
IV. As part of the services, Consultant will prepare and deliver the following tangible work products to City:
A.
B.
During performance of the services, Consultant will keep City informed of the status of performance by delivering the following status reports:
A.
B.
A(1)
EXHIBIT B
SPECIAL REQUIREMENTS
(Superseding Agreement Template)
NOT APPLICABLE
[NOTE (and delete this entire NOTE when Exhibit B is finalized): All revisions to the template go in this Exhibit B. If Consultant requests revisions to template, and/or if Staff recommends revisions to template: 1) delete above term "NOT APPLICABLE"; and, 2) write the requested and/or recommended revisions below. The following are suggested formats and other formats may be used if make more sense:
(amend template language)
A. Section 5.1 (c), "Automobile Liability," shall be amended to read in its entirety (new text is identified in bold italics, deleted text in strike through) as follows:
"A policy of comprehensive automobile liability insurance, at least as broad as ISO form CA 00 01, written on a per occurrence basis covering bodily injury and property damage in an amount not less than $1,000,000 $2,000,000 combined single limit for each accident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile." (delete template language)
B. Section 5.1 (d), "Professional Liability," is deleted in its entirety. (add new section to template)
C. Section X.X, ". " is added in its entirety as follows:
B(1)
EXHIBIT C
SCHEDULE OF COMPENSATION
City will compensate Consultant for the services performed upon submission of a valid invoice, as described in Section 2.2.
II. The total compensation for the services identified in Exhibit A shall not exceed the aggregate of the Contract Sums, as described in Section 2.1 of this Agreement, and such Contract Sums are defined below for each of the Services Time Periods.
II. The total compensation for each Services Time Period is listed below. Funds available for each specific Services Time Period may not be transferred between the Services Time Periods listed below.
[NOTE (and delete this entire NOTE when Exhibit C is finalized): Below list the specific Services lime Periods that this multiyear agreement provides for consistent with Scope of Services in Exhibit ACes, 'S or Pull 073- Degener 31, 20231, enderive notes dam ans Exhibit A (e.g., then the "Contract Sum" for each Services Time Period which is sum of Specific Sum and Contingency Sum./
SERVICES TIME PERIODS
1. Time Period -
2. Specific Sum - Dollars
3. Contingency Sum - Dollars
($
4. Contract Sum -
Dollars (S
1. Time Period -
2. Specific Sum - Dollars
3. Contingency Sum-_ Dollars
4. Total Sum - Dollars
($
IV. Consultant will be compensated for services provided pursuant to this Agreement in accordance with description in Consultant's Proposal.
C(1)
EXHIBIT D
SCHEDULE OF PERFORMANCE
1. Consultant shall perform all services and deliver all work products timely in accordance with the schedule described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts) I, and as specified in more detail below]. [NOTE (delete this entire NOTE when Exhibit D is finalized, and below Section II-IV formats are examples and do not have to be used:
• If Proposal / RFP has a complete and clear description of the schedule of performance and no need to refer to specific sections or pages, then delete below Sections I-Ill and delete the above language "and as specified in more detail below."
• If need to refer to specific sections or pages of the Proposal or RFP to clarify schedule of pertormance, then: 1) below make those references and provide any other applicable details on schedule of performance; 2) keep Section I above (and remove yellow highlighting); and 3) delete Section I below.
• If Proposal / RFP does not have a complete and clear description of schedule of performance and do not want to reference Proposal / RFP at all, then: 1) below write a complete and clear description of schedule of performance (always keep below Section I if delete above Section I; and, 2) delete above Section IJ
I. Consultant shall perform all services and deliver all work products timely.
II. Consultant shall perform all services in accordance with the following schedule:
TASK DAYS TO PERFORM DEADLINE DATE
A.
B.
C.
D.
III. Consultant shall deliver the following tangible work products to City by the following dates.
A.
B.
D(1)
EXHIBIT B - CERTIFICATION STATEMENT
All Proposals must include this certification statement, signed by a duly constituted official legally authorized to bind Proposer to both its Proposal and cost schedule.
1. Proposer did not, in any way, collude, conspire or agree, directly or indirectly, with any person, firm, corporation or other Proposer in regard to the amount, terms, or conditions of this proposal.
2. Proposer additionally certifies that neither Proposer nor its principals are presently disbarred, suspended, proposed for disbarment, declared ineligible or voluntarily excluded from participation in this transaction by any federal department or agency, any California State agency, or any local government agency.
3. Proposer acknowledges that all requests for deviations, exceptions, and approved equals are enclosed herein and that only those deviations, exceptions, and approved equals included in the RFP document or permitted by formal addenda are accepted by the City.
4. Proposer did not receive unauthorized information from any City staff member or City Councilman during the Proposal period except as provided for in the Request for Proposals or formal addenda issued by the City.
5. Proposer certifies that they do not discriminate in employment of any person because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background; and that they are in compliance with all Federal, State and local laws, directives and executive orders regarding nondiscrimination in employment.
6. Proposer hereby certifies that the information contained in the proposal and all accompanying documents is true and correct.
Proposer's Signature Date
Print Name Title
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 28 of 33
EXHIBIT C - SELECTION OF PROFESSIONAL SERVICES
SELECTION OF PROFESSIONAL SERVICES
The City intends to select one (1) highly qualified vendor for AV Production Services and multiple highly qualified vendors for On-Call Video Production Services to augment the City's community engagement and outreach efforts. No priority will be given to proposers offering both AV Production Services and On-Call Video Production Services.
Please indicate the professional service for which you are submitting a proposal. Only select one of the options below.
• Audio-Visual (AV) Production Services and On-Call Video Production Services • Only AV Production Services
• Only On-Call Video Production Services
Proposer's Signature Date
Print Name Title
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 29 of 33
EXHIBIT D - EX PARTE COMMUNICATIONS CERTIFICATION
EX PARTE COMMUNICATIONS CERTIFICATION
Please indicate by signing below one of the following two statements. Only sign one statement.
Statement One
I certify that Proposer and Proposer's representatives have not had any communication with a City Councilmember concerning the RFP for Audio Visual Production services & On-Call Video Production Services at any time after March 8, 2024.
Proposer's Signature Date
Print Name Title
-OR-
Statement Two
I certify that Proposer and Proposer's representatives have communicated after March 8, 2024, with a City Councilmember concerning the RFP for Audio Visual Production Services & On-Call Video Production Services. A copy of all such communications is attached to this form for public distribution.
Proposer's Signature Date
Print Name Title
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 30 of 33
EXHIBIT E - DISQUALIFICATION QUESTIONNAIRE
DISQUALIFICATION QUESTIONNAIRE
The Consultant shall complete the following questionnaire:
Has the Proposer, any officer of the Proposer, or any employee of the Proposer who has proprietary interest in the Proposer, ever been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local government project because of a violation of law or safety regulation? Yes No
-
If the answer is yes, explain the circumstances in the following space:
City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 31 of 33 EXHIBIT F - COUNCIL POLICY: GOVERNMENT ACCESS
CHANNEL LAGUNA NIGUEL TV
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City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 32 of 33
GOVERNMENT ACCESS COUNCIL POLICY
CHANNEL LAGUNA NIGUEL TV Adopted: 11/5/2013
Last Revised: 3/1/2022
The purpose of this policy is to provide guidelines and procedures for the operation and minimum technical standards, and operating procedures.
A. Introduction
Laguna Niguel TV is a 24-hour Government Access Channel programmed and operated by the City of Laguna Niguel under the direction of the City Manager or his/her designee. Laguna Niguel TV is restricted to use by the City of Laguna Niguel and is not available for use by the general public.
Through the Cox Communications Franchise Agreement, Laguna Niguel TV is carried on the basic tier of service. A digital copy of Laguna Niguel TV is also carried on Cox Communications Digital Cable Channel 853. In addition, Laguna Niguel TV is also carried on AT&T U-Verse Channel 99 utilizing the designation "LNTV City Programming." All references to Laguna Niguel TV throughout the remainder of this document include reference to Cox Digital Cable Channel 853 and AT&T U-Verse Channel 99.
B. Objectives of Municipal Programming
1. To make public proceedings and events more accessible to Laguna Niguel residents by providing live, gavel-to-gavel coverage of City Council meetings, other selected public meetings, and events of general community interest as designated by the City Manager.
2. To share public information on City topics such as emergency preparedness, water quality, public safety, City projects, and other important public information.
3. To widen dissemination of information on City services, activities and events, and to expand community awareness of local government and its decision- making processes.
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4. To promote community events through the Digital Community Bulletin Board that are conducted by non-profit organizations and sponsored or supported by the City of Laguna Niguel.
5. To provide outside programming that is informative to Laguna Niguel residents.
C. Channel Designation
The City of Laguna Niguel's Government Access Channel shall be known as Laguna Niguel TV and will operate on Cox Communications Cable Channel 853.
A digital copy of Laguna Niguel TV will air on Cox Communications Digital Cable Channel 853. In addition, Laguna Niguel TV will operate on AT&T's U-Verse Channel 99.
D. Programming Types Defined
The following different forms of programming may be telecast on Laguna Niguel TV provided such programming meets all the requirements of this Policy Statement:
1. Live Cablecast
Live coverage will be provided, generally consisting of City Council meetings and events of general community interest as designated by the City Manager.
2. Tape Delayed Cablecast
Public meetings and events may be recorded for cablecasting at a later time.
3. City Produced Programming
Programs may be produced by City staff to illustrate the function or operations of City government. These programs could either be live or delayed cablecasts.
4. Outside Resource Programs
Programs produced and distributed by Federal, State or Local government agencies and programs about local community events produced and distributed by non-profit organizations when the event is sponsored or supported by the City. Non-profit organizations must provide a non-profit identification number and a copy of the non-profit certification. The copy will be placed on file at Laguna Niguel City Hail.
5. Digital Community Bulletin Board
The Community Digital Bulletin Board may be used by federal, state and local government agencies to display messages. Non-profit organizations may also submit messages to be displayed on the Digital Community Bulletin Board in Government Access Channel 2 of 8 COUNCIL POLICY
Laguna Niguel TV 3/1/2022
order to publicize local community events that are sponsored or supported by the City. Written bulletin board submissions must be provided to the City Manager or his/her designee at least two weeks in advance of the event or start of service.
E. Programming Policy
There will be no public access programming permitted on Laguna Niguel TV. Laguna Niguel TV is the City's cable television station. All content on Laguna Niguel TV is subject to review and approval by the City Manager or his/her designee in accordance with this Policy. The City, by allowing the broadcast of programs and the display of messages on the Digital Community Bulletin Board by other government agencies and certain nonprofit organization, is not a public forum. The City of Laguna Niguel reserves the right to refuse to broadcast any program or any information submitted for display on Laguna Niguel TV that does not meet the requirements of this Policy.
1. Public Meetings
Public meetings of the City Council are authorized for cablecast. Meetings of Laguna Niguel Commissions or Committees may be cablecast as authorized by the City Manager.
2. City Produced Information Programming
All City departments may submit programming requests for the government access channel. Any such requests are subject to review and will be accepted as budget and staffing allows. Only programs consistent with this Policy will be cablecast. City departments must verify in writing that they have obtained authorization to use any copyrighted material.
3. Pre-produced Recordings
Pre-produced recordings by federal, state or local government agencies and pre-produced recordings about local community events sponsored or supported by the City and submitted by non-profit organizations may be accepted for cablecast as programming space allows. All pre-produced recordings must comply with this Policy.
4. Digital Community Bulletin Board
The Digital Community Bulletin Board is defined as a text and graphics electronic message board used to display messages that are of public interest or publicize a local community event. The Digital Community Bulletin Board may be used by Federal, State and Local government agencies to display Government Access Channel 3 of 8 COUNCIL POLICY
Laguna Niguel TV 3/1/2022
messages. Non-profit organizations may submit messages for display on the Digital Community Bulletin Board to publicize local community events that are sponsored or supported by the City. Messages submitted shall be consistent with the intent of this Policy Statement.
The appropriateness of messages will be reviewed for consistency with this Policy Statement and messages may be edited accordingly.
Information for display on the Digital Community Bulletin Board must be submitted in writing on the approved form available on the City's website at www.cityoflagunaniquel.org or at the front reception counter of City Hall.
Messages for special events should include the following:
• Organization Name
Event
Date of Event
• Time of Event
• Location of Event
Fee
• Contact name and daytime telephone number
• Website (if applicable)
Anticipated airing of a request will be two weeks after receipt. Messages will be accepted on a first come, first served basis and aired as space allows. Messages will be removed the day after the scheduled event. The City of Laguna Niguel reserves the right to decline any request that does not fall within this Policy Statement.
User priority for the Laguna Niguel TV Digital Community Bulletin Board is established to provide the most equitable use of available space in the event that heavy demand results in space limitation. The order of priority for messages on the Digital Bulletin Board is as follows:
a. Time-dated or essential City of Laguna Niguel information as determined by the City Manager or designee. Non-essential or standing information may be removed in the event of space limitation, and will be reinstated when space permits.
b. Non-profit organizations conducting events within the City limits that are sponsored or supported by the City.
Government Access Channel 4 of 8 COUNCIL POLICY
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c. Non-profit organizations conducting events outside of the City limits that are sponsored or supported by the City.
5. Copyright Restrictions
Programs containing copyrighted materials will not be cablecast without proper copyright authorization. Organizations submitting copyrighted material for cablecast are responsible for obtaining and providing all necessary copyright clearances and permissions in writing to the City of Laguna Niguel, prior to airing. Organizations submitting programming for cablecast shall defend indemnify and hold the City, its officers and agents, harmless in any case of any alleged copyright infringement.
F. Editing Policy
1. Cablecast of City of Laguna Niguel public meetings will not be edited or subjected to editorial comment. Meeting coverage will be from gavel to gavel.
2. Programming prepared by or provided by individual City departments will be modified or edited as necessary to comply with this Policy Statement.
3. Information programmed into the Digital Community Bulletin Board may be edited to improve clarity.
4. The City of Laguna Niguel, its officers, employees and agents, shall not warrant the accuracy of any information cablecast over Laguna Niguel TV.
G. Omissions and Errors
Should human or technical error result in the cablecast of incorrect information over Laguna Niguel TV, the City will issue a correction or retraction as necessary.
The City of Laguna Niguel, its officers and agents, shall not be liable for the inaccuracy of the information.
H. Restricted Programming
Laguna Niguel TV is under the authority of the City of Laguna Niguel. The City of Laguna Niguel recognizes the programming content restrictions imposed on Laguna Niguel TV by the Federal Communications Commission, by prevailing community standards, and by applicable federal, state and local laws. Laguna Government Access Channel 5 0f8 COUNCIL POLICY
Laguna Niguel TV 3/1/2022
1. Public Access Programming
Laguna Niguel TV is a government access channel and does not accept programming submissions from the general public.
2. Political Programming and Individual Statements
Laguna Niguel TV will not be utilized for the direct or indirect promotion of any elected official or candidate.
Request for access to Laguna Niguel TV for the purpose of advocating a personal view point or policy will be denied.
Specific advertising messages on behalf of or opposing any political candidate or any direct advocacy messages, including specific promotional messages, on behalf of or opposing any ballot measure, proposition, initiative, recall or referendum shall not be permitted.
Candidates for elected office shall not be shown on Laguna Niguel TV, from the date the Registrar of Voters certifies them as a qualified candidate until after the election, except as a participant at a public meeting or at a City sponsored or supported event, such as the Mayor's State of the City address.
Laguna Niguel TV is exempt from providing equal opportunities to a candidate under section 76.205 of the Rules and Regulations of the Federal Communications Commission (FCC) for time incumbents spend on the channel when performing the routine duties of their position. This includes participation at regular and special sessions of the City Council, other public meetings and genuine news events.
3. Commercials
There will be no commercial advertising or other information that promotes the sale of any product or service offered, except for promotional announcements for City sponsored or supported events.
4. Lotteries
Advertising or other information concerning any lottery, gift enterprise or similar promotion is prohibited.
5. Defamatory Material
Any material that includes or constitutes libel, slander, invasion of privacy, violations or infringements of trademarks or copyrights, obscene, or salacious material shall not be permitted.
Government Access Channel 6 of 8 COUNCIL POLICY
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6. Indecent of Obscene Content
There will be no presentation of programming content that is indecent, obscene or illegal.
7. Promotion of the Sale of Alcohol, Tobacco or Drugs
Programs that promate the sale or use of alcohol, tobacco, or drugs wilt obe
8. Legal Violations
Any material which violates applicable federal, state or local laws will not be permitted.
I. Use of City Programming and Equipment
All programming produced by the City, its officers and agents, will become property of the City. Programs produced by contract agents of the City will be the property of the City and will not be sold or commercially distributed without the written permission of the City.
Use of City-owned equipment and related production facilities will be restricted to City use and operation by City employees, officers or approved agents of the City.
Loaning of equipment for personal use will not be permitted or authorized.
J. Programming Acquisition and Exchange
Liaison and exchange with other local governments involved in programming and cablecasting will be established and maintained. Cooperative arrangements and agreements with local educational programmers, broadcasters, cable companies and other production groups may be established for efficient operations and communications in the community.
K. Retention of Recorded Events and Programs
The City Clerk's office will keep cablecast master videotapes of City Council meetings for a minimum of two (2) years. The meeting tapes are not the official record of the meeting. Videotapes and DVD's may be recycled after being maintained for the minimum amount of time.
Programming produced and cablecast will be kept as long as deemed necessary by the City. Raw, stock footage of events will be maintained solely at the discretion of the City.
Programming accepted for cablecast from other sources may be retained for repeat cablecasting at the discretion of the City unless other arrangements are Government Access Channel 7 of 8 COUNCIL POLICY
Laguna Niguel TV 3/1/2022
made in writing. Upon request, videotapes will be returned to the owner/producer after the final cablecast. Unreturned tapes may be recycled for other programming.
L. Duplication
Duplication of City produced meetings can be purchased from the City Clerk.
Other City produced tapes may be made available for purchase.
M. Use of Municipal Channel During Emergencies
Government use of Laguna Niguel TV during emergencies and disasters declared by the City Manager of the City of Laguna Niguel, or his/her designee, has absolute priority over other programming. During such emergencies or disasters, Laguna Niguel TV shall be permitted to accept live, taped, character- generated and audio information from other governmental or non-governmental entities when such announcements are deemed by the City or other appropriate governmental entity to provide important public information pertaining to the emergency, disaster or other scenario that requires protection of the health, safety and welfare of the public.
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EXHIBIT G - AUDIO-VISUAL SYSTEM AT COUNCIL CHAMBERS
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City of Laguna Niguel: RFP - AV Production Services & On-Call Video Production Services Page 33 of 33
CONSTRUCTION PLANS FOR THE IMPROVEMENT OF
CITY HALL AUDIO-VISUAL UPGRADE PROJECT
CASH CONTRACT NO. 22-19
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BEMON CIVIL CHOINEER CANO SERVICES MARAORR CITY HALL AUDIO-VISUAL UPGRADE PROJECT 1 oF
CITY OF LAGUNA NIGUEL 44
Isod 3003 PUBLIC WORKS DEPARTMENT
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A103 CHAMBER MICROPHONE 3 V104 MASTER CONTROL
A104 PERSONAL AUDIO 1
A105 - --------
A106 VIDEO HD
A107 CHAMBER PRES AUDIO HD101 CHAMBER AV SYSTEM
A108 COMM ROOM A &B HD102 COMM ROOM AV SYSTEM
A109 PRODUCTION AUDIO
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N101 [CHAMBER-CONTROL ROOM AV NET
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ANALOG AUDIO AA 100 ANALOG AUDIO
100 GREY 2412
ANALOG AUDIO CONTROL AC ANALOG AUDIO
ANALOG VIDEO 100 BLACK 9451
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DIGITAL VIDEO DV 100
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ATTACHMENT B
Standard On-Call Professional Services Agreement
AGREEMENT FOR ON-CALL PROFESSIONAL SERVICES
BETWEEN CITY OF LAGUNA NIGUEL AND
THIS AGREEMENT FOR ON-CALL PROFESSIONAL SERVICES ("Agreement") is made and entered into by and between CITY OF LAGUNA NIGUEL, a California municipal corporation ("City" and
"Consultant"). City and Consultant may be referred to
individually as "Party" or collectively as "Parties."
RECITALS
The City desires to contract with selected professional consultants to provide on- call professional services to support the City of Laguna Niguel.
The City circulated a Request for Proposals for on-call professional services on March 8, 2024 for video production services.
Consultant submitted a proposal to City to provide the on-call professional services dated March 29, 2024.
City Staff has reviewed all the proposals and after considering the demonstrated competence of Consultant, the professional qualifications of Consultant, and the fairness and reasonableness of Consultant's proposed cost, staff has determined that an agreement to provide the required services on an on-call basis should be awarded to Consultant.
The City and Consultant each desire to enter into an agreement for the above- described professional services to be provided to City by Consultant on an on-call basis.
AGREEMENT
In consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of On-Call Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide, on an on-call basis, those services specified in the "Scope of On-Call Services" attached hereto as Exhibit A and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to City entering into this Agreement, Consultant represents and warrants: a) all services set forth in the Scope of On-Call Services will be performed in a competent and satisfactory manner; b) all materials used for services will be both of good quality as well as fit for the purpose intended; and, c) Consultant shall follow the highest professional standards and practices in performing the services required hereunder. Services to be actually performed by Consultant for City shall be established on a project-by-project basis through a separate written amendment to this Agreement 01405 0006/843133.1 -1-
(each such amendment may be referred to herein as a "Specific Services Amendment"). Upon request by City, Consultant shall provide a detailed project proposal, with pricing no greater than the fees and rates provided for in Exhibit C to this Agreement. Consultant shall not commence work for any given project until both: a) execution by Parties of a written Specific Services Amendment to this Agreement specifying, for the given project, the services to be provided, compensation for those services, and a performance schedule for those services; and, b) receipt from City of a written notice to proceed issued pursuant to said executed Specific Services Amendment.
1.2 Consultant's Proposal and City's RFP. Consultant's proposal for this Agreement referenced in the above recitals ("Consultant's Proposal") shall be incorporated herein by this reference as though fully set forth herein. City's Request for Proposals referenced in the above recitals ("City's RFP") shall be incorporated herein by this reference as though fully set forth herein. The Scope of On-Call Services specified in Exhibit A shall include the scope of services or work included both in Consultant's Proposal as well as in City's RFP. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal (for scope of services or work, or schedule of performance), and the terms of City's RFP (for scope of services or work, or schedule of performance), the Consultant's Proposal shall govern, unless this Agreement provides otherwise. In the event of any inconsistency or any conflict between the terms of Consultant's Proposal, and this Agreement or any amendment hereto, the terms of this Agreement or any amendment hereto, respectively, shall govern. No other terms and conditions from Consultant's Proposal, other than description of scope of services or work, as well as description of schedule of performance, shall apply to this Agreement, unless specifically agreed to by City in writing.
1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of City and any federal, State or local governmental agency having jurisdiction in effect at the time services are rendered.
City, and its elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns shall not be liable at law or in equity for failure of Consultant to comply with this Section.
1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain and maintain imposed by law and arise from or are necessary for Consultant's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder.
1.5 Additional Services and Compensation. Consultant hereby acknowledges that it accepts the risk that the services to be provided on an on-call basis pursuant to the Scope of On- Call Services, in consideration for the fees and rates provided for in the Schedule of On-Call Compensation referenced in Section 2.1 below, may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor.
City may in its sole and absolute discretion have similar work done by other consultants. -2-
1.6 Familiarity with Work. By executing this Agreement, Consultant represents and warrants Consultant: a) has thoroughly investigated and considered services to be performed, b) has carefully considered how services should be performed, and c) fully understands the facilities, difficulties and restrictions attending performance of services under this Agreement.
1.7 Software and Computer Services. If the Scope of On-Call Services includes the provision and/or installation of any software, computer system, or other computer technology, Consultant represents and warrants that it is familiar with and/or has inspected City's current infrastructure, equipment, computer system and software and that the software, computer system, or other computer technology provided and/or installed by Consultant under this Agreement is compatible, and shall be fully functional, with such infrastructure, equipment, computer system and software of City. Consultant acknowledges that City is relying on this representation by Consultant as a material consideration in entering into this Agreement.
1.8 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit B and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit B and any other provisions of this Agreement, the provisions of Exhibit B shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
2.1 Compensation for Services. Compensation for each project performed hereunder shall be determined by a Specific Services Amendment specifying a not-to-exceed contract sum for the specific project. Fees and rates to be charged by Consultant for services provided for in all Specific Services Amendments are specified in the "Schedule of On-Call Compensation," attached hereto as Exhibit C and incorporated herein by this reference, and such fees and rates are not subject to increase during the initial term of the Agreement. After the initial term of the Agreement, fees and rates may only be increased both pursuant to Section 9.4 as well as subsequent to negotiation between the Parties on a reasonable increase. The maximum of such increase shall be no greater than the CPI increase (Orange County area for the applicable period of time. City has no obligation or duty to provide any such increase. Compensation may include reimbursement, for actual and necessary expenditures, if both specified in either the Schedule of On-Call Compensation or the applicable Specific Services Amendment, as well as approved by City in advance. The not-to-exceed contract sum specified in any Specific Services Amendment shall include the attendance of Consultant at all project meetings reasonably deemed necessary by City.
Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services, Consultant shall promptly notify the City Representative of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto.
2.2 Invoices. Unless some other method of payment is specified in Exhibit B, Special Requirements, in any month in which Consultant wishes to receive payment, no later than the first business day of such month, Consultant shall submit to City, in a form approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of this Agreement. Except as provided in Sections 7.3, 7.4 and 7.5, City shall pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement generally within thirty (30) days, and City will use its best efforts to make payment no later than forty-five (45) -3-
days, from the submission of an invoice in an approved form. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. Each invoice is to include (unless otherwise specified by City): 1) line items for all personnel describing the work performed, the number of hours worked, and the hourly rate; 2) line items for all materials and equipment properly charged to the services; 3) line items for all other approved reimbursable expenses claimed, with supporting documentation; and 4) line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the services.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
3.2 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until June 30, 2027. The term of this Agreement may be extended administratively (with total cumulative extension no greater than two years), by the City pursuant to Section 9.4 and without the need for further approval by the City Council, if the Consultant's performance is satisfactory and it is in the best interest of the City.
3.3 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in both the "Schedule of Performance" attached hereto as Exhibit D, and incorporated herein by this reference, as well as the Specific Services Amendment.
3.4 Force Majeure. The time period(s) specified in the Schedule of Performance and the Specific Services Amendment for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, (with the express exception of delays arising from the impact of COVID- 19 and its variants to the extent such impact is foreseeable or should have reasonably been foreseeable), if Consultant shall within ten (10) days of the commencement of such delay notify City in writing of the causes of the delay. City shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of City such delay is justified. City's determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of this Agreement pursuant to this Section.
ARTICLE 4. COORDINATION OF WORK
4.1 Consultant Representative. The Consultant Representative is authorized to act on Consultant's behalf with respect in the work or services specified her in ani to make all decisions in connection therewith. It is expressly understood that the experience, knowledge, capability and reputation of the representative was a substantial inducement for City -4-
to enter into this Agreement. Therefore, the representative shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the representative may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City.
4.2 City Representative. The City Representative is such person as designated by the City Manager or her designee. The City Representative shall be the primary person on behalf of City responsible for the administration of the Agreement. It shall be Consultant's responsibility to assure that the City Representative is kept informed of both the progress of the performance of the services as well as any decisions which must be made by City.
4.3 Approvals from City. City approvals or actions, pursuant to the authority of this Agreement, may be made (unless otherwise specified) either by the City Manager, the Assistant City Manager, or by the City Representative (or by their respective delegates as provided for in writing).
4.4 Independent Contractor. Neither City, nor any of its officers, employees or agents, shall have any control over the manner or means by which Consultant, or its officers, employees, agents or subcontractors, perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of City and shall remain under only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it, or any of its officers, employees, agents or subcontractors, are officers, employees or agents of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. Consultant represents and warrants that the personnel used to provide services to City pursuant to this Agreement shall at all times be under Consultant's exclusive control and direction.
No City employee benefits shall be available to Consultant, its officers, employees, agents or subcontractors, in connection with the performance of this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, agents or subcontractors, for injury or sickness arising out of performing services hereunder. In the event that Consultant or any officer, employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a federal or state agency, a court of competent jurisdiction, or the California Public Employees' Retirement System, to be classified as other than an independent contractor for City, then Consultant shall indemnify, defend, and hold harmless City for the payment of any and all assessed fines, penalties, judgments, employee and/or employer contributions, and any other damages and costs assessed to City as a consequence of, or in any way attributable to, the assertion that Consultant, or any officer, employee, agent, or subcontractor Consultant used to provide services under this Agreement, is/are employees of City.
Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for City to enter into this Agreement. Therefore, without express written approval of City, Consultant shall not contract with any other entity to perform in whole or in part services required hereunder without express written approval of City, and neither this Agreement nor any interest herein may -5-
be transferred or assigned. No approved transfer shall release Consultant, or any surety or insured of Consultant, of any liability hereunder without express written consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
Insurance Coverages. Prior to commencement of any services under this Agreement, and without limiting Consultant's indemnification obligation to City, Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, for the duration of the Agreement, primary policies of insurance of the type and amounts below, issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by City, which shall cover all elected and appointed officers, employees, agents, designated volunteers, attorneys, successors and assigns of City. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. (a) Commercial General Liability Insurance. A policy of commercial general liability insurance, with coverage at least as broad as Insurance Services Office ("ISO") form CG 00 01, written on a per occurrence basis for bodily injury, personal injury and property damage. Defense costs must be paid in addition to limits. Coverage for an additional insured shall not be limited to its vicarious liability. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate.
(b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Consultant in the course of carrying out the work or services contemplated in this Agreement.
Automobile Liability. A policy of comprehensive automobile liability insurance, at least as broad as ISO form CA 00 01, written on a per occurrence basis covering bodily injury and property damage in an amount not less than $1,000,000 combined single limit for each accident. Said policy shall include coverage for owned, non-owned, leased, hired cars and any automobile.
(d) Professional Liability. Professional liability insurance appropriate to Consultant's profession. This coverage may be written on a "claims made" basis and must include coverage for contractual liability. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of Consultant's services or the termination of this -6-
Agreement. During this additional 5-year period, Consultant shall annually and upon request of City submit written evidence of this continuous coverage. Limits shall be no less than $1,000,000 per claim and no less than $1,000,000 general aggregate. (e) Excess Liability and Umbrella Liability Insurance. Excess liability insurance and/or umbrella liability insurance may be used to satisfy the obligations herein. If excess liability insurance is used then the policy shall meet all the requirements herein and be at least as broad as the primary coverages set forth herein. Such policy shall: 1) include a drop down feature requiring the policy to respond if primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; 2) be payable-on-behalf-of as opposed to reimbursement; 3) have concurrency of effective dates with primary policies; 4) "follow form" to the underlying primary policies; and, 5) provide insureds, under primary policies required herein, shall be insureds under the excess liability policy. (f) Subcontractors. In the event Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, Consultant shall either: 1) include each subcontractor as insureds under its policies of insurance required herein; or, 2) Consultant shall, upon request of City, furnish to City all documentation, required in Article 5 for Consultant, for each subcontractor. All coverages for subcontractors shall include all of the requirements herein.
5.2 General Insurance Requirements.
(a) Proof of Insurance, Enforcement and Notice. No work or services under this Agreement shall commence until both Consultant has provided City with insurance certificates, endorsement forms and appropriate insurance binders evidencing the above insurance coverages, as well as said documentation is approved by City. City reserves the right to inspect complete, certified copies of, and endorsements to, all required insurance policies, at any time.
Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. In the event any insurance policy required under this Agreement is cancelled or amended (and the insurance policy is not replaced pursuant to subsection (b) below), or does not comply with Article 5, then: 1) City has the right but not the duty to obtain insurance required herein and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments; or, 2) City, notwithstanding any other provisions of this Agreement, may immediately terminate this Agreement. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required insurance policies. (b) Cancellation/Amendment. All of herein required policies of insurance shall provide the insurance may not be amended or cancelled by insurer or any Party hereto without providing thirty (30) calendar days prior written notice (with exception of ten (10) calendar days prior written notice for nonpayment of premium to City. In the event any of said policies of insurance are amended or cancelled, Consultant shall, five (5) business days prior to the cancellation date, submit new evidence of insurance, or reinstatement of policy, in conformance with this Agreement to City.
(c) Additional Insureds. The commercial general liability policy provided for in Section 5.1 (a) and the automobile liability policy provided for in Section 5.1(c) both shall name -7-
City and its elected and appointed officers, employees, agents and designated volunteers ("City Parties") as additional insureds and such coverage shall contain no special limitations on the scope of protection afforded to City and City Parties. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability, and policies of insurance shall not contain any cross-liability exclusions.
Primary, Subrogation, Contribution and Coverage. All of the above policies of insurance shall be primary insurance. The insurers (with exception of professional liability insurer) for above policies, Consultant and any subcontractors are all deemed hereof to waive all rights of subrogation and contribution they may have against City or City Parties, and their respective insurers, and all insurance policies required herein shall be endorsed to waive such rights. Any insurance maintained by City or City Parties will apply in excess of, and not contribute with, Consultant's insurance. If Consultant maintains broader coverage and/or higher limits than the minimum amounts provided herein, City requires and shall be entitled to the broader coverage and/or higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City and City Parties.
None of the coverages required herein will be in compliance with this Agreement if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Requirements of specific coverage features or limits contained herein are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any Party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
Limitations, Self- Insured Retention and Deductibles. Consultant agrees that requirements of Article 5 shall not be construed as limiting in any way the extent to which Consultant may be held responsible for the payment of damages to any persons or property resulting from Consultant's activities or the activities of any person or persons for which Consultant is otherwise responsible nor shall it limit Consultant's indemnification liabilities as provided in Section 5.3. All insurance policies must specify that where the primary insured does not satisfy any self-insured retention, any additional insured may satisfy the self-insured retention (without impairment of obligation of primary insured under this Agreement to satisfy any self- insured retention). Any deductibles or self-insured retentions must be declared to and approved by City. At City's option, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City and City Parties, or Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, attorney's fees, defense expenses and claims.
5.3 Indemnification.
General Obligations. Consultant agrees, to the full extent permitted by law, to indemnify, defend and hold harmless City and its elected and appointed officers. employees, agents, designated volunteers, attorneys, successors and assigns (each an "Indemnitee" and collectively, "Indemnitees") against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, -8-
penalties, obligations, errors, omissions or liabilities (herein "Claims or Liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (each an "Indemnitor" and collectively, "Indemnitors"), or arising from Indemnitors' reckless or willful misconduct, or arising from Indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith: 1) Consultant will defend any action or actions filed or threatened in connection with any such Claims or Liabilities, or at option of Indemnitee(s) will reimburse and pay for all costs and expenses, including legal costs and attorneys' fees, incurred by Indemnitee(s) in connection therewith; and, 2) Consultant will promptly pay any judgment rendered against Indemnitee(s) for any such Claims or Liabilities, and will save and hold Indemnitee(s) harmless therefrom.
Further Provisions. The indemnity obligation herein shall be binding on successors, assigns and heirs of Consultant and shall survive termination of this Agreement.
Consultant shall incorporate similar indemnity agreements as provided herein with its subcontractors, and if Consultant fails to do so Consultant shall be fully responsible to indemnify City hereunder therefor. Failure of City and/or City Parties (collectively "City" for solely this Section 5.3(b))) to monitor compliance with any of the indemnification provisions herein shall not be a waiver hereof. The indemnification provisions herein do not apply to claims or liabilities occurring as a result of City's sole negligence or willful misconduct, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnification provided herein includes Claims or Liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services hereunder. Payment of invoices by City is not a condition precedent to enforcement of the indemnity obligation herein. In the event of any dispute between Consultant and City, as to whether liability arises from the sole negligence or willful misconduct of City, Consultant will be obligated to pay for City's defense until such time as a final judgment has been entered adjudicating City as solely negligent or responsible for willful misconduct.
Consultant will not be entitled in the absence of such a determination to any reimbursement of defense costs including but not limited to attorney's fees, expert fees and costs of litigation. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under Section 5.3 of this Agreement. Such offset, if any, does not satisfy any amount, greater than the offset, due to City from Consultant. (c) Professional Liability. When the law establishes a professional standard of care for Consultant's services, to the fullest extent permitted by law (within the limitations, as applicable, of Civil Code section 2782.8), Consultant shall indemnify, defend and hold harmless Indemnitees against, and will hold and save them and each of them harmless from, whether actual or threatened, any and all Claims and Liabilities, consistent with all obligations provided for in this Section 5.3, to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission, or reckless or willful misconduct of Indemnitors in the performance of professional services under this Agreement.
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ARTICLE 6. RECORDS, REPORTS AND RELEASE OF INFORMATION
6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (books and records") as shall be necessary to perform the services required by this Agreement and enable City to evaluate the performance of such services. Any and all such books and records shall be maintained in accordance with generally accepted accounting principles (and, as applicable, maintained also in accordance with requirements of Labor Code section 1776), shall be complete and detailed, and shall be readily accessible. City shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts. Such books and records shall be maintained either for a period of no less than three (3) years following completion of the services hereunder, or for such period of time as required by applicable law, whichever period of time is longer. City shall have access to such books and records in the event any audit is required. Consultant shall fully cooperate with City in providing access to any and all Consultant records and documents if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act.
6.2 Reports. Consultant shall periodically submit written reports to City Representative concerning performance of services, upon request, and/or as necessary for City to be informed of both performance of services as well as any decisions which must be made by City.
Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials ("documents and materials") prepared (regardless of whether complete or incomplete) by Consultant, its officers, employees, agents and subcontractors in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of City and/or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership, use, reuse, or assignment of the documents and materials hereunder. Consultant may retain copies of such documents and materials under express condition that Consultant agrees such documents and materials are the sole property of City. All subcontractors shall provide for assignment to City of any documents and materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, with respect to any Consultant documents and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for City.
6.4 Confidentiality and Release of Information. All information gained or work product produced by Consultant in its performance of this Agreement shall be considered confidential, unless such information is in the public domain. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from City. No news releases, including photographs, public announcements, or confirmations of the same, of any part of the work, shall be made without prior written authorization from City. Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from City or unless requested by the City Attorney, voluntarily -10-
provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement.
Response to a subpoena or court order shall not be considered "voluntary" provided Consultant immediately gives City notice of such court order or subpoena. If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Consultant's conduct. As concerning, regarding or related to, in any way, this Agreement and the work performed thereunder: a) Consultant shall immediately notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party; b) City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding; and, c) Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant, however, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S.
District Court, venue shall lie exclusively in the Central District of California, Southern Division, in the County of Orange, State of California.
7.2 Suspension, or Termination, Prior to Expiration of Term. This Section shall govern any termination of this Agreement except as specifically provided in Section 7.4 for termination for cause. City reserves the right to terminate or suspend this Agreement, or any portion hereof, at any time, for any reason, with or without cause, upon ten (10) days' notice to Consultant, except that where termination or suspension is due to the fault of Consultant, the period of notice may be such shorter time as determined by City. Upon receipt of any notice of termination or suspension, Consultant shall immediately cease all services hereunder, unless the notice provides otherwise, or except such as specifically approved by City. Upon submittal of an invoice consistent with Section 2.2, Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination or suspension and for any services authorized by City thereafter in accordance with the Schedule of On-Call Compensation and/or a relevant Specific Services Amendment, or such as may be approved by City, except as provided in Section
7.5. In event of termination, or suspension, without cause pursuant to this Section, there is no need to provide opportunity to cure pursuant to Section 7.3.
7.3 Default of Consultant and Opportunity to Cure. In the event that Consultant is in default under the terms of this Agreement (including without limitation the terms of any Specific Services Amendment), City shall not have any obligation or duty to continue compensating -11-
Consultant for any work performed after the date of default. Instead, City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively ten (10) days, but may be extended, or reduced, if circumstances warrant, as determined by City. During the period of time that Consultant is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices, without liability for interest. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default by conclusion of noticed timeframe, City may immediately both terminate this Agreement and/or Specific Services Amendments) with notice to Consultant, as well as pursue the remedy in Section 7.4, without prejudice to any other remedy to which City may be entitled at law, in equity or under this Agreement. Any failure on the part of City to give notice of Consultant's default shall not be deemed to result in a waiver of City's legal rights or any rights arising out of any provision of this Agreement.
Consultant to full is distons unde or Agulan, ty inay, on is due to the alture of provisions of Section 7.3, take over the work and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of set-off or partial payment of the amounts owed City therefor.
Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.6 Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement of this Agreement imposes no additional obligations on -12-
City nor does it waive any rights hereunder. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant.
7.7 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.8 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code sections 905 et seg. and 910 et seq.., in order to pursue a legal action under this Agreement.
7.9 Attorneys' Fees. If either Party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the other reasonable costs for investigating such action, consultants' fees, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. Such fees and costs shall be enforceable whether or not such action is prosecuted to judgment.
ARTICLE 8. INDIVIDUAL LIABILITY, CONFLICTS AND NON-DISCRIMINATION Non-liability of City Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of City. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. City, in its sole discretion, shall determine the existence of a conflict of interest and may terminate this Agreement in the event such a conflict of interest exists upon sending Consultant written notice describing the conflict.
No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects their financial interest or the financial interest of any corporation, partnership or association in which they are, directly or indirectly, interested, in violation of any State statute or regulation. Consultant warrants that it has not paid or given and will not pay or - 13-
give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
ARTICLE 9. MISCELLANEOUS PROVISIONS
Notices. Any notice or other communication either Party desires or is required to give to the other Party or any other person in regards to this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, in the case of City addressed to Public Works Director at City of Laguna Niguel, 30111 Crown Valley Parkway, Laguna Niguel, CA 92677, and in the case of Consultant, to the person(s) at the address designated on the execution page of this Agreement. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same instrument.
9.4 entire, complete and exclusive expression of the understanding of the Parties as to the Agreement.
It is understood that there are no oral agreements between the Parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all prior and contemporaneous negotiations, arrangements, agreements and understandings, if any, between the Parties, concerning this Agreement, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing, approved by City and Consultant, and consistent with the Laguna Niguel Municipal Code.
9.5 Severability. Should a portion of this Agreement be declared invalid or unenforceable by a judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties unless the invalid -14-
provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 No Undue Influence. Consultant declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City has or will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling City to remedies in Section 7.4 and any and all remedies at law or equity.
Corporate Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly assigns of the Parties.
[SIGNATURES ON FOLLOWING PAGEJ
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
CITY:
CITY OF LAGUNA NIGUEL, a California
municipal corporation
Tamara S. Letourneau, City Manager
ATTEST:
Marissa J. Asistin, City Clerk
APPROVED AS TO FORM BY THE
CITY ATTORNEY FOR THE
CITY OF LAGUNA NIGUEL,
CALIFORNIA:
Scott C. Smith, City Attorney
CONSULTANT:
a
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairperson of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. (Cal. Corp. Code $ 313.)
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS,
ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
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EXHIBIT A
SCOPE OF ON-CALL SERVICES
I. All work product is subject to review and acceptance by City, and must be revised by Consultant without additional charge to City until found satisfactory and accepted by City.
II. Consultant is available to perform services, described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts), on an on-call basis.
A(1)
EXHIBIT B
SPECIAL REQUIREMENTS
(Superseding Agreement Template)
NOT APPLICABLE
B(1)
EXHIBIT C
SCHEDULE OF ON-CALL COMPENSATION
1. City will compensate Consultant for the on-call services performed upon submission of a valid invoice, as described in Section 2.2.
II. Consultant will be compensated for services provided under this Agreement in accordance with description in Consultant's Proposal. Fees and rates shall be no greater than the fees and rates specified in Consultant's Proposal as accepted by City.
C(1)
EXHIBIT D
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all on-call services and deliver all related work products timely in accordance with the schedule described in Consultant's Proposal and City's RFP (refer to Section 1.2 for conflicts), and as applicable in accordance with the schedule described in a Specific Services Amendment.
D(1)