CITY OF MANTECA
REQUEST FOR PROPOSAL
NO. 2022-05-05MFA
Municipal Financial Advisory Services
PROPOSALS DUE
Thursday, May 5, 2022
AT OR BEFORE 2:00 P.M. LOCAL TIME
Issued on April 6, 2022
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1 SECTION 1
INTENT OF THE REQUEST FOR PROPOSAL
1.1 BACKGROUND INFORMATION
The City of Manteca (“City”), on behalf of the Finance Department, is soliciting proposals to provide Municipal Financial Advisory (MFA) services.
Proposers providing a proposal in response to this Request for Proposal (“RFP”) must address each and every item in the Description of Services to be Performed, as set forth below in Section 2. In addition, proposals must be in the format set forth in Section 3.2 of this RFP. Failure to include all elements in Section 2 or submit a proposal in the required format may be grounds for rejection of the proposal.
In the event Proposers wish to take an exception to any of the requirements set forth in Section 2 or terms of the proposed contract, as attached hereto as Exhibit E, those exceptions must be clearly stated in the proposal. Failure to include any item in the specifications without taking exception will result in a waiver of the Proposer’s ability to negotiate a contract term, attempt to request additional compensation for elements in Section 2 that were not included in the pricing set forth in the proposal, and may be grounds for rejection.
The City reserves the right to reject any and all proposals and/or to waive any informality or informalities in the accepted bid. The City further reserves the right to reject any and all bids with or without cause and re-issue this RFP if deemed to be in the City’s best interests.
1.2 LOCATION WHERE SERVICES ARE TO BE PERFORMED
The services are to be performed within the United States of America, preferably in the State of California.
1.3 PRICE
Proposers must include any and all information about pricing in their proposals.
Although the City will base its selection upon a consideration of all factors, pricing information is required in order for the City to ensure it is receiving the requested services or work at a fair and reasonable price. Failure to include pricing information in a proposal may result in a rejection of the proposal as non-responsive.
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2 1.4 PROPOSED TERM
The City anticipates a three-year agreement between the City and the successful Proposer. Service shall begin on the day this contract is signed by all parties.
1.5 PROPOSERS’ CONFERENCE
There will be no proposers’ conference for this RFP.
SECTION 2
DESCRIPTION OF SERVICES TO BE PROVIDED
2.1 SCOPE OF SERVICES
In order to assist the City, the firm selected as MFA will be required to have the capabilities to perform the following services including but not limited to:
• Advise and assist the City in its overall debt management and provide consistent, ongoing, and value-added advisory services.
• Serve as the City’s bond market expert, including tax-exempt and taxable markets, fixed-rate and variable-rate markets, and provide on-going analysis of current and upcoming trends and events in these and related areas. • Review the overall financial status of the City and provide advice and recommendation related to the issuance of bonds and project-specific financing programs to maximize resources available for the implementation of each specific project.
• Coordinate and participate in all aspects of the bond issuance process, from creating and maintaining a schedule, conducting independent analysis of financing alternatives, reviewing bond documents, reviewing all aspects of negotiated pricings, monitoring performance of underwriting teams, to post issuance analysis and all related tasks during the process. • Assist the City in developing credit rating strategies. Coordinate presentations with these parties on behalf of the City to the extent needed or as requested.
Clearly communicate any considerations that may impact the City’s credit rating and work with the Director of Finance in examining the City’s financials related to the bond sale(s).
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3 • Perform special projects, including, but not limited to, assisting with capital improvement programs and debt affordability analysis.
• Be available on a regular basis for consultations with City Staff.
SECTION 3
INSTRUCTIONS TO PROPOSERS
3.1 SUBMISSION INSTRUCTIONS
Proposals must be received in the Finance Department, located at 1001 W. Central Street, Manteca, California 95337 at or before 2:00 p.m. local time on Thursday, May 5, 2022. All proposals shall be submitted on 8 ½ x 11-inch paper and shall be bound or contained in a binder.
An electronic version of the proposal must also be provided on a USB drive.
Proposers shall submit one (1) original proposal and three (3) copies. The original proposal shall be marked as “Original” on the first page of the proposal in a location and font size that are easily identifiable. All proposals must be submitted under seal in either an envelope(s) or box, which shall be clearly marked on the outside to read:
Name of Proposer
RFP number and title
Proposal submittal deadline and time
Proposals shall be delivered to:
Finance Department
Attn: Kevin Williams
1001 W. Central St.
Manteca, CA 95337
3.2 PROPOSAL FORMAT
Proposals must be submitted in the following format. Non-conforming proposals will not be considered. Each section shall be clearly marked with either tabs or sections, which correspond to the sections below.
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4 In the event any of the sections below do not apply, Proposers shall indicate “Not Applicable” in response thereto.
3.2.1 SIGNATURE PAGE
Proposers must include a completed Signature Page, as attached hereto as Exhibit A, at the front of their proposals. Failure to include a completed Signature Page shall be grounds for rejection of the proposal.
3.2.2 COVER LETTER
The cover letter must include the Proposer’s name, address, and telephone number, as well as the name and email address of a designated contact individual.
The email address provided must be available to receive service of any notices sent regarding this RFP.
3.2.3 COMPANY OVERVIEW
A brief description of the company and its structure, including, but not limited to, the name(s), business address(es), and telephone number(s) of the company’s officers, directors, and associates, and the name(s) and address(es) of any parent or subsidiary companies.
3.2.4 SUBCONTRACTORS
If the Proposer will be using subcontractors to perform some or all of the work, the name(s) and address(es) of these subcontractors must be included, along with a description of which portion of the work or service they will perform. Said information shall be provided on the Subcontractor List, attached hereto as Exhibit B. If a contractor’s license is required to perform the work, the Proposer must include each subcontractor’s state license number, and type.
If the Proposer is part of a joint venture, one legal entity must be designated as the Primary Proposer. All other participants shall be listed as subcontractors.
3.2.5 RELEVANT EXPERIENCE
Provide a brief description of your company’s past relevant experience as it relates to the requested work or services. Include a minimum of five (5) references. Each reference should include the name, address, and phone number, along with a contact person and a description of the work performed. References should be listed in the Reference List, attached hereto as Exhibit C.
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5 3.2.6 SUPPORT TEAM
Identify the individual(s) who will form the support team for performing the work or services for this RFP. Include brief descriptions of each individual’s experience and a description of the role he or she will take in performing the work or service.
3.2.7 TIMEFRAME FOR COMPLETION
Provide a realistic approach to complete the work or services within the timeframe provided within this RFP.
3.2.8 ASSISTANCE FROM CITY
Provide a written summary of any information, access, or assistance you will expect or need from the City to complete the work or services within the given timeframe.
3.2.9 PROJECT COST
Provide a detailed breakdown of the costs associated with the work or services to be performed as well as an overall, total, cost for the services or work to be performed. In addition, provide the proposed costs for any services or work that may be performed at the City’s request, in addition to the work or services requested in this RFP, if applicable. Proposers are responsible for ensuring that all costs are included in this section. Failure to properly calculate costs or include additional costs will not be a basis for re-negotiating the compensation of any resulting agreement.
Proposals must include a 60-day price guarantee.
3.2.10 PROPOSED SCOPE OF WORK
Provide a summary of the work or services to be performed to be attached to the parties’ agreement as a scope of work. The scope of work must be concise and address each and every requirement of the proposed work or services, as set forth in Section 2. Proposals submitted without a concise scope of work suitable to be attached to the parties’ agreement as an exhibit will not be considered; copies of the proposal will not be accepted as a substitute for a scope of work.
3.2.11 ACKNOWLEDGMENT OF ADDENDA
Provide an acknowledgment of any addenda issued for this RFP, if applicable.
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6 3.2.12 EVALUATION OF THE PROPOSED AGREEMENT
Proposers must review the proposed agreement, which is attached to this RFP as Exhibit E, and acknowledge their willingness to enter into a final, negotiated agreement if awarded the bid. Proposers must list any exceptions to the terms of the proposed agreement in their proposals, acknowledge their ability to satisfy the insurance and any other requirements as set forth therein, and acknowledge their ability to abide by all other terms of the agreement. Failure to take exception to a term in the proposed contract will result in a waiver of the successful Proposer’s right to negotiate that term.
The City reserves the right to negotiate any term in the proposed agreement.
3.2.13 CONFLICT OF INTEREST
Proposers shall certify in their proposals that no official or employee of the City, or any business entity in which an official or employee of the City has an interest, has been employed or retained to solicit or aid in the procuring the award of this RFP.
3.2.14 AFFIDAVIT OF NON-COLLUSION
Proposers shall include a completed Affidavit of Non-Collusion with their proposals on the form attached hereto as Exhibit D. Failure to include a completed Affidavit of Non-Collusion may result in the rejection of the proposal as non-responsive.
3.3 TIMELINE OF EVENTS
The City expects this RFP to follow the below timeline:
April 6, 2022 Issuance of the RFP.
May 5, 2022 Proposals due.
May 19, 2022 Notice of Intent to Award sent to Proposers.
June 7, 2022 Present final agreement to City Council
for approval.
June 8, 2022 Services begin.
The City reserves the right to amend this schedule at any time.
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7 3.4 EVALUATION CRITERIA
The Evaluation Committee will review and score only those proposals that are deemed responsive to this RFP and presented in the format as set forth in Section 3.2. Failure to include any sections in the proposal will result in that proposal being deemed nonresponsive.
During the scoring process, the Evaluation Committee may contact the Proposer’s references or any other sources deemed relevant by the Evaluation Committee as part of their review of the Proposer’s qualifications to perform the requested services or work.
Selection will not be based on the lowest priced proposal, but will be based on the following criteria:
1. Proposer’s ability and history in providing the requested services or work for public agencies of similar size, population, and need as the City. 10 points.
2. Responsiveness of the proposal and the clarity and completeness of the proposed Scope of Work. 15 points.
3. Demonstrated technical competence and experience to perform the services or work requested in the RFP. 15 points.
4. Past record of performance of similar work or services as determined by all available information. This will be assessed not only on the information contained within the proposal, but also by discussions with the Proposers and their references, as well as other relevant entities or individuals who have used the Proposer for similar work or services. 40 points.
5. Proposer’s demonstrated ability to perform the work or services set out in the RFP within the given time frame. 20 points.
3.5 DISCUSSION WITH PROPOSERS AND CLARIFICATIONS TO PROPOSALS The City reserves the right to contact Proposers to seek clarification of their submitted proposals during the evaluation process. These discussions shall be solely for the purpose of ensuring the City has a full and complete understanding of the submitted proposals and the Proposer’s qualifications to perform the requested work or services.
The City will not discuss the contents of other proposals during these discussions.
3.6 ORAL PRESENTATIONS
The City reserves the right to request Proposers to make oral presentations to further explain their proposals and demonstrate their ability to perform the requested work or ATTACHMENT 3
8 services. Proposers will be advised in writing whether an oral presentation will be required and, if so, when and where said presentation shall take place.
3.7 REQUESTS FOR INFORMATION OR CLARIFICATION OF RFP
Proposers are responsible for submitting any and all questions concerning the work or services set forth in Section 2 or any other aspect of this RFP before the submittal deadline. Questions must be presented in writing and submitted to the Kevin Williams at the address noted above or via email at [email protected]. Proposers must include the RFP number in their requests for information.
3.8 WITHDRAWAL OR REVISION OF PROPOSALS
Proposers may withdraw or revise their proposals any time before the submittal date.
Requests to withdraw or revise proposals must be made in writing and submitted to the Kevin Williams at the address above or via email to: [email protected].
Proposals may not be withdrawn or revised after the submittal date.
3.9 SELECTION AND ANNOUNCEMENT OF APPARENT SUCCESSFUL
PROPOSER
Proposals will be evaluated by an Evaluation Committee as selected by the City. The Evaluation Committee will use the Evaluation Criteria as set forth in Section 3.5 in scoring the submitted proposals and determining which proposal will be presented to the City Council of the City of Manteca (“City Council”) for approval.
Proposers will be notified of the City’s decision in writing through a Notice of Intent to Award. The Notice of Intent to Award will be sent through email.
3.10 PROTEST OF AWARD
Proposers who wish to protest the RFP or announcement of award must submit their protests in writing to the Director of Legislative Services/City Clerk at 1001 W. Center St., Manteca, CA 95337.
Protests of the process, terms, conditions, or any other aspect of the RFP must be submitted before the RFP’s submittal date. Failure to submit a protest before this date will act as a waiver of the Proposer’s right to protest these portions of the RFP.
Protests of the announcement of the award must be made within five (5) working days of the date of the Notice of Intent to Award. Please note: City offices are closed to the public on Fridays, as well as all observed holidays. Protests must include the following information:
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9 1) The name, address, telephone number, and email address of the protesting Proposer;
2) The signature of the protesting Proposer or the representative of the Proposer; 3) The RFP number;
4) A detailed statement of the legal or factual basis for the protest; 5) All documents or other records that support the Proposer’s basis for the protest; 6) The form of relief requested; and
7) Acknowledgment of the Proposer’s willingness to accept any and all notices or decisions regarding this protest and any resulting appeal via email.
Protests will be considered and responded to by the City Manager or designee within five (5) working days of the receipt of the protest. The City Manager will issue a decision in writing to the Protester and any other involved parties. The decision of the City Manager is final and not subject to appeal at the administrative level.
Any costs incurred by filing and pursuing a protest or appeal shall be the sole responsibility of the Protester. The City shall not reimburse the Protester for the costs of a protest or appeal, even if the protest or appeal results in a favorable outcome for the Protester.
The procedures set forth above are mandatory and constitute a Protester’s sole and exclusive remedy in the event of a protest or appeal of the RFP or the award thereof.
Failure to comply with these procedures shall constitute a waiver of any right to further pursue a protest or appeal, including filing a claim or initiating legal proceedings.
The City reserves the right to extend any of the above timeframes as necessary. Said extensions shall be communicated to the Protester in writing via email.
SECTION 4
NOTICE TO PROPOSERS; GENERAL INFORMATION
4.1 NOTICE TO PROPOSERS
This RFP does not constitute an agreement or offer of employment between the City and the Proposers. The costs of preparing proposals shall be the sole obligation of the Proposers. Once submitted, all proposals become the property of the City.
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10 The successful Proposer shall be considered an independent contractor and not an agent, officer, or employee of the City or entitled to any benefits arising therefrom.
4.2 CONFIDENTIALITY
Proposals are only confidential during the evaluation process. Once an agreement has been signed between the City and the successful Proposer, any and all proposals shall be subject to disclosure under the California Public Records Act (“the Act”) as found under Section 6250 et seq. of the Government Code. Proposers are therefore responsible for ensuring that they do not include any confidential information in their proposals, such as trade secrets, social security numbers, or proprietary information.
Proposers are hereby put on notice that the City will not redact any portions of submitted proposals when releasing them pursuant to a request under the Act.
4.3 LATE PROPOSALS
The City assumes no responsibility for the submission of late proposals. It is the sole responsibility of the Proposers to ensure their proposals are received by the submittal date and time. The City will not accept proposals via email or fax. Late proposals will not be considered.
4.4 ADDENDA TO THE RFP
Proposers must carefully examine the specifications set forth in Section 2 and submit any and all questions or requests for information to the City as set forth in Section 3.8.
Failure to submit a request for information before the submittal date will result in a waiver of the Proposer’s right to protest any award under this RFP on the basis of the process, terms, conditions, or any claimed ambiguities regarding this RFP.
The City reserves the right to make corrections via written addenda to this RFP as needed prior to the submittal date. Addenda shall only be valid if issued in writing; oral communications about this RFP with City employees or agents will not be binding on the City unless set forth in a written addendum.
Addenda shall be posted on the City’s website in the section dedicated to this RFP.
Proposers must acknowledge any and all addenda issued by signing and dating the addenda and including them with their proposal.
Proposers are solely responsible for checking the City’s website and contacting the departmental contact person prior to the submittal date to ensure they are aware of and acknowledge any and all addenda in their proposals. Failure to acknowledge and include any or all addenda may result in the proposal being deemed non-responsive.
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11 4.5 COMMUNICATIONS WITH THE EVALUATION COMMITTEE OR CITY STAFF
Proposers shall not contact any member of the Evaluation Committee or any other City employee during the evaluation phase for this RFP unless contacted by the Evaluation Committee as allowed under Sections 3.6 or 3.7. Proposers who contact City personnel in an attempt to badger, cajole, bribe, influence, or obtain confidential information about the evaluations of the proposals during the evaluation phase may have their proposals declared disqualified from consideration.
4.6 FALSE OR MISLEADING STATEMENTS
Proposals containing false or misleading statements, or which include references that do not support an attribute or skill claimed by the Proposer, may be rejected as nonresponsive to this RFP.
If the City determines a Proposer provided false or misleading statements that were intended to mislead the City in its evaluation of the proposal, the proposal will be deemed non-responsive. The City further reserves the right to prohibit the Proposer from submitting proposals for work or services under future RFPs.
4.7 PREVAILING WAGE AND REGISTRATION WITH THE DEPARTMENT OF
INDUSTRIAL RELATIONS
The work or services set forth in Section 2 may constitute a public work for purposes of California’s prevailing wage laws. Proposers shall be responsible for determining whether the proposed work is a public work and subject to the payment of prevailing wage and registration with the Department of Industrial Relations for the audit of the same. Proposers who fail to verify whether the work or services requested in this RFP constitute a public work and are subject to California’s prevailing wage laws when calculating the amount of their bids shall not be allowed to amend the proposed amount to account for this mistake.
4.8 NEWS RELEASES
Proposers shall not issue news releases pertaining to the award resulting from this RFP without prior written approval of the City.
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12 EXHIBIT A
SIGNATURE PAGE
(Proposer to complete and place in front of proposal)
Individual/Company: ____________________________________________________________ Address: ______________________________________________________________________ Contact Person’s name: __________________________________________________________ Contact Person’s title: ___________________________________________________________ Contact Person’s telephone number: ________________________________________________ Contact Person’s email address: ___________________________________________________ The undersigned hereby certifies that he/she is a duly authorized official of their organization and has the authority to submit this proposal and sign on behalf of the organization and assure that all statements made in the proposal are accurate and truthful. The undersigned agrees to provide the work or services requested in this Request for Proposal at the price contained therein and will comply with all terms and conditions of the proposed agreement, unless otherwise stipulated through a written exception.
______________________________________________________________________________ Authorized Representative – Name Title
______________________________________________________________________________ Authorized Representative’s signature
Business License No. (if applicable):
(Manteca) ______________________________
(San Joaquin County) __________________________
Professional License No. (if applicable): ________________________ ATTACHMENT 3
13 EXHIBIT B
SUBCONTRACTOR LIST
(Proposer to complete and return with proposal)
Subcontractor No. 1 - Name: ____________________________________________________ Address: ______________________________________________________________________ Contact Person: ________________________________________________________________ Email: ________________________________ Title: ________________________________ Amount of work or services to be performed (percentage): ______________________________ Types of work or services to be performed: __________________________________________ ______________________________________________________________________________ Subcontractor No. 2 - Name: ____________________________________________________ Address: ______________________________________________________________________ Contact Person: ________________________________________________________________ Email: ________________________________ Title: ________________________________ Amount of work or services to be performed (percentage): ______________________________ Types of work or services to be performed: __________________________________________ ______________________________________________________________________________ Subcontractor No. 3 - Name: ____________________________________________________ Address: ______________________________________________________________________ Contact Person: ________________________________________________________________ Email: ________________________________ Title: ________________________________ Amount of work or services to be performed (percentage): ______________________________ Types of work or services to be performed: __________________________________________ ______________________________________________________________________________ ATTACHMENT 3
14 EXHIBIT C
REFERENCE LIST
(Proposer to complete and return with proposal)
List five (5) references where the same or similar work or services were provided.
Reference No. 1 – Name: ________________________________________________________ Address: ______________________________________________________________________ Contact Person: _________________________________ Title: _________________________ Email: ______________________________ Telephone No.: ____________________________ Amount of contract: _____________ Date and type of work or services performed: __________ ______________________________________________________________________________ ______________________________________________________________________________ Reference No. 2 – Name: ________________________________________________________ Address: ______________________________________________________________________ Contact Person: _________________________________ Title: _________________________ Email: ______________________________ Telephone No.: ____________________________ Amount of contract: _____________ Date and type of work or services performed: __________ ______________________________________________________________________________ ______________________________________________________________________________ Reference No. 3 – Name: ________________________________________________________ Address: ______________________________________________________________________ Contact Person: _________________________________ Title: _________________________ Email: ______________________________ Telephone No.: ____________________________ ATTACHMENT 3
15 Amount of contract: _____________ Date and type of work or services performed: __________ ______________________________________________________________________________ ______________________________________________________________________________ Reference No. 4 – Name: ________________________________________________________ Address: ______________________________________________________________________ Contact Person: _________________________________ Title: _________________________ Email: ______________________________ Telephone No.: ____________________________ Amount of contract: _____________ Date and type of work or services performed: __________ ______________________________________________________________________________ ______________________________________________________________________________ Reference No. 5 – Name: ________________________________________________________ Address: ______________________________________________________________________ Contact Person: _________________________________ Title: _________________________ Email: ______________________________ Telephone No.: ____________________________ Amount of contract: _____________ Date and type of work or services performed: __________ ______________________________________________________________________________ ______________________________________________________________________________ ATTACHMENT 3
16 EXHIBIT D
AFFIDAVIT OF NON-COLLUSION
I hereby affirm that:
1) I am the Proposer (if Proposer is an individual), a partner of the Proposer (if the Proposer is a partnership), or an officer or employee of the Proposer having authority to sign on the Proposer’s behalf (if Proposer is a corporation).
2) The proposal has been arrived at by the Proposer independently and has been submitted without collusion with, or without agreement, understanding, or planned common course of action with, any other vendor or materials, supplies, equipment, or services described in the request for proposal, designed to limit the independent bidding or competition. 3) The contents of the proposal have not been communicated by the Proposer or its employees or agents, to any person not an employee or agent of the Proposer or its surety or any bond furnished with the proposal, and will not be communicated to any such person prior to the official opening of the proposal.
4) I have fully informed myself regarding the accuracy of the statements made on this affidavit.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed in: __________________, ______________________ on: ___________________ by:
(City) (State) (Date)
__________________________________________________
Name of Proposer
___________________________________________________
Address
___________________________________________________
City, State, Zip Code
___________________________________________________
Authorized Signature
ATTACHMENT 3
1 EXHIBIT E
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into this ____ day of ________, 20___, by and between the CITY OF MANTECA, a public body, corporate and politic ("City") and _____________, a ___________ corporation ("Consultant").
RECITALS
A. Consultant is specially trained, experienced, and competent to perform the professional services required by this Agreement.
B. Consultant possesses the skill, experience, ability, background, certification, and knowledge to provide the services described in this Agreement on the terms and conditions specified herein.
C. City desires to retain Consultant to render the professional services set forth in this Agreement.
AGREEMENT
1. Scope of Services. Consultant shall perform the __________ services described in the attached Attachment 1 that is incorporated by this reference, and pursuant to the Proposal submitted by Consultant dated ______, and attached hereto as Attachment 2.
Consultant shall provide these services at the time, place, and in the manner specified in Attachment 1, subject to the direction of the City through its staff that may be provided from time to time. Performance of the ______ services is sometimes referred to herein as “the Project.”
2. Work Through City Staff. Consultant shall perform its services pursuant to this Agreement solely through City staff. No communications, information or documentations shall be made directly to any applicant to the City without the prior written consent of the City. This shall not apply to the sole request of information or clarification of information by Consultant from the applicant. All requests shall be noted to City in an expeditious manner.
3. Time of Performance. Consultant’s services will commence upon execution of this Agreement and shall be completed in accordance with the Schedule of Activities, attached hereto as Attachment 3. All work shall be completed no later than _______________. Failure to submit work products in accordance with the Schedule of Activities may result in the City withholding progress payments. Repeated failure to complete work products in accordance with the Schedule of Activities may result in a reduction of the total compensation provided for in Section 4 herein.
4. Compensation. Without additional authorization from the City, compensation to be paid to Consultant shall not exceed _______________DOLLARS ($______). Payment by City ATTACHMENT 3
2 under this Agreement shall not be deemed a waiver of any defects, even if those defects were known to the City at the time of payment.
5. Method of Payment. Consultant shall submit monthly billings to City specifying and describing the work performed during the preceding month. Consultant's bills shall include a brief description of the services performed, the date the services were performed, the number of hours expended and by whom, and a description of any reimbursable expenditures. Full payment of each task will only be made at such time as each task is completed.
City shall pay Consultant no later than 30 days after approval of the monthly invoice by City staff. Payments may be delayed by City if Consultant fails to provide services in accordance with the Schedule of Activities, unless the City has provided prior written consent to any delay in the schedule.
6. Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, the term "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the time of execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without the City’s prior written authorization.
7. Termination. This Agreement may be terminated by the City immediately for cause, or by either party without cause upon 15 days’ prior written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination upon submittal of an invoice for same.
8. Ownership of Documents; Confidentiality.
A. All plans, studies, documents, and other writings prepared by and for Consultant, its officers, employees, agents, and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of City upon payment to Consultant for such work. City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other writings to City upon written request by City. Consultant shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose.
B. All memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other documents and data, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant. These materials shall not, without the City’s prior written consent, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall these materials be disclosed to any person or entity not connected with the performance of services under this Agreement. Nothing furnished to Consultant that is otherwise known to Consultant, or is generally known, or has become known to the related profession shall be deemed confidential. Consultant shall not use City's name or insignia, photographs relating to the Project for which Consultant's services are ATTACHMENT 3
3 rendered, or any publicity pertaining to the Consultant's services under this Agreement in any magazine, trade paper, newspaper, television or radio production, or other similar medium without the City’s prior written consent.
9. Consultant's Books and Records.
A. Consultant shall maintain all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City, for a minimum period of three years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement.
B. Consultant shall maintain all records that document performance under this Agreement for a minimum period of three years, or for any longer period required by law, from the date of termination or completion of this Agreement.
C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor, or a designated representative of any of these officers. Copies of such documents shall be provided to City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address specified in Section 16 of this Agreement.
D. Where City has reason to believe that records or documents may be lost or discarded due to the dissolution or termination of Consultant's business, City may, by written request, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to these records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor-ininterest.
10. Independent Contractor. In the performance of the work and services required by this Agreement, Consultant shall act as and be an independent contractor and not an agent, or employee of the City. Consultant shall obtain no rights to retirement or other benefits that accrue to City's employees, and Consultant expressly waives any claim it may have to any such rights.
11. Interest of Consultant.
A. Consultant represents that neither it nor any employee has any investment or interest in real property, and shall not acquire any such interest, direct or indirect, within the area covered by this Agreement, or any other source of income, interest in real property, or investment that would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further represents that, in the performance of its duties hereunder, no person having any such interest shall perform any services under this Agreement.
B. Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant:
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4 (1) will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation, or counsel independent of the control and direction of the City, or of any City official, other than normal Agreement monitoring; and
(2) possesses no authority with respect to any City decision beyond the rendition of information, advice, recommendation, or counsel. (FPPC Reg. 18700(a)(2).)
12. Professional Ability of Consultant.
A. City is relying upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement.
Consultant shall therefore provide skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise.
B. The primary provider of the services required by this Agreement shall be ______________. A list of other individuals assigned to the Project will be provided to City for its review and approval, and these individuals shall not be replaced without the City’s prior written consent.
13. Compliance with Laws. Consultant shall use the customary standard of care in its profession to comply with all applicable federal, state, and local statutes, codes, ordinances, and regulations.
14. Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance, and approvals that are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance, and approvals that are legally required of Consultant to practice its profession.
15. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, and hold harmless the City, its officers, officials, agents, employees, and volunteers, from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therewith), arising out of Consultant’s performance of this Agreement, or Consultant’s failure to comply with any of its obligations contained in this Agreement; excluding, however, any claim arising out of the active negligence or willful misconduct of the City, its officers, agents, employees, or volunteers.
16. Insurance Requirements.
A. Job specific insurance requirements can be found on the attached Attachment
4. Other insurance provisions can be found below:
ATTACHMENT 3
5 B. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing an A.M. Best's rating of no less than A:VII and shall be endorsed with language substantially as follows:
(1) The City, its elected and appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts, or equipment furnished in connection with such work.
(2) The policy shall be considered primary insurance as respects the City, its elected and appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it. (3) The insurance shall apply to each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (4) The insurer waives all rights of subrogation against the City, its elected and appointed officers, officials, employees, and agents. (5) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officers, officials, employees, agents, or volunteers. (6) The insurance provided by the policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after 30 days written notice has been received by the City.
(7) The City will not accept any endorsements that were issued in 2004. Acceptable endorsement forms are CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Consultant shall demonstrate financial capability for payment of those deductibles or self-insured retentions.
D. Certificates of Insurance. Consultant shall provide to City certificates of insurance with original endorsements as evidence of the required insurance coverage.
Certificates of insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement.
17. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed ATTACHMENT 3
6 to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: City of Manteca
1001 W. Center Street
Manteca, CA 95337
Attention: _______________
If to Consultant: ________________________
________________________
________________________
Attention: _______________
18. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in their entirety by this Agreement.
19. Amendments. This Agreement may be amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
20. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience, and competence of Consultant. Assignments of any or all rights, duties, or obligations of the Consultant under this Agreement will be permitted only with the express written consent of the City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of the subcontractor.
Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay any monies due to any such subcontractor other than as may be required by law.
21. Waiver. Waiver of any breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach or default of the same or any other provision under this Agreement.
22. Severability. If any provision of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
23. Controlling Law; Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California, and any legal action relating to this Agreement shall take place in the Superior Court, County of San Joaquin.
24. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
ATTACHMENT 3
7 25. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS, and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation.
26. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy has been signed by both parties.
27. Authority to Enter Agreement. Consultant warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement. Each party warrants to the other that the signatories to this Agreement have the legal power, right, and authority to enter into this Agreement and to bind each party.
28. Prohibited Interests.
A. Consultant warrants that it has not employed or retained any person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement.
Further, Consultant warrants that it has neither paid nor agreed to pay any person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For any breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
B. For the term of this Agreement, no member, officer, or employee of City, during the period of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
29. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
30. Precedence. In case of conflict between Consultant’s Proposal/Consultant’s attachments and the City’s Agreement/City’s attachments, the City’s Agreement and City’s attachments shall take precedence over Consultant’s proposal/Consultant’s attachments.
ATTACHMENT 3
8 This Space Purposely Left Blank
ATTACHMENT 3
9 TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth in the introductory paragraph on page 1 above.
CITY OF MANTECA: CONSULTANT:
_________________________________ ___________________________________ Benjamin J. Cantu, (Type name of Consultant/form of organization)* Mayor
ATTEST: By: ___________________________________
(Signature)
_________________________________ ___________________________________ Cassandra Candini-Tilton, (Type name and title)
Director of Legislative Services
COUNTERSIGNED: By: ___________________________________
(Signature)
_________________________________ ___________________________________ Bret Harmon, (Type name and title)
Director of Finance
COUNTERSIGNED: Address: ____________________________
_________________________________ ____________________________ Dawn Cortesi,
Acting Director of Human Resources Telephone: ____________________________ APPROVED AS TO FORM:
_________________________________
L. David Nefouse,
City Attorney
ATTACHMENT 3
10 ATTACHMENT 1
REQUEST FOR PROPOSAL
ATTACHMENT 3
11 ATTACHMENT 2
CONSULTANT’S PROPOSAL
ATTACHMENT 3
12 ATTACHMENT 3
SCHEDULE OF ACTIVITIES
ATTACHMENT 3