Montebello City Council
December 14, 2022

RFP No. 23-2
City of Montebello 44

EXHIBIT K

PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS: that

(Insert full name and address and legal title of Contractor) as Principal, hereinafter called Contractor, and,

(Insert full name and address or legal title of Surety) as Surety, hereinafter called Authority, in the amount of $_____________ for the payment whereof Contractor and Surety bind themselves, their heirs, executers, administrators, successors and assigns, jointly and severally, firmly by these presents.

WHEREAS, Contractor has by written agreement dated _______________________, 20____, entered into a contract with the City for Contract No. _______________, which contract is by reference made a part hereof, and is hereinafter referred to as the Contract.

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor shall promptly and faithfully perform said Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect.

The Surety hereby waives notice of any alteration or extension of time made by the City.

Whenever Contractor shall be, and is declared by the City to be in default under the Contract, the City having performed City’s obligations thereunder, the Surety may promptly remedy the default, or shall promptly

1. Complete the Contract in accordance with it terms and conditions, or

2. Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the lowest responsible bidder, or, if the City elects, upon determination by the City and the Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and the Authority, and make available as Work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, the amount set forth in the first paragraph hereof. The term "balance of the contract price," as used in this paragraph, shall mean the total amount payable by the City to Contractor under the Contract and any amendments thereto, less the amount properly paid by the City to Contractor.

Any suit under this bond must be instituted before the expiration of two (2) years from the date on which final payment under the Contract falls due.

No right of action shall accrue on this bond to or for the use of any person or corporation other than the RECIPIENT or the heirs, executors, administrators or successors of the City.

RFP No. 23-2
City of Montebello 45

Signed and sealed this ____________________ day of 20____.

WITNESS PRINCIPLE
(SEAL)
(TITLE)

WITNESS SURETY
(SEAL)
(TITLE)

Attach hereto proof of authority of officers or agents to sign bond.

RFP No. 23-2
City of Montebello 46

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CITY OF MONTEBELLO
PROFESSIONAL SERVICES AGREEMENT NO. 4056
WITH ORANGE COAST PETROLEUM EQUIPMENT, INC.

THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into on December 14, 20 22 (“Effective Date”) , by and between the CITY OF MONTEBELLO, a California municipal corporation ( the “CITY”) and ORANGE COAST PETROLEUM EQUIPMENT, INC. ( the “ CONTRACTOR”). The CITY and the CONTRACTOR are sometimes referred to herein individual as the “Party,” and jointly as the “Parties.”

RECITALS

WHEREAS, t he CITY desires to retain a qualified professional CONTRACTOR to remove, dispose, and replace existing hose reels, as well as associated components with high performance and dual pedestal framed hose reels system located at the Transportation Department’s facility; and

W HEREAS, the CONTRACTOR represents that it is fully qualified to perform such services by vi rtue of its experi ence and the training, education and expertise of its principals and employees; and

WHEREAS, the CONTRACTOR represents the degree of specialized expertise contemplated within California Government Code, Section 37103, and is qualified to perform such services by virtue of its experience and the training, education, and expertise of its principals and employees; and

WHEREAS, no official or employee of the CITY has a financial interest, within the provisions of Sections 1090 – 1092 of the California Government Code, in the subject matter of this Agreement; and

WHEREAS, CONTRACTOR responded to CITY’s Request for Proposal dated September 29, 2022 (“RFP No. 23-2”), as such is set forth fully in Exhibit “A” hereto and incorporated fully herein by this reference (hereinafter “Cont ractor Proposal”).

NOW THE REFORE, in c onsideration of performance by the Parties of th e covenants and conditions herein contained, the Parties hereto agree as follows:

SECTION 1. INCORPORATION OF RECITALS AND OTHER CONTRACT

DOCUMENTS

A. T he above-referenced Recitals constitute a material part hereof and shall hereby be incorporated by reference. Moreover, this Agreement consists of the following documents, in order of precedence, all of which are incorporated herein and made part of this Agreement, as though fully set forth herein:

a. This Agreement and its Exhibits, including but not limited to:
b. RFP No. 23-2, attached hereto as Exhibit “A”;
c. CONTRACTOR’S Proposal and “Best and Final Offer” to RFP No. 23-2 dated November 23, 2022, attached hereto as Exhibit “B ”; and
d. All other documents, including but not limited to all applicable

PROFESSIONAL SERVICES AGREEMENT NO. 4056

bonds, insurance certificates, permits, notices, schedules, forms, certifications, and affidavits.

B. These documents shall be collectively referred to herein as the “Contract Documents.” In the event of a conflict among the Contract Documents, the order of precedence list above shall apply.

SECTION 2. SERVICES / COMPENSATION.

A. The CONTRACTOR shall provide to the CITY those services that are set forth fully in RFP No. 23-2 and Contractor ’s Proposal, attached hereto as Exhibit “A and B” and incorporated fully herein by this reference ( hereinafter “Professional Services”).

B. The CONTRACTOR shall complete the Scope of Services in a timely manner, and in accordance with an agreed- upon work schedule to be determined by the Parties.

C. CONTRACTOR shall be compensated at a sum not -to-exceed Ninety Thousand and Eleven Dollars ($90,011) (the “Maximum Compensation”) for the performance of the Scope of Services as set forth in Exhibit “B ”.

CONTRACTOR shall provide an itemized billing statement to CITY for the Scope of Services performed. The CONTRACTOR shall not incur fees or costs which exceed the Maximum Annual Compensation without the prior written consent of the CITY.

D. The CITY will be invoiced upon completion of the Scope of Services set forth herein. Payment in full of an invoice must be received by the CONTRACTOR within thirty (30) days of the date of such invoice.

E. Work performed shall be deemed approved and accepted by the CITY as and when invoiced unless the CITY objects within fifteen (15) days of invoice date by written notice specifically stating the details in which the CITY believes such work is incomplete or defective, and the invoice amount(s) in dispute.

The CITY shall pay undisputed amounts as provided for in the preceding paragraph.

SECTION 3. T ERM.

This A greement sh all c ommence on December 14, 2 022, and shall terminate upon completion of the Professional Services; provided such shall be on or before February 28, 2023 (“Date of Completion”), unless such deadline is extended in writing by a further agreement between the Parties or the Agreement is terminated sooner as provided in Section 8 herein.

SECTION 4. PERFORMANCE.

a. The CONTRACTOR sh all at all tim es, faithfu lly, competently, and to t he best of its ability, experience, and talent, perform all tasks described herein.

b. The CONTRACTOR sh all employ, at a minimum, genera lly accepted standards a nd practices utilized by companies engag ed in providing sim ilar services, as a re required of CONTRACTOR hereunder, i n meeting its o bligations under this Agreement.

PROFESSIONAL SERVICES AGREEMENT NO. 4056

c. The CONTRACTOR sh all be knowledgeabl e of a nd subjec t to al l CI TY ordinances, rul es and regul ations, standard oper ating pr ocedures, and t he supervisory chain of command.

d. The CONTRACTOR shall have t he rig ht to retai n, subj ect to the CITY's ap proval, a dditional individuals, contractors or sub contractors to assist in the compl etion of services as herein define d. C ompensation for addition al individuals, contractors or sub contractors sh all be t he sole and excl usive responsibility of the CONTRACTOR.

e. The CONTRACTOR sh all r etain al l original reports, fiel d an d o ffice notes, correspondence, calcul ations, maps , an d other documents specificall y related to the services provided by the CONTRACTOR pursuant to this Agreement, other than documents which are exempt from disclosure pursuant to t he a ttorney- client privilege or any other law. Said do cuments sh all be made ava ilable for inspection by the CITY upon request.

SECTION 5. WOR K PRODUCT.

a. The CONTRACTOR hereby agrees that all w ork product produced pursuant t o this Agreement, and provided to the CITY during and upon completion of this Agreement, sh all be the property of t he CITY, and ownership of said work product sh all be r etained by t he CITY. The CONTRACTOR m ay take and retai n copies of such wr itten p roducts as desired, but no such wri tten products shall be the subject of a copyright application by the CONTRACTOR.

b. All dat a, do cuments, discussion, or other inform ation develop ed or received by the CONTRACTOR or provided for performance of this Agreement are deemed confidential and shall not be disclosed by the CONTRACTOR without prior written consent by the CITY. T he CITY shall grant such consent if disclosure is legally required. All such w ritten products shall be returned to the CITY upon the termination or expir ation of this A greement. The CONTRACTOR agree s that t he covenants contained in this Section shall survive the expiration or termination of this Agreement.

SECTION 6. EXTRA SERVICES.

No ex tra ser vices over and above the Compe nsation shall be render ed by the CONTRACTOR under this Agreemen t unless such extra servi ces first shall have been d uly authorized in wri ting by t he CITY’s City Manager (the “City Manager”).

SECTION 7. CITY SUPERVISION.

The City Manager shall have the right of general supervision of all work performed by the CONTRACTOR and sh all be the CITY’s agent with r espect to obtaining the CONTRACTOR’s compliance hereunder.

SECTION 8. T ERMINATION.

In the event that either Party hereto fails or refuses to perform any of the provisions of this A greement at the time and i n the manner required, t he non-defaulting party shall give the defaulting party written notice of the default, the nature of the default, and of the steps necessary to cure the default.

PROFESSIONAL SERVICES AGREEMENT NO. 4056

a. Termination for Cause. In the event that any of the provisions of the Agreement are violated by either party, the non- defaulting Party may terminate the Agreement by serving written notice upon the other Party, listing the violation(s) and its intent to termin ate such Agreement unless within ten (10) days after the serving of such notice, such violation shall cease or be rectified, the contract shall upon the expiration of an additional thirty (30) days cease and terminate. Violations by the CONTRACTOR which cannot be corrected within ten (10) days, said contract shall at the option of the C ITY cease and terminate upon the giving of like notice. In the event of any such termination for default by the CONTRACTOR, the CITY may take over the work and prosecute the same to completion by contract or otherwise for the account and at the expense of the CONTRACTOR. The CONTRACTOR and his sureties shall be liable to the C ITY for any excess cost occasioned in the event of any such termination. This change shall not be construed to prevent the termination, for other causes authorized by law or other provisions of this contract.

In the event of a termination for cause, the CONTRACTOR shall only be entitled to the Compensation for those Professional Services satisfactory performed on or before the effective date of termination.

b. Termination for Convenience . T he CITY shall have t he option, at its sole discretion and without cause, to terminate this Agreement in wh ole, or in part, by giving t en ( 10) busine ss day s’ written noti ce to the CONTRACTOR. Upo n the termination of this A greement as pro vided herei n, t he CITY sh all provide to the CONTRACTOR the part of Compensation which would otherwise be payable to the CONTRACTOR for services the CONTRACTOR had compl eted as of t he date of termination, l ess t he amou nt of al l pre vious payment with r espect to t he Compensation. Further, upon such a termination for convenience by the CITY, the Parties agr ee that the CONTRACTOR sh all be reimbur s ed for an y “non- refundable” costs that the CONTRACTOR has incurred for its services under this Agreement, provided that: ( 1) such “non- refundabl e” costs w ere i ncurred by the CONTRACTOR prior to t he date of termination, and ( 2) th at the CONTRACTOR provides t he CITY with adequat e proof that the CONTRACTOR incurred the costs, and is una ble to be seek a refund for such costs. S uch “non- refundable” costs may include, but are not limited to, travel reservations incurred by the CONTRACTOR f or its perfo rmance of services under this Agreement . The CONTRACTOR agrees t o cease all w ork under this Agreement on o r b efore t he effective date of any notice of termination.

SECTION 9. EMP LOYMENT OF CITY EMPLOYEES.

No regul ar employ ee of t he CITY sh all be employ ed by the CONTRACTOR during the term of this Agreement.

SECTION 10. NON- LIABILITY OF CITY OFFICIALS AND EMPLOYEES.

No official or employee of the CITY shall be personally liable to the CONTRACTOR in the event of any default or breach by the CITY, or for any amount which m ay become due to the CONTRACTOR.

SECTION 11. I NDEPENDENT CONTRACTOR.

a. T he CONTRACTOR is and shall, at al l times, remain as t o the CITY a wholly independent contractor. Neither t he CITY nor an y of its el ected o fficials, officers, employee s, or a gents sh all h ave contr ol o ver t he conduct o f the

PROFESSIONAL SERVICES AGREEMENT NO. 4056

CONTRACTOR except as ex pr essly set forth in this Agreeme nt. Th e CONTRACTOR shall not at any time or in any manner represent that he or she is in any manner an elect ed official, o fficer, employ ee, or agent of t he CITY. N o employee benefits sh all be availa ble to the CONTRACTOR in connecti on with the performan ce of this Agreement. Except as provided in this A greement, the CITY shall not pay salary, wages, or other compensation to the CONTRACTOR for performance hereund er f or the CITY, t he CITY shall not b e liable for compensation to the CONTRACTOR, the CONTRACTOR’s em ployee s o r the CONTRACTOR’s sub contractors f or injur y or sickness arisi ng out o f p erforming services hereunder.

b. T he
parti es fu rther ackno wledge and agr ee that nothi ng in this Agreement sh all create or be constr ued to create a pa rtnership, joint ventur e, employment rel ationship or an y other rel ationship except as set f orth in this Agreement.

c. The CITY sh all not dedu ct fr om t he Compe nsation paid to the CONTRACTOR a ny sums requir ed for S ocial S ecurity, withholding tax es, FICA, state disa bility insurance or any other fed eral, state or l ocal t ax or charge which may or may n ot be in effect or hereina fter enact ed or requir ed as a charg e or withholding on t he compensation p aid to the CONTRACTOR. The CITY sh all have no r esponsibility t o provi de the CONTRACTOR, its employees or subcontractors with workers’ compensation insurance or any other insurance.

SECTION 12. CalPERS ANNUITANTS AND ELIGIBILITY INDEMNITY.

a. If the CONTRACTOR is a California Public Employees’ Retirement System (“CalPERS”) annuitant, the CONTRACTOR must provide the City with written notification of such fact a minimum of 14 calendar days prior to commencement of services under this Agreement. Failure to provide such notification may result in termination of the Agreement, and any penalties or other costs relating thereto shall be borne by the CONTRACTOR. If this Agreement remains in place, the CONTRACTOR shall execute any amendment(s) to this Agreement requested by the City in order to comply with all laws and regulations applicable to CalPERS annuitants.

b. In t he
event that the CONTRACTOR or any employee, agent, or
subcontractor of the CONTRACTOR providing services under this Agreement claims o r is d etermined by a court of competent jurisdiction or CalPERS t o be eligible for enro llment i n CalPERS as an employee of t he CITY, the CONTRACTOR sh all ind emnify, defend, an d hol d harmless the CITY for the payment of any employee and/or employer contributions fo r CalPERS benefits on behalf of the CONTRACTOR or its employees, agents, or sub contractors, as well as for t he payment of a ny p enalties and i nterest on such con tributions, which would ot herwise be the responsibility of the CITY.

c
. N otwithstanding any o ther agency, state or feder al p olicy, rul e, regulation, law or ordinance to t he contr ary, the CONTRACTOR and any of its employees, a gents, a nd sub contractors providing service under this A greement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit , o r an y i ncident o f employment by the CITY, including but not limited to e ligibility to enroll in PERS as an employee o f the

PROFESSIONAL SERVICES AGREEMENT NO. 4056

CITY and entitl ement to any con tribution to be p aid by the CITY f or employ er contribution and/or employee contributions for PERS benefits.

SECTION 13. LEGA L RESPONSIBILITIES.

The CONTRACTOR shall at all tim es observe and comply with all app licable laws, ordinances, c odes, and reg ulations of the f ederal, stat e, and loc al governments including, but not limited to the Montebe llo Mu nicipal Cod e. T he CITY, and its appointed or elected officers, employees, or agents, shall not be liable at law or in equity occasioned by failure of the CONTRACTOR to comply with this section.

SECTION 14. I NDEMNIFICATION.

The CONTRACTOR agrees to, and sh all d efend, ind emnify, protect a nd h old harmless, the CITY, its elected and appointed boards, officers, officials, employees, agents and volunteer s from and ag ainst an y a nd all claim s, demands, lawsuit s, defense costs, civil, penalties, expenses, causes of action, and judgments at law or in equity, or liability of any kind or nature which the CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers may sustain or incur or which may be im posed upo n them for injuries or deaths of persons, or damage t o property arising out of the CONTRACTOR’s neg ligent or wrongf ul act, or omission under t he terms of this Agreeme nt, except only liability arising out of t he sole negligence of the CITY.

SECTION 15. I NSURANCE COVERAGE.

a. D uring t he term of this Agreement, the CONTRACTOR sh all carry, maintain, and kee p in ful l force and e ffect i nsurance agai nst claims f or de ath or injuries to p ersons or damages to property that m ay arise from or in connecti on with CONTRACTOR’s performance of this Agreement. S uch insurance shall be of the types and in the amounts as set forth below:

• Commercial Gen eral Liabil ity (CGL) : In surance S ervices Office Form C G 00 01 cov ering CGL on an “ occurrence” basis for bod ily inj ury and property d amage, i ncluding products-completed op erations, person al inj ury, an d advertising inj ury, with l imits no l ess than $1,00 0,000 per occurrence. If a general aggregate limit applies, the limit shall be twice the required occurrence limit.

• B
usiness Automobile Lia bility Ins urance: If applicable, Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if the CONTRACTOR has no owned autos, Code 8 (h ired) and 9 (n on-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.

• Worker's Compensation insurance as requir ed by t he laws of t he State o f California, with St atutory L imits, and Employ er’s Lia bility I nsurance with limit of no less than $1,000,000 per accident for bodily injury or disease.

• Professional Lia bility insurance appropri ate to t he CONTRACTOR’S profession, with limit no less than $2,00 0,000 per occurrence or claim, $2,000,000 aggregate.

b. If t he CO
NTRACTOR mai ntains higher limits than t he minimums shown

PROFESSIONAL SERVICES AGREEMENT NO. 4056

above, t he CITY requir es and sh all be entitl ed to cov erage for t he higher limits maintained by the CONTRACTOR.

c. The CONTACTOR sh all require each of its sub contractors, if any, to maintain insurance coverage that meets all of the requirements of this Agreement.

d. T he p olicy or p olicies requir ed by this A greement sh all be issued by an insurer admitted in the State of California and with a current r ating of at least A :VII in the latest edition of Best's Insurance Guide.

e. E ach insurance policy required above shall state that coverage shall not be canceled, except after thirty (30) days’ prior written notice (ten [10] days f or non-payment) has be en giv en to t he C ITY. The CONTRACTOR a grees that if it does no t keep the aforesaid insurance in full force and e ffect the CITY may either (i) immediately terminate this A greement for Cause; or (ii) take out t he necessary insurance and pay, at the CONTRACTOR’s expense, the premium thereon.

f. E
vidence of Insurance prior to commencement . The Contractor shall provide to the CITY Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements no later than five (5) business days prior to commencement of service and at least fifteen (15) business days prior to the expiration of any policy. Unreasonable failure to provide such evidence may be cause for termination of the Agreement as provided herein or delay the services’ commencement date. The evidence of insurance shall be U.S. mail or email to:

City of Montebello
Attn: Risk Manager
1600 West Beverly Boulevard
Montebello, CA 90640
Email: [email protected]

g. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non -renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to the CITY by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided.

h. Evidence of Insurance during the entire term of the Agreement. At all times during the term of this A greement, the CONTRACTOR shall maintain on file with the CITY’s Risk Manager a certificate or certificates of insurance showing that the aforesaid policies are in effect in the required amounts and naming the CITY as an additional i nsured. The CONTRACTOR shall, prior t o commencement of w ork under this Agreement, file with the CITY’s Risk Manager such certificate(s).

i. The CONTRACTOR shall provide proof tha t p olicies of insurance required herein expiri ng duri ng t he term of this Agreement have be en renew ed or replaced wit h other policies providing at least t he same coverage. S uch proof will be furnished at least two (2) weeks prior to the expiration of the coverages.

j. T he gener
al liability and automobile policies of insurance
required by this Agreement sh all contain an endorsement nami ng the CITY, its

PROFESSIONAL SERVICES AGREEMENT NO. 4056

off icers, employees, agents and volunteers as additional insureds. All of the policies required under this Agreement sh all co ntain an endor sement providing that t he policies cannot be canceled or reduced except on thirty days’ prior written notice to the CITY. The CONTRACTOR a grees to require its i nsurer to modify t he certificates of i nsurance to delete any exculpatory wording stating that failure of the insurer to mail wri tten notice of cance llation imposes no o bligation, an d to d elete the word “endeavor” with regard to any notic e provisions.

k. T he
i nsurance provided by the CONTRACTOR shall be primary to any coverage availa ble to the CITY. A ny i nsurance or self-i nsurance maintained by the CITY, its o fficers, employees, agents, or volunteers, sh all be in excess of CONTRACTOR’s insurance and shall not contribute with it.

l. All i nsurance cov erage pro vided pursua nt t o this A greement sh all n ot prohibit the CONTRACTOR, and CONTRACTOR’s employees, agents or subcontractors, from waiving t he right of subrogati on prior to a loss. The CONTRACTOR hereby waives all rights of subrogation against the CITY.

m. A ny deductibles or self-insured retentions must be declared to and approved by the CITY. A t the option of the CITY, the CONTRACTOR shall either reduce or eliminate the deductibles or self-insured retentions with respect to the CITY, or the CONTRACTOR shall procure a bond guaranteeing payment of losses and expenses.

n. Pr ocurement of insurance by t
he CONTRACTOR shall not be construed as
a limitation of the CONTRACTOR'S liability or as full perfo rmance of CONTRACTOR’s duti es to indemnify, h old ha rmless an d defen d und er the indemnity covenants of this Agreement.

SECTION 16. SUBCONTRACT, ASSIGNMENT OR DELEGATION.

The CONTRACTOR shall n ot subcontract, d elegate, or assig n its duties or rights hereunder, either in whole or in pa rt, without the prior written consent of the CITY.

Any proposed subcontract, delegation, or assignment shall provide a description of the services to be covered, identification of the proposed sub-contractor, delegee, or assignee, and an explanation of why and how the same was selected, including the degree of competition involved.

Any su bcontract, d elegation or assignment sh all be made in t he name o f the CONTRACTOR and shall not bind or purport to bind the CITY and shall not release the CONTRACTOR from any o bligations und er this Agreement i ncluding, bu t n ot limited to, t he duty to prop erly supervise and coordinate the w ork of employees, assignees, d elegees or sub-contractors. No such subco ntract, d elegation or assignment shall result in any increase in the amount of total compensation payable to the CONTRACTOR under the Agreement.

SECTION 17. NO WA IVER.

Waiver by any p arty hereto of any te rm, condition or covenant of this Agreemen t shall not constitute the waiver of any other term, condition, or covenant hereof.

SECTION 18. DI SPUTE RESOLUTION; GOVERNING LAW.

Disputes regarding t he interpretation or appli cation of an y p rovision(s) of thi s

PROFESSIONAL SERVICES AGREEMENT NO. 4056

Agreement sha ll, to t he extent reasonably feasible, be resolved through good faith negotiations between t he P arties. If any action at la w or in equity is broug ht t o enforce this Agreement or b ecause of a lleged disput e, breach, default o r misrepresentation in connection with the provisions of this Agreement, the prevailing party in such action sh all be entitl ed to reasona ble attorney’s fee s, expert fees, costs a nd necessar y d isbursements i ncurred in that action or proceeding, in addition to such other relief as m ay be sought and aw arded. T he venue f or any litigat i on sh all be County of Los Angel es, Ca lifornia. T he Parti es agr ee that t he covenants contained in this Section shall survive the expiration or termination of this Agreement.

SECTION 19. ATTORN EY’S FEES AND COSTS.

If litigation is reasona bly required to enforce or i nterpret t he provisions of thi s Agreement, t he prevailing pa rty in such litigation sh all be entitl ed to an a ward of reasonable attorney's fees and costs in additi on to any other relief to which it m ay be entitled.

SECTION 20. WA RRANTIES.

Each of the parties represents and warrants to one another as follows:

a. It has received independent legal advice from its attorneys with respect to the advisability of entering into and executing this Agreement;

b. In executing this Agreement, it has carefully read this Agreement, knows the contents thereof, and ha s relied solely on the statemen ts expressly set forth herein and has placed no reliance whatsoever on any statement, representation, or promise of any other party, or any other person or entity, not expressly set forth herein, nor upon the failure of any other party or any other person or entity to make any statement, representation or disclosure of any matter whatsoever; and

c. It is agreed that each party has the full right and authority t o enter into this Agreement, and that the person executing this Agreement on behalf of either party has the full right and authority to fully commit and bind such party to the provisions of this Agreement.

SECTION 21. MI SCELLANEOUS.

a. The descriptive paragraph headings of this Agreement are included for purposes of convenience only and shall not control or affect the construction of interpretation of any of its provisions.

b. Whenever the context hereof shall so require, the singular shall include the plural, the male gender shall include the female gender, and the neuter and vice versa.

c. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein.

d. The representations and warranties made by the parties to this Agreement shall survive the consummation of the transaction herein described.

PROFESSIONAL SERVICES AGREEMENT NO. 4056

e. This Agreement may be signed in any one or more counterparts all of which taken together shall be but one and the same Agreement. Any signed copy of this Agreement or of any other document or agreement referred to herein, or copy or counterpart thereof, delivered by facsimile transmission, shall for all purposes be treated as if it were delivered containing an original manual signature of the party whose signature appears in the facsimile and shall be binding upon such party in the same manner as though an originally signed copy had been delivered.

f. Each of the parties acknowledges that it has been represented by independent counsel of its own choosing, or if it has not been so represented, it has been admonished to obtain independent counsel and has freely and voluntarily waived and relinquished the right to counsel. Each party who has not obtained independent counsel acknowledges that the failure to have independent legal counsel will not excuse such party’s failure to perform under this Agreement or any agreement referred to in this Agreement.

SECTION 22. NOTICE.

All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered via e- mail (an “Electronic Notice” as further defined below), persona lly or on the second (2nd) business da y af ter t he deposit thereof in t he Unit ed States ma il, postag e prepaid, register ed or c ertified, addr essed as h ereinafter pro vided. All noti ces, demands, requests, or approvals hereund er sh all be giv en t o the fo llowing addresses or such other addresses as the Parties may designate by written notice:

If to CITY: City of Montebello
Attn: René Bobadilla, City Manager
1600 West Beverly Boulevard
Montebello, CA 90640
(323) 887-1200

With a copy to: City of Montebello – Montebello Bus Lines Attn: Adrianna Kendricks, Director of Transportation
400 South Taylor Avenue
Montebello, CA 90640
(323) 558 -1625 x 101
(323) 887- 4643 (Fax)
[email protected]

If to Contractor: Orange Coast Petroleum Equipment, Inc.

Attn: John Miller, Owner
1015 N.Park Street
Orange, CA 92867
(714) 744 - 4049
[email protected]

An electronic communication (“ Electronic Notice ”) shall be deemed written notice for purposes of this section if sent to the electronic mail address specified above. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form.

PROFESSIONAL SERVICES AGREEMENT NO. 4056

SECTION 23. NON-DISCRIMINATION AND EQUAL OPPORTUNITY
EMPLOYER.

In the performan ce of this A greement, the CONTRACTOR shall no t discriminate against any employee, sub-contractor, or app licant f or employment because o f race, color, creed, re ligion, sex, marital st atus, national or igin, ancestry, age , p hysical or ment al h andicap, ment al co ndition or sexua l orientation. The CONTRACTOR will ta ke affi rmative action t o en sure that sub- contractor an d a pplicants are employed, a nd that employees are treated d uring employment, without regard to their race, color, creed, religion, sex, marital status, national ori gin, a ncestry, age, physi cal or ment al h andicap, medica l co ndition or sexual orientation.

SECTION 24. CONFLICT OF INTEREST.

The CONTRACTOR covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be perfo rmed by the CONTRACTOR under this A greement, or which wo uld conflict in an y manner wit h the performan ce of its services h ereunder. The CONTRACTOR fu rther co venants th at, in perf ormance of this A greement, no person havi ng an y such i nterest sh all be employed by it. Fu rthermore, the CONTRACTOR sh all a void t he appe arance of havi ng an y interest that wo uld conflict in an y manner with th e perfo rmance of its services pursuan t to this Agreement.

The CONTRACTOR covenants not to give or r eceive any compensation, monetary or otherwise, to or from the ultim ate vendor(s) of services to the CITY as a r esult of t he performance of this Agreeme nt, or t he servi ces that m ay be procured by t he CIT Y as a r esult of t he recommendations mad e by the CONTRACTOR. The CONTRACTOR's co venant unde r this secti on sh all sur vive the termination of this Agreement.

SECTION 25. ENTIRE AGREEMENT.

This A g reeme nt contai ns t he entir e understandi ng between t he CITY a nd the CONTRACTOR. Any prior agreements, promises, negotiations or represent ations not expressly set forth herein are of no force or effect. Subsequent modifications to this Agreement shall be effective only if in writi ng and signed by each party. If an y term, conditi on, or covenant of this A greement is h eld by a court of competent jurisdiction to be inva lid, voi d, or unenforceabl e, t he remaini ng provisions of thi s Agreement shall be valid and binding.

[S
IGNATURE PAGE TO FOLLOW]

PROFESSIONAL SERVICES AGREEMENT NO. 4056

IN WITNESS WHE REOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above.

(“CITY”) (“CONTRACTOR”)

CITY OF MONTEBELLO ORANGE COAST PETROLEUM
EQUIPMENT, INC.

René Bobadilla, City Manager John Miller, Owner

Date: ___________ Date: ____________

ATTEST:

Christopher Jimenez, City Clerk

APPROVED AS TO FORM:

Arnold M. Alvarez-Glasman, City Attorney

EXHIBITS
• Exhibit A – RFP No. 22-4

• Exhibit B – Contractor’s Scope Of Services

• Exhibit C – Terms for Compliance with California Labor Law Requirements

EXHIBIT “A”
RFP NO. 22-4

City of Montebello
Request for Proposals (RFP) No. 23-2
Maintenance Hose Reels Replacement
Date Issued: September 29, 2022
Proposals Due: October 27, 2022

ONLINE PROPOSAL SUBMITTAL ONLY THROUGH PLANET BIDS
NOTE: Updates, changes or addendums to the RFP are posted at:
https://pbsystem.planetbids.com/portal/33072/portal-home

RFP No. 23-2
City of Montebello 2

TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................................................... 5 COVER LETTER ....................................................................................................................................................... 6 TIMETABLE & SCHEDULE OF EVENTS ...................................................................................................................... 7 SECTION 1 – INSTRUCTIONS TO PROPOSERS .......................................................................................................... 8 PROPOSAL FORMAT AND SUBMITTAL ....................................................................................................................... 8 Organizational Information Required From the Contractor .................................................................................. 9 EXAMINATION OF PROPOSAL DOCUMENTS .............................................................................................................. 9 SECTION 2 – GENERAL TERMS AND CONDITIONS ................................................................................................. 10 ADDENDA ................................................................................................................................................................ 10 CLARIFICATIONS ...................................................................................................................................................... 10 DISCREPANCIES AND MISUNDERSTANDINGS .......................................................................................................... 10 WITHDRAWAL OF PROPOSALS ................................................................................................................................ 11 REFERENCES ............................................................................................................................................................ 11 PROPOSAL SIGNATURES .......................................................................................................................................... 11 PRE-CONTRACTUAL EXPENSES ................................................................................................................................ 11 PERFORMANCE GUARANTEE ................................................................................................................................... 11 CITY OF MONTEBELLO RIGHTS ................................................................................................................................. 12 STATE CREDENTIALS AND TAXES ............................................................................................................................. 12 RESPONSIBILITY FOR COMPLIANCE WITH LEGAL REQUIREMENTS .......................................................................... 12 CONFIDENTIALITY AND PUBLIC RECORD ................................................................................................................. 12 JOINT OFFERS .......................................................................................................................................................... 12 COMPANY PERSONNEL ............................................................................................................................................ 13 SINGLE PROPOSAL RESPONSE .................................................................................................................................. 13 PROTEST PROCEDURES ............................................................................................................................................ 13 INCORPORATION OF PROPOSAL INTO AGREEMENT ................................................................................................ 13 TIME OF COMPLETION ............................................................................................................................................. 13 PAYMENT ................................................................................................................................................................. 14 CONTRACT DOCUMENTS: ORAL CHANGES / CONTRACT TERMINATION ................................................................ 14 SCOPE OF CONTRACT ............................................................................................................................................... 14 PERFORMANCE OF WORK ....................................................................................................................................... 14 ACCESS TO SITE ........................................................................................................................................................ 14 PREPARATION .......................................................................................................................................................... 15 OWNERSHIP OF DATA .............................................................................................................................................. 15 AWARD OF CONTRACT ............................................................................................................................................ 15

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City of Montebello 3
PROPOSALS EVALUATION ........................................................................................................................................ 16 POINT OF CONTACT ................................................................................................................................................. 17 EVALUATION CRITERIA ............................................................................................................................................ 18 SECTION 3 – QUALIFICATIONS.............................................................................................................................. 19 MINIMUM NECESSARY QUALIFICATIONS ................................................................................................................ 19 SECTION 4 – SCOPE OF WORK .............................................................................................................................. 19 PROJECT OVERVIEW ................................................................................................................................................ 19 REELS SPECIFICATION .............................................................................................................................................. 20 TESTING ................................................................................................................................................................... 20 WARRANTY .............................................................................................................................................................. 20 SECTION 5 – FORM OF CONTRACT (SAMPLE) ....................................................................................................... 21 SECTION 6 – EXHIBITS .......................................................................................................................................... 32 EXHIBIT A ................................................................................................................................................................. 32 Proposal Submission Check List ........................................................................................................................... 32 EXHIBIT B ................................................................................................................................................................. 33 Letter of Transmittal............................................................................................................................................ 33 EXHIBIT C ................................................................................................................................................................. 35 Certificates, Licenses, Permits, and Registrations ............................................................................................... 35 EXHIBIT D ................................................................................................................................................................. 36 Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution ......................... 36 EXHIBIT E.................................................................................................................................................................. 37 References ........................................................................................................................................................... 37 EXHIBIT F .................................................................................................................................................................. 38 Insurance ............................................................................................................................................................. 38 EXHIBIT G ................................................................................................................................................................. 39 Cost Proposal Sheet ............................................................................................................................................. 39 EXHIBIT H ................................................................................................................................................................. 40 Statement of Disadvantaged Business Enterprise (DBE) Participation ............................................................... 40 EXHIBIT I .................................................................................................................................................................. 41 Bidder’s List of Subcontractor (DBE and Non-DBE) ............................................................................................. 41 EXHIBIT J .................................................................................................................................................................. 43 Debarment and Suspension Certification ............................................................................................................ 43 EXHIBIT K ................................................................................................................................................................. 44 Performance Bond ............................................................................................................................................... 44

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City of Montebello 4

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City of Montebello 5

INTRODUCTION
The City of Montebello (“City”) is soliciting proposals from highly-qualified contractors to remove, dispose, and replace existing hose reels, as well as associated components (e.g., meters, water bibs, grease guns, jumper hoses, etc.), with high performance and dual pedestal framed hose reels designed for heavy -duty jobs that require high-frequency use, extra strength, and durability. The Contractor will conduct an assessment of the existing hose reel system located at the Transportation Department’s (“MBL”) facility.

As the fourth-largest municipal bus system in Los Angeles County, MBL prou dly serves 4.5 million passengers a year throughout the communities of Alhambra, Bell Gardens, San Gabriel, Boyle Heights, Commerce, Downtown Los Angeles, East Los Angeles, La Mirada, Montebello, Monterey Park, Pico Rivera, Rosemead, South Gate, and Whitti er. In order to provide reliable and efficient public transportation services to the residents of Montebello and neighboring communities, MBL relies on the Maintenance Division to have state- of-the-art equipment required to maintain MBL’s fleet.

The awarde d Contractor (“Contractor”) will possess the necessary aptitude and ex perience required to complete the project objective and install the dual pedestal framed hose reels.

The City reserves the right to reject any or all proposals, waive information or irr egularities to the extent permitted by law in any proposal received, and be the sole judge of the merits of the respective proposals received.

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City of Montebello 6

COVER LETTER
DATE: September 29th, 2022
ATTENTION: PROSPECTIVE PROPOSERS
SUBJECT: REQUEST FOR PROPOSAL (RFP) NO. 23-2
TITLE: CITY OF MONTEBELLO and MONTEBELLO BUS LINES

MAINTENANCE HOSE REELS REPLACEMENT
The City of Montebello (“City”), Montebello Bus Lines (“MBL”), is soliciting proposals (“Proposals”) from highly- qualified contractors (“Contractors”) to provide the technical expertise required for the removal of existing hose reels, as well as associated components (e.g., meters, water bibs, grease guns, jumper hoses, etc.) at the City’s transportation facility. The Contractor will replace the existing hose reels with high performance and dual pedestal framed hose reels designed for heavy-duty jobs that require high-frequency use, extra strength, and durability.

A Pre-Proposal Meeting will be held on Thursday, October 6, 2022 . The meetin g will convene at 10:00 AM Pacific Standard Time in the Transportation Facility located at 400 South Taylor Avenue, Montebello. A facility walk-thru will follow the meeting. Proposers must abide by all Federal, State, local, and City coronavirus (COVID-19) protective measures (e.g., face coverings) at all times while onsite.

It is highly recommended that all potential proposers (“Proposers”) attend this important meeting. All correspondence, communications, and contact concerning any aspect of this solicitation or offers shall be only with the following person [or his designated representative if applicable] (hereinafter, the “City’s Point of Contact”).

Name: Rohan Anderson
Title: Senior Procurement Analyst
Address: City of Montebello, Transportation Facility
400 S. Taylor Ave.,
Montebello, CA 90640
Telephone: (323) 558-1625 ext.104
E-mail: [email protected]

Only substantive inquiries will receive a response. All substantive questions submitted in writing as outlined below will be responded to according to the guidelines contained herein. Responses will be in writing and will be provided to all prospective Proposers and placed on the City’s website. Responses to questions or comments regarding this RFP provided by any other department, or employee, other than the contact person set forth above shall not be considered valid and the City will not be bound by any such comments or responses.

Inquiries received via telephone or orally in person will not receive a response.

Proposals must be received by Thursday, October 27, 2022, 3:00 PM Pacific Standard Time and submitted in accordance with the instructions contained in this RFP. No exceptions will be granted regardless of reason or circumstances.

All Proposals must contain an original signature by an authorized officer of the company.

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City of Montebello 7
The successful Proposer will be required to comply with all applicable Equal Opportunity Laws and Regulations.

The City hereby notifies all prospective Proposers that the City will require each Proposer affirmatively demonstrate that Disadvantaged Business Enterprises are afforded full opportunity to participate in the performance of co ntracts and subcontracts financed in part or whole under this RFP, and will not be discriminated against on the grounds of race, color, gender, age, or national origin in consideration for an award.

The City reserves the right to reject any or all proposals, to accept all or any part of any proposal, to waive any informality or minor irregularities in any proposal received to the extent permitted by law and where such action best serves the interest of the City, and to be the sole judge of the merits of the respective proposal received.

The City is committed to ensuring that no person is excluded from participation in, or denied the benefits of its programs and/or services based on race, color, or national origin per FTA Circular 4704.1 and Title VI of the Civil Rights Act of 1964, as amended ("Title VI"). In addition to Title VI, NTS also prohibits discrimination based on sex, age, or disability.

Any person who believes he or she has been subjected to discrimination under Title VI can file a complaint with MBL. For more information on MBL’s Civil Rights Program, and the procedures to file a complaint, contact:

Name: Adrianna Kendricks
Title: Acting Director of Transportation
Address: City of Montebello, Transportation Facility
400 S. Taylor Ave.,
Montebello, CA 90640
Telephone: (323) 558-1625
Fax Number: (323) 887-4643
E-mail: RideMBL.com

You may also contact the Federal Coordination and Compliance Office, Civil Rights Division at the Title VI Hotline: 888-TITLE-06 (888-848-5306) or send a letter to:

U.S. Department of Justice
Civil Rights Division
Federal Coordination and Compliance Section, NWB
950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
More information on Title VI is available from the Justice Department online at www.justice.gov

TIMETABLE & SCHEDULE OF EVENTS
Scheduled Tasks Scheduled Date
Issuance of RFP Thursday September 29, 2022
Pre-Proposal Meeting Thursday October 6, 2022 at 10:00 AM PST Deadline to Submit Questions Tuesday October 13, 2022 at 3:00 PM PST Responses to Questions Provided Tuesday October 18, 2022 Deadline to Submit Proposals Thursday October 27, 2022 at 3:00 PM PST Presentations & Intent to Award Week of November 10, 2022

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City of Montebello 8
SECTION 1 – INSTRUCTIONS TO PROPOSERS

PROPOSAL FORMAT AND SUBMITTAL
Proposals can be submitted via the PlanetBids.com Portal, accesse d through the City ’s official website at https://www.cityofmontebello.com/rfp-bids/bid-opportunities.html.

Deadline to Submit Proposals Thursday October 27, 2022, at 3:00 PM PST

All proposals must contain an original signature by an authorized officer of the company. Proposals received after the date and time listed above will not be considered.

The following proposal format with the required contents has been developed to enable a consistent proposal evaluation. Failure to submit the requested documents may render the proposal non-responsive and rejected.

Proposals shall not include any unnecessarily elaborate or promotional material. Proposals may not be modified or corrected after being opened unless an addendum is issued requesting resubmissions. Proposals will not be valid until all information has been verified and Proposers references have been checked. All proposals shall be accompanied by a completed and signed letter of transmittal provided as a part of this RFP.

All requests for exceptions or deviations as a result of this RFP shall be clearly identifiable by a separate section of the Proposer’s submitted proposal for review by the City. It shall be the right of the City to accept or reject any portion of the submitted requests.

Proposals shall be submitted in accordance with the form prescribed herein. Failure to respond in this manner may render the p roposal non-responsive. Unauthorized conditions, limitation s, or provisions attached to a proposal will render the p roposal non -conforming and non -responsive and may caus e its rejection. The completed p roposal shall be without interlineations, alterations, or erasures. Propos er submitting basic conforming p roposals may choose to submit alternate p roposals as complete and separate offers, if the alternate proposal offers technical or other improvements or modifications, which are to the overall benefit of the City. Any and all alternate proposals must be submitted in writing and included with the original proposal, conforming to the requirements as stated herein. No verbal modifications will be accepted.

Proposals shall be typed single -spaced and sub mitted on 8 ½ by 11 inch paper in the following format and include the sections specified below:
 Proposal Submission Check List (EXHIBIT A)
 Proposal and Organizational Information Required From the Contractor (SECTION 1)  Letter of Transmittal (EXHIBIT B)
 Certificates, Licenses, Permits, and Registrations (EXHIBIT C)  Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution ( EXHIBIT D)  References ( EXHIBIT E)
 Project Portfolio References ( SECTION 3)
 Insurance (SECTION F)
 Cost Proposal (EXHIBIT G)
 Statement of Disadvantaged Business Enterprise Participation ( EXHIBIT H)  Bidder’s List of Subcontractor (DBE and Non-DBE) (EXHIBIT I)  Debarment and Suspension Certification (EXHIBIT J)
 Performance Bond (EXHIBIT K)

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City of Montebello 9

ORGANIZATIONAL INFORMATION REQUIRED FROM THE CONTRACTOR A. Cover Letter
 Introduction of firm signed by an authorized Principal of the firm.  Name, address, and phone number of firm.
 Years in business providing services described herein.  Brief statement of understanding of the services to be performed.  Include the name an d signature of binding official authorized to answer ques tions regarding the firm’s proposal.

B. Qualifications and Experience of Firm and/or Team
 Describe other contracts (at least three) similar in scope, size or discipline to the required services described herein, performed or undertaken within the past five years.  Describe projects that sub -contractors have performed with a similar scope, size, or discipline within the past five years.
 Provide references, including name, address, email address, and telephone number of a contact person for each project identified and described.
 Provide and identify the firm’s financial condition documentation  Indicate commencement dates, duration, and type of operation.  Provide a list of all public transportation clients in California.

C. Project Manager(s) and Key Project Personnel
 Clearly identify the professional staff person(s) who would be assigned as Project Manager(s) and provide resumes. The resume should indicate the abilities, qualifications, education, and experience of these individuals.

D. Work Plan and Scope of Work (SOW)
 Include an SOW that at least meets the minimum requirements of the RFP.  Acknowledge any requirements of the scope that cannot be met and are not part of the supplier’s proposal.
 Include a detailed implementation plan.

E. Project Schedule
 Account for each activity in the SOW and bidder’s approach to work.  Define a realistic timeline, measured in days, to complete SOW after award.

F. Subcontractors and Work by Others
 Identify any subcontractor to serve on the project with their qualifications.  Describe all work needed to complete the SOW not included in the proposal.  Include work to be completed by MBL with duration estimates.  Any work not included in “Work Done by Others” will be considered work the bidder will do.

G. Contract
 The City has included its standard co ntract in Section 5. Identify all exceptions to the agreement that would prevent your Firm from executing it. The City will consider and discuss exceptions during negotiations.

H. Completeness of Proposal Statement
 Provide a table of contents. Respond to all items listed in the submission requirements section and provide all other documents requested.

EXAMINATION OF PROPOSAL DOCUMENTS
By submitting a proposal, Proposer represents that: (1) Proposer has thoroughly examined and become familiar with the SOW required under this RFP, (2) Proposer comprehends all conditions that may impact the proposal, (3) Proposer has reviewed all addenda, and (3) Proposer is capable of providing the equipment, goods and services necessary to perform the SOW and/or meet the specifications outlined in this RFP, in a manner that

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City of Montebello 10
meets the City’s objectives. Failure to examine the documents and inform itself shall be at the Proposers’ own risk. A Proposer shall have no claim against the City based upon ignorance of or misunderstanding of the RFP documents. Once the award has been made, failure of a Proposer to have read all of the conditions, instructions and the agreement shall not be cause to alter any term of the agreement nor shall such failure provi de valid grounds for a Proposer to withdraw its proposal or to seek additional compensation.

SECTION 2 – GENERAL TERMS AND CONDITIONS

ADDENDA
Any changes made by the City to the requirements in this RFP will be made by written addenda. Any written addenda issued to this RFP shall be incorporated into the terms and conditions of any resulting Agreement.

The City will not be bound by any modifications to or deviations from the requirements set forth in this RFP as the result of oral instructions. The City reserves the right to revise or withdraw this RFP at any time and for any reason.

CLARIFICATIONS
Should a Proposer require clarifications of this RFP, the Proposer shall notify the contact person identified in this RFP in writing. Should the City, in its sole discretion, determine that the point in question is not clearly and fully set forth; the City will issue a written addendum clarifying the matter. The said addendum shall be posted on the PlanetBids.com web page.

All questions, clarifications, or comments must be submitted to or no later than the time and date listed in the TIMETABLE & SCHEDULE OF EVENTS of this RFP. No questions will be answered individually by the City.

Requests for clarification, questions, and comments must be clearly posted on the PlanetBids Q & A section.

The City is not responsible for failure to respond to a request that has not been submitted in accordance with this section.

Responses by the City to the clarifications, comments , and questions will be communicated via PlanetBids.

Every attempt will be made to provide responses to all Proposers in accordance with the procurement schedule for this RFP. Inquiries received after the deadline will not be accepted and will be returned to the sender without a response.

Requests for clarifications and questions should be formatted in the following manner:

1. Section

2. Paragraph number

3. Page number

4. Text of passage being questioned

5. Question

DISCREPANCIES AND MISUNDERSTANDINGS
Proposing Companies must satisfy themselves by personal examination of any worksites, drawings, SOW and by any other means as they may believe necessary, as to the actual physical conditions, requirements , and difficulties under which the work must be performed. No Proposing Company shall at any time after submission of the p roposal, make any claim or a ssertion that there was any misunderstanding or lack of information regarding the nature or amount of work necessary for the satisfactory completion of the job. Any errors, omissions, or discrepancies found in any plans, specifications, or other documents provided, shall be called to the attention of the Buyer and clarified prior to the submission of proposals.

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City of Montebello 11

WITHDRAWAL OF PROPOSALS
Proposers may withdraw their proposals in writing, provided that such requests are received by the City prior to the scheduled deadline for proposal submission or within six months following the scheduled deadline for proposal submission when no contract has been awarded.

REFERENCES
All reference information requested in this RFP and specified in the form included in this RFP must be submitted with the proposal. Refer to Exhibit E.

At the discretion of the Evaluation Committee, the City may elect to perform site visits at the Proposer’s customer locations. These optional site visits will be in addit ion to any presentations and/or technical demonstrations. Some or all RFP Evaluation Committee members would travel, at City expense, to sites at which finalist Proposers are performing like services. The purpose of such visits shall be to provide the evaluation team with an increased understanding of the process and assess the Proposer’s implementation and performance.

PROPOSAL SIGNATURES
If an individual makes the p roposal it shall be signed and the full name and address of the Proposer shall be given.

If a partnership makes the p roposal, it shall be signed with the partnership name, by a member of the partnership who shall sign by name and the name and address of each partner shall be given.

If a corporation prepares the p roposal, the name of the corporat ion shall be provided and signed by two (2) duly authorized Officers and, if available, stamped with the corporate seal, and the names and titles of all officers of the corporation shall be given. If a corporation provides a certified letter stating that o ne (1) duly authorized officer's signature is binding for the corporation, this will suffice to omit the secon d signature requirement in the proposal. A certified letter is to be included in the proposal accompanied with the Letter of Transmittal.

PRE-CONTRACTUAL EXPENSES
The City will be under no obligation for payment of pre -contractual expenses. Pre-contractual expenses are defined as expenses incurred by Proposer in:
 Preparing the proposal in response to this request.
 Submitting that proposal to the City.
 Negotiating with the City any matter related to this proposal, and/or  Any other expenses incurred by the Proposer prior to date of award.

PERFORMANCE GUARANTEE
A Performance Guarantee in the amount of 100% of the Contract value is required by the City to ensure faithful performance of the Contract. The performance bond shall be provided by the Contractor and shall remain in full force for the term of the Agreement.

The successful Contractor shall certify that it will provide the requisite Performance Guarantee to the City within ten (10) business days from Contract execution (Exhibit K). The City requires all performance bonds to be provided by a fully qualified surety company acceptable to the City and listed as a company currently authorized under 31 C.F.R. part 22 as possessing a Certificate of Authority as described hereunder. The City may require additional performance bond pro tection when the contract price is increased. The increase in

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City of Montebello 12
protection shall generally equal 100 percent of the increase in the contract price. The City may secure additional protection by directing the Contractor to increase the amount of the existing b ond or to obtain an additional bond.

CITY OF MONTEBELLO RIGHTS
In its discretion, the City reserves the right to:

1. Reject any and/or all proposals for no reason or any reason including but not limited to the following:
a. The p roposal is incomplete, non -responsive, obscure, irregular , or lack s necessary detail and specificity.
b. The Proposer, in the sole judgment of the City, lacks the qualifications, experience, and/or responsibility necessary to provide the services.
c. The Proposer failed or neglected to complete and submit any information within the time specified by the City, and as may be otherwise required herein.

2. Reject any p roposal that, in the opinion of the City , is so unbalanced in comparison to other p roposals received and/or to the City’s internal estimates that it does not accurately reflect the cost to perform.

3. Accept all or any part of a proposal.

4. Cancel the entire RFP;

5. Issue subsequent RFPs;

6. Waive any errors or informalities in any proposal, to the extent permitted by law.

STATE CREDENTIALS AND TAXES
The Proposer shall be appropriately licensed in accordance with the laws of the State of California for the work to be performed. The cost for any required licenses and/or permits shall be the responsibility of the successful Proposer. The successful Proposer is liable for any and all taxes due as a result of the contract.

RESPONSIBILITY FOR COMPLIANCE WITH LEGAL REQUIREMENTS
The Proposer’s products, services, and facilities shall be in full compliance with all applicable Federal, State , and local regulations, standards, and ordinances, regardless of whether or not they are referred to in the RFP.

CONFIDENTIALITY AND PUBLIC RECORD
All Proposers are hereby put on notice that each proposal received shall become the exclusive property of the City and, unless the City’s prior written agreement to maintain all or part of a proposal confidential as a trade secret is first obtained, each proposal shall be subject to disclosure pursuant to the California Public Records Act and/or the Federal Freedom of Information A ct. The City shall not in any way be liable or responsible for the disclosure of any proposals or portions thereof absent such agreement; nor shall such agreement preclude the City from disclosing any proposal or portion thereof where such disclosure is required by law.

JOINT OFFERS
Where two or more Proposers desire to submit in response to this RFP, they shall do so on a prime -sub Contractor basis rather than as a joint venture. The City intends to contract with a single firm and not with multiple firms doing business as a joint venture. Any proposal submitted on behalf of any form of joint venture or partnership between two (2) existing Proposers may be considered collusive and may be rejected as non- responsive.

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COMPANY PERSONNEL
It shall be the burden of the successful Proposer to ensure all personnel possesses qualifications and/or experience. All personnel required in performing the services herein shall be secured at the expense of the successful Proposer. Personnel shall not be employees of or have an y contractual relationship with the City.

Successful Proposer’s personnel shall conduct themselves in a professional manner to all City employees at all times. Rude or discourteous behavior by the successful Proposer will not be tolerated and the offense can be justification for termination of contract. All sub -Contractors of successful Proposer shall abide by all the requirements set forth in this section.

SINGLE PROPOSAL RESPONSE
If only one proposal is received in response to this RFP, a detailed cost/price proposal may be requested of the Proposer. A cost or cost and price analysis and evaluation and/or audit of the cost may be performed in order to determine if the price is fair and reasonable. If the City determines a cost analysis is required, Proposer must be prepared to provide, upon request, cost summaries of estimated costs (i.e. labor, equipment, supplies, overhead costs, etc.) and documentation supporting all cost elements.

PROTEST PROCEDURES
All protests must be filed in accordance with the following:

1. The protest must be in writing and identify the solicitation (RFP) number.

2. The protest must be submitted by some return receipt method or guarantee of delivery that insures that the protest was received in a timely manner. The City is not respon sible for lost or delayed deliverables.

3. The party’s standing to protest must be identified.

4. Identification of the specific provision, law, regulation, specification, procedure, or policy violated.

5. A statement of the relief requested.

Protests related to the content of the RFP shall be received no later t han ten (10) days prior to the p roposal due date; or within five (5) days after proposal opening. If the Protest does not comply with the preceding requirements it may not be evaluated and may be returned to the Protestor.

All protests shall be submitted to the contact person identified in this solicitation. If the solicitation is funded with Federal Transit Administration (FTA) monies, a protest may be filed with the FTA. However, the FTA only accepts protests alleging that a grantee failed to have written protest procedures or did not comply with those procedures or protests that involve a conflict of interest or fraud.

INCORPORATION OF PROPOSAL INTO AGREEMENT
This RFP and the Proposer’s response, including all promises, warranties, commitments, and representations made in the successful proposal, shall be binding and incorporated by reference in the City’s contract with the successful Proposer.

TIME OF COMPLETION
The Contract time shall commence from the dat e on the Notice to Proceed (NTP) as authorized in writing by the City. The services shall be completed within the time period specified in the Request for Proposal. In case the services under the terms of these provisions and related professional contract shall be necessarily delayed because of strikes, injunctions, government controls, or by reasons of any cause or circumstances beyond the control of the CONTRACTOR, the time of completion shall be extended by a number of days to be determined in each instance by mutual agreement between CONTRACTOR and MBL.

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PAYMENT
A separate invoice, referencing the respective purchase order number, shall be issued in duplicate for each invoice shown in the payment schedule, and addressed to:

City of Montebello
Attn: Accounts Payable
1600 West Beverly Boulevard
Montebello, California, 90640
Payment will be made within thirty (30) days after acceptance and approval of the invoice.

Payment Schedule: Monthly; provide one (1) invoice monthly.

CONTRACT DOCUMENTS: ORAL CHANGES / CONTRACT TERMINATION Oral Changes : Oral changes and oral change orders are not permitted. All proposed changes must be submitted in writing to, and approved by, MBL prior to becoming a contract modification.

Contract Termination: M BL may terminate any resulting contract for convenience at any time by giving the successful contractor (hereinafter, the “Contractor” or “ CONTRACTOR”) written notice thereof. Upon termination, MBL shall pay the CONTRACTOR allowable cost incurred to date of termination, and those costs deemed reasonably necessary by MBL to effect such termination, determined in accordance with Part 1-8.705- 1 of the Federal Procurement Regulations (41CFR 1 -8) or other applicable portion(s) of said Regulations. In addition, MBL shall pay th e CONTRACTOR a percentage of the project, which relates to c ontract work accomplished to date of termination. The effective date of termination shall be the date of Notice of Termination.

In the event the CONTRACTOR breaches the terms or violates the conditions of the c ontract, and does not within ten days, thereafter, cure such breach of violation, MBL may immediately terminate the contract for default. CONTRACTOR shall be liable for any and all costs incurred by MBL as a result of such default.

SCOPE OF CONTRACT
CONTRACTOR shall provide all services necessary as per the SOW described in this Request for Proposal.

PERFORMANCE OF WORK
It is the intent of these specifications to provide only services of the highest quality. The cost to be quoted and submitted shall include all items of service and any other costs necessary to fully complete the work pursuant to the provisions. It is the aim of these specifications that the CONTRACTOR provides complete services of the type prescribed. Any items omitted from such specifications which are clearly necessary for the completion of such services shall be considered a portion of such services, although not directly specified or called for in these specifications. No advantage shall be taken by the CONTRACTOR in the omission of any detail which goes to make the services complete, even though such detail is not mentioned in these specifications.

ACCESS TO SITE
The Contractor shall have limi ted use of the p roject site for installation operations during the installation period. The use of the site will be limited to the work area. The Contractor shall not disturb other areas of the site without the City’s approval.

Driveways, Walkways, and Entrances: Keep entry driveways and personnel entrances serving premises clear and available to the City and emergency vehicles at all times. Maintain access to existing walkways, corridors,

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City of Montebello 15
and other adjacent occupied or used facilities. Do not close or obstruct walkways, corridors, or other occupied or used facilities without written permission from the City’s Project Manager (PM) or their designee.

MBL will occupy the facility during the entire installation period. Cooperate with the City’s PM or their designee during installation operations to minimize interference with MBL’s business operations.

PREPARATION
Provide temporary barricades and other protection required to prevent injury to people and damage to adjacent buildings and facilities to remain. Provide and maintain shoring, bracing, and structural supports as required to preserve stability and prevent movement, settlement, or collapse of construction and finishes to remain.
 Provide protection to ensure the safe passage of people around selective demolition areas and to and from occupied portions of the building.
 Protect walls, ceilings, floors, and other existing finish work that are to remain or that are exposed during selective demolition operations.

OWNERSHIP OF DATA
Any and all forms of data and other information generated by or used by the Contractor is the property of the City and shall not be used by the Contractor for any purpose whatsoever except to perform the requested services by the City.

AWARD OF CONTRACT
The agreement (“Agreement”) resulting from this RFP will be awarded to the responsive and responsibl e Proposer whose proposal, conforming to the requirements of the RFP, is determined to be the most advantageous (“Best Value” as described in the Federal Transit Administration Circular 4220.1F) to the City, based on the Evaluation Criteria. No agreement s hall exist until the City C ouncil or the City Manager has awarded the Agreement and it has been mutually executed. The City reserves the right to:
(a) Accept all or any part of a proposal;
(b) Reject any or all proposals for any reason;
(c) Waive any informality or minor errors to the extent permitted by law; (d) Award the Agreement as the interest of the City may require; (e) Cancel the entire RFP; or
(f) Issue subsequent RFP’s.

An Evaluation Committee comprised of MBL staff in accordance with the Proposal Evaluation Criteria set forth in Evaluation Criteria section of this RFP, will evaluate all the proposals. During the evaluation period, the City may interview some or all the proposing firms. Proposers should be aware; however, that award may be made without interviews or further discussions.

The City may negotiate contract terms with the selected Proposer prior to award, and expressly reserves the right to negotiate with several Proposers simultaneously and, thereafter, to award a contract to the Proposer offering the most favorable terms to the City. However, negotiations may or may not be conducted with Proposers; therefore, the proposal submitted should contain the most favorable terms and conditions, since the selection and award may be made without discussion with any Proposer.

No agreement shall exist until the City Council or City Manager has awarded the Agreement and it has been mutually executed. The City reserves the right to reject any and all p roposals for any reason, to waive any informality or minor errors as determined by the City in any proposal and to award the Agreement as the best

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City of Montebello 16
interests of the City may require. The award, if any, may be made by the City within ninety (90) calendar days after the opening of the proposals.

PROPOSALS EVALUATION
Selection criteria include such price and qualitative considerations as qualifications and experiences of Contractor, subcontractor, and proposed project personnel; technical approach and design; management plan (e.g., personnel, workload, timeline, etc.); and past performance record. The award selection is based upon consideration of a combination of technical and price factors to determine the offer deemed most advantageous and of the greatest value to the City.

An Evaluation Committee comprised of City staff will evaluate all proposals in accordance with the proposal Evaluation Criteria set forth in this RFP. Interviews with the highest-ranked firms may or may not be requested by the City. Selection may be made strictly from the information provided in the Proposal. However, the City reserves the right to conduct interviews with and request presentations from any, all, or some respondents.

On the completion of the initial Pass/Fail review, the committee will ev aluate proposals using the two -step process. Technical proposals will be reviewed and scored first without consideration for price. The committee will then open the cost and price proposals and evaluate and score them accordingly. During the technical evaluation, the committee, at its sole discretion may contact any or all the Proposers with specific questions or requests for clarification. After both the technical and cost/price proposals have been evaluated and scored, the committee will arrive at a “comprehensive proposal score” for each proposal. A list of top-ranked proposals within a competitive range will be developed based upon the total comprehensive scores provided by committee members. At this time, the committee may decide that the evaluation pro cess is complete and submit a final recommendation to the Director of Transportation.

If the committee determined it to be necessary, it may then conduct interviews and negotiations with short - listed Proposers. As no other interview dates are available, Proposers who are unable to attend their interview as scheduled may be eliminated from further participation. The interview may consist of a short presentation by the Proposer after which MBL may ask questions and/or request clarification related to any elem ent of a proposal and its qualifications. MBL may also enter negotiations with the Proposer.

At the conclusion of interviews and negotiations, the evaluation committee may choose to proceed using one of the following processes:
 The committee may find it ne cessary to re-score the proposals in light of information gained during the interviews and negotiations process. The proposals will be scored in the same manner as the original proposals.
 The committee may ask the Proposers to consider the dialog of negotiations and revise their proposals.

A deadline will be set for submission of the revised proposals. If a Proposer is unable to meet the deadline or chooses not to revise its proposal, its existing proposal will be rescored along with revised proposals in the same manner as the original proposals.  Proposers remaining within the competitive range may be asked to submit a Best and Final Offer (BAFO). In the BAFO request, the Proposers may be asked to provide additional information, confirm or clarify issues an d submit a final cost/price offer. A deadline for submission will be stipulated. The BAFO’s will be scored in the same manner as the original proposals.  After the BAFO’s are evaluated and scored, the evaluation committee may recommend a proposal with the h ighest final ranking or a short list of top ranked proposals within the competitive range whose offers(s) are the most advantageous to MBL.

MBL will evaluate the offers based on the following criteria: Pass/Fail Criteria  Proposer has demonstrated at least 5 years of related services experience. (P/F)

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City of Montebello 17
 Proposer has demonstrated previous experience working for or with public agencies, transit entities, or corporations on related project. (P/F)
If the Proposer does not meet any of the criteria mentioned above, their proposal may not be considered for evaluation.

All proposals submitted may be subject to clarifications and further negotiation. All agreements resulting from negotiations that differ from what is represented within the RFP or in the respondent’s res ponse shall be documented and included as part of the final contract agreement.

POINT OF CONTACT
This RFP is issued by the City, and the Senior Procurement Analyst will be the sole point of contact (“Point of Contact”) during the RFP submission and procure ment process. Communications initiated by respondents to this RFP with members of the City Council, or officers, personnel or employees of the City, other than as coordinated by the Point of Contact, may be grounds for disqualification. Any inquiries or requests during this submission or procurement process shall be submitted in writing to the following Point of Contact:

City of Montebello, Transportation Department
Name: Rohan Anderson
Title: Senior Procurement Analyst
Address: 400 S. Taylor Ave.,
Montebello, CA 90640
Telephone: (323) 558-1625 ext.104
E-mail: [email protected]

If the Point of Contact determines a response to any such inquiry is warranted, said response will be issued to all prospective Proposers via PlanetBids.com

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City of Montebello 18

EVALUATION CRITERIA
Award will be made to the Offeror whose pro posal offers the best value to the City. Proposals that meet the pass/ fail criteria now will be evaluated in accordance with the following criteria:

QUALITATIVE AND QUANTITATIVE CONSIDERATIONS
Proposers’ proposals will be evaluated based on the basis of the following qualitative and quantitative factors with the weighted value set forth below:

# Categories Weighted
Points (Pts)
1 Project Management Plan
The proposal shall contain a detailed explanation of the project and not a reiteration of the RFP itself. The information offered should be a compendium of the Proposer’s knowledge of the standards outlined in the SOW.
10 pts
2 Proposed Project Team
Qualifications and experience of management and staff and other personnel, comprehensiveness of plan, and team’s familiarity with the requested provision services. 20 pts
3 Firm Qualifications and Experience
Demonstrate experience completing related projects of the same or similar magnitude.

Present a catalog of experience and expertise most advantageous to the City. 15 pts
4 Technical Approach
Understanding of the RFP requirements and illustrating the ability to meet performance objectives, compli ance with all technical and administrative requirements, financial viability, accounting, and reporting.
25 pts
5 Price
The Proposer’s Price Proposal will be compared to the Proposal with the Best Value to the City. The best value responsive price will receive the total weighted value for this criterion.
30 pts
TOTAL 100 pts

The best value responsive price will receive the total weighted score for the price (30 pts).

All other price proposals will be scored as follows:

Final Price Proposal Score = Proposal Price Rating x Weighted Points

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SECTION 3 – QUALIFICATIONS
The Contractor may be required to present proof of satisfactorily completed projects and products of similar work completed for past client companies, organizations, or municipalities that display good standing status without claims or pending claims against such work.

MINIMUM NECESSARY QUALIFICATIONS
The following are the minimum necessary qualifications to provide services:
 List and describe a minimum of three (3) projects or experiences, similar in nature to the Project contemplated in this RFP, which the Proposer is currently performing or has performed within the last thirty-six (36) months.
 Within the past five (5) years, have not declared bankruptcy and/or defaulted on a contractor; Within the past three (3) years, have been placed in receivership and/or denied credit.  Within the past five (5) years, h ave not assessed any penalties for non -compliance with any federal, state, local, city, or county labor laws and/or regulations.  Currently not under investigation for any charge and/or claim for noncompliance with any federal, state, local, city, or county labor laws and/or regulations, including without limitation prevailing wage laws and apprenticeship laws.
 Licensed to do business in the State of California.
 Certifications and Licenses (if required)
 Experience with agencies and projects of similar size and scope.  Financial Capacity.

SECTION 4 – SCOPE OF WORK

PROJECT OVERVIEW
The project objective is to remove, dispose, and replace existing hose reels, as well as associated components (e.g., meters, water bibs, grease guns, jumper hoses, nozzles, etc.), with high performance and dual pedestal framed hose reels designed for heavy-duty jobs that require high-frequency use, extra strength, and durability.

All couplers, meters, and nozzles must match or be retrofitted with MBL’s current tools and dispensed fluids.

The hose reel system must be bled and tested before being placed into service.

The Contractor must provide a complete asset list describing at a minimum the hose reels’ identification number, fluid type, location, and color. Each hose reel must be labeled with reflective outdoor vinyl labels for easy identification from the ground view. Additional hose reels may be acquired should the need be identified following the Contractor’s assessment of the existing hose reel system.

The project site includes three locations: Chassis Wash, Corporate Shop, and Fueling Station.

I. CHASSIS WASH
 One (1) Air Hose Reel

II. CORPORATE SHOP
 Thirteen (13) Air Hose Reel
 Six (6) Coolant Hose Reel
 Six (6) Grease Hose Reel
 Twenty (20) Oil Hose Reel

III. FUELING STATION
 Three (3) Air Hose Reel
 Two (2) Coolant Hose Reel
 Four (4) Oil Hose Reel

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The Contractor shall keep the premises and surrounding area free from the accumulation of waste materials or rubbish caused by operations under the agreement. At completion of the SOW, the Contractor shall remove and clean up all byproducts, debris, and rubbish caused by the operations under the agreement. If Contractor fails to clean up, the City may do so, and the cost thereof shall be charged to Contractor.

REELS SPECIFICATION
The equipment must be approved equal to the following Graco XD Series specifications:
 AIR HOSE REELS
o Graco XD Series Size 20, Red Color Finish
o 3/8” x 50’ Hose
 COOLANT HOSE REELS
o Graco XD Series Size 20, Yellow Color Finish
o 3/8” x 50’ Hose
 GREASE HOSE REELS
o Graco XD Series Size 20, Yellow Color Finish
o 3/8” x 50’ Hose
 OIL HOSE REELS
o Graco XD Series Size 20, Yellow Color Finish
o 3/8” x 50’ Hose
 GREASE GUNS
o Graco Grease Gun
o Graco Z Swivel and Alemite 6509-E Tip Swivel
o Graco 24” Whip Hose and Coupler
 METERS
o Graco Mechanical Quarts Meters
o Flex Hose with Non-drip Tips
 WATER BIBS
o Water Dispensing Bibs with Rubber Tips

TESTING
Following installation, the Contractor shall perform an acceptance test as recommended by the manufacturer.

A test outline shall be provided to the MBL for approval prior to performing the test. The test program shall show that the equipment meets all of the conditions described by the specification and that the equipment will perform as intended.

WARRANTY
A. Upon completion of the installation, the awarded Contractor shall provide a three (3) year warranty repairs against manufacturing defects in materials, function, and workmanship.

B. Warranty repairs shall include materials, freight of any kind, travel expenses, mileage, labor, and any other related expenses necessary to correct defects.

C. In the event of a failure of the hose reels during the warranty period, the Contractor will be required to repair the hose reels within 10 days of notification.

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SECTION 5 – FORM OF CONTRACT (SAMPLE)

PROFESSIONAL SERVICES AGREEMENT FOR

MAINTENANCE HOSE REELS REPLACEMENT

THIS AGREEMENT (“Agreement”) is made and entered into on …………………….., 2022, by the CITY OF MONTEBELLO, a municipal corporation (hereinafter referred to as “CITY”) and …………………………….. (Hereinafter referred to as “ CONTRACTOR”). CITY and CONTRACTOR are sometimes referred to he rein individual as a “Party,” and jointly as the “Parties.”

RECITALS

WHEREAS, CITY desires to retain a qualified professional contractor to replace and install the Maintenance Hose Reels (“Project”); and

WHEREAS, CONTRACTOR represents the degree of specialized expertise contemplated within California Government Code, Section 37103, and is qualified to perform such services by virtue of its experience and the training, education, and expertise of its principals and employees; and

WHEREAS, no official or employee of CITY has a financial interest, within the provisions of Sections 1090 – 1092 of the California Government Code, in the subject matter of this Agreement; and

WHEREAS, CONTRACTOR responded to CITY’s Request for Proposal d ated September 29, 2022 (RFP No. [23-2]), as such is set forth fully in Exhibit “A” hereto and incorporated fully herein by this reference (hereinafter “Contractor Proposal”).

NOW THEREFORE, in consideration of performance by the Parties of the covenants and conditions herein contained, the Parties hereto agree as follows:

SECTION 1. SERVICES / COMPENSATION.

A. CONTRACTOR shall provide to CITY those services that are set forth fully in the Scope of Services, as such is set forth fully in Exhibit “A” hereto and incorporated fully herein by this reference (hereinafter “Professional Services”).

B. CONTRACTOR shall complete the Scope of Services within the time set forth in the Schedule of Performance, as such is set forth in Exhibit “B” hereto and incorporated fully herein by this reference.

C. CONTRACTOR shall be compensated a sum not-to-exceed $………………(the “Maximum Compensation”) for performance of the Professional Services as set forth in the Schedule of Compensation attached hereto as Exhibit “C” and incorporated fully herein by this reference (“Compensation”). CONTRACTOR shall provide an itemized billing statement to CITY each month for Professional Services performed.

CONTRACTOR shall not incur fees or costs which exceed the Maximum Compensation without the prior written consent of CITY.

D. CITY will be invoiced at the end of the first billing period following commencement of work and at the end of each billing period thereafter. Payment in full of an invoice must be received by CONTRACTOR within thirty (30) days of the date of such invoice.

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City of Montebello 22
E. Work performed shall be deemed approved and accepted by CITY as and when invoiced unless CITY objects within fifteen (15) days of invoice date by written notice specifically stating the details in which CITY believes such work is incomplete or defective, and the inv oice amount(s) in dispute. CITY shall pay undisputed amounts as provided for in the preceding paragraph.

F. Failure of CITY to submit full payment of an invoice within thirty (30) days of the date thereof subjects this agreement and the work herein contempla ted to suspension or termination at CONTRACTOR's discretion.

SECTION 2. TERM.

This Agreement shall commence on ………………, 2022 , and shall terminate upon completion of the Scope of Services set forth herein, unless terminated sooner as provided in Section 8 herein.

The Parties agree that Sections 4(B), 9, 10, 11, 13, 16, 17, 18, and 19 shall survive for three (3) years following the expiration or termination of this Agreement.

SECTION 3. CONTRACT DOCUMENTS.

For purpose of this Agreement, the contract documents for the aforesaid Project shall consist of (and are outlined in the following order of preference):

A. RFP No. 23-2;
B. Proposer’s [DATE] Proposal for Transit Relocation Feasibility Analysis and all referenced specifications, details, and appendices (Exhibit “A” – “C”); C. All required bonds, insurance certificates, permits, notices, schedules, forms, certifications and affidavits; and
D. Any and all addenda or supplemental agreements clarifying, or extending the work contemplated as may be required to insure its completion in acceptable manner.

All of the provisions of said Contract Documents constitute a material part hereof and shall be hereby incorporated by reference as though fully set forth herein.

SECTION 4. PERFORMANCE.

A. CONTRACTOR shall at all times, faithfully, competently, and to the best of its ability, experience and talent, perform all tasks described herein.

B. CONTRACTOR shall employ, at a minimum, generally accepted standards and practices utilized by companies engaged in providing similar services, as are required of CONTRACTOR hereunder, in meeting its obligations under this Agreement.

C. CONTRACTOR shall be knowledgeabl e of and subject to all CITY ordinances, rules and regulations, standard operating procedures, and the supervisory chain of command.

D. CONTRACTOR shall have the right to retain, subject to CITY's written approval, additional individuals, Contractors, or sub -Contractors to assist in the completion of services as herein defined.

Compensation for additional individuals, Contractors, or sub -Contractors shall be the sole and

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City of Montebello 23
exclusive responsibility of the CONTRACTOR.

E. CONTRACTOR shall maintain full and accurate records with respect to all matters covered under this Agreement for a period of three (3) years unless otherwise provided for in Exhibit “A.” Upon CITY providing twenty-four (24) hours advanced prior notice, CONTRACTOR shall make all records, invoices, time cards, cost control sheets and other records maintained by CONTRACTOR in connection with this Agreement available during CONTRACTOR regular working hours to CITY for review and audit by CITY.

F. All reports, documents, or other written material developed by CONTRACTOR in the performance of this Agreement shall be and remain the property of CITY without restriction or limitation upon its use or dissemination by CITY. Such material shall not be the subject of a copyright application by CONTRACTOR. Any alt eration or reuse by CITY of any such materials on any project other than the Project shall be at CITY’s sole risk unless CITY compensates CONTRACTOR for such reuse.

SECTION 5. WORK PRODUCT.

A. All data, documents, discussion, or other information developed or received by CONTRACTOR or provided for performance of this Agreement are deemed confidential and shall not be disclosed by CONTRACTOR without prior written consent by CITY. CITY shall gran t such consent if disclosure is legally required. All such written products shall be returned to CITY upon the termination or expiration of this Agreement. CONTRACTOR agrees that the covenants contained in this Article shall survive the expiration or termination of this Agreement.

B. Documents are provided in CONTRACTOR’s standard software formats. CITY recognizes that electronic or magnetic data and its transmission can be easily damaged, may not be compatible with CITY’s software formats and systems, may develop inaccuracies during conversion or use, and may contain viruses or other destructive programs, and that software and hardware operating systems may become obsolete. As a condition of delivery of electronic or magnetic data, CITY agrees to defend indemnify and hold CONTRACTOR, its sub -contractors, agents and empl oyees harmless from and against all claims, loss, damages, expense and liability arising from or connected with its use, reuse, misuse, modification or misinterpretation. In no event shall CONTRACTOR be liable for any loss of use, profit or any other damage.

SECTION 6. EXTRA SERVICES.

No extra services over and above the Compensation shall be rendered by CONTRACTOR under this Agreement unless such extra services first shall have been duly authorized in writing by CITY’s City Manager (“City Manager”).

SECTION 7. CITY SUPERVISION.

The Transportation Director shall have the right of general supervision of all work performed by CONTRACTOR and shall be CITY’s agent with respect to obtaining CONTRACTOR’s compliance hereunder.

No payment for services rendered under this Agreement shall be made without the prior approval of the City Manager.

SECTION 8. TERMINATION.

In the event that either Party hereto fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, the non-defaulting party shall give the defaulting party written

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City of Montebello 24
notice of the default, the nature of the default, and of the steps necessary to cure the default.

A. Termination for Cause. In the event that any of the provisions of the Agreement are violated by either party, the non-defaulting Party may terminate the Agreement by serving written notice upon the other Party, listing the violation(s) and its intent to terminate such Agreement unless within ten (10) days after the serving of such notice, such violation shall cease or be rectified, the contract shall upon the expiration of an additional thirty (30) days cease and terminate. Violations by CONTRACTOR which cannot be corrected within ten (10) days, said contract shall at the option of CITY cease and terminate upon the giving of like notice. In the event of any such termination for default by CONTRACTOR, CITY may take over the work and prosecute the same to completion by contract or otherwise for the account and at the expense of CONTRACTOR. CONTRACTOR and his sureties shall be liable to CITY for any excess cost occasioned in the event of any such termination. This change shall not be construed to prevent the termination, for other causes authorized by law or other provisions of this contract. In the event of a termination for cause, CONTRACTOR shall only be entitled to the Compensation for those Professional Services satisfactory performed on or before the effective date of termination.

B. Termination for Convenience. CITY shall have the option, at its sole discretion and without cause, to terminate this Agreement in whole, or in part, after giving written notice to CONTRACTOR at least five (5) business days before the termination is to be effective. Upon the termination of this Agreement as provided herein, CITY shall provide to CONTRACTOR the part of Compensation which would otherwise be payable to CONTRACTOR for services CONTRACTOR had completed as of the date of termination, less the amount of all previous payment with respect to the Compensation. Further, upon such a termination for convenience by CITY, the Parties agree that CONTRACTOR shall be reimbursed for any “non-refundable” costs that CONTRACTOR has incurred for its services under this Agreement, provided that: (1) such “non - refundable” costs were incurred by CONTRACTOR prior to the date of termination; (2) that CONTRACTOR provides CITY with adequate proof that CONTRACTOR incurred the costs, and is unable to be seek a refund for such costs; and (3) such costs were within the SOW or services to be performed under this Agreement. Such “non -refundable” costs may include, but are not limited to, travel reservations incurred by CONTRACTOR for its performance of services under this Agreement. CONTRACTOR agrees to cease all work under this Agreement on or before the effective date of any notice of termination.

SECTION 9. EMPLOYMENT OF CITY EMPLOYEES.

No regular employee of CITY shall be employed by CONTRACTOR during the Term of this Agreement.

SECTION 10. NON-LIABILITY OF CITY OFFICIALS AND EMPLOYEES.

No official or employee of CITY shall be personally liable to CONTRACTOR in the event of any default or breach by CITY, or for any amount which may become due to CONTRACTOR.

SECTION 11. INDEPENDENT CONTRACTOR.

A. CONTRACTOR is and shall, at all times, remain as to CITY a wholly independent contractor. Neither CITY nor any of its elected officials, officers, employees or agents shall have control over the conduct of CONTRACTOR except as expressly set forth in this Agreement. CONTRACTOR shall not at any time or in any manner represent that he is in any manner an elected official, officer, employee or agent of CITY. No employee benefits shall be available to CONTRACTOR in connection with the performance of this Agreement. Exc ept as provided in this Agreement, CITY shall not pay salary, wages, or other compensation to CONTRACTOR for performance hereunder for CITY. CITY shall not be liable for compensation to CONTRACTOR, CONTRACTOR’s employees or CONTRACTOR’s sub-Contractor for

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injury or sickness arising out of performing services hereunder.

B. The parties further acknowledge and agree that nothing in this Agreement shall create or be construed to create a partnership, joint venture, employment relationship or any other relationship except as set forth in this Agreement.

C. CITY shall not deduct from the Compensation paid to CONTRACTOR any sums required for Social Security, withholding taxes, FICA, state disability insurance or any other federal, state or local tax or charge which may or may not be in effect or hereinafter enacted or required as a charge or withholding on the compensatio n paid to CONTRACTOR. CITY shall have no responsibility to provide CONTRACTOR, its employees or sub-Contractor with workers’ compensation insurance or any other insurance.

SECTION 12. PERS ELIGIBILITY INDEMNITY.

A. In the event that CONTRACTOR or any employee, agent, or sub -Contractor of CONTRACTOR providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an em ployee of CITY, CONTRACTOR shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for PERS benefits on behalf of CONTRACTOR or its employees, agents, or sub -Contractors, as well as for the payment of a ny penalties and interest on such contributions, which would otherwise be the responsibility of CITY.

B. Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, CONTRACTOR and any of its employees, agen ts, and sub -Contractor providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by CITY, including but not limited to eligibility t o enroll in PERS as an employee of CITY and entitlement to any contribution to be paid by CITY for employer contribution and/or employee contributions for PERS benefits.

SECTION 13. LEGAL RESPONSIBILITIES.

CONTRACTOR shall at all times observe and compl y with all applicable laws, ordinances, codes and regulations of the federal, state and local governments including, but not limited to the Montebello Municipal Code. CITY, and its appointed or elected officers, employees, or agents, shall not be liable a t law or in equity occasioned by failure of CONTRACTOR to comply with this section.

SECTION 14. INDEMNIFICATION.

CONTRACTOR agrees to, and shall defend, indemnify, protect and hold harmless, CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers from and against any and all claims, demands, lawsuits, defense costs, civil, penalties, expens es, causes of action, and judgments at law or in equity, or liability of any kind or nature which CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers may sustain or incur or which may be imposed upon them for injuries or deaths of persons, or damage to property arising out of CONTRACTOR’s negligent or wrongful act, or omission under the terms of this Agreement, except only liability arising out of the sole negligence of CITY.

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SECTION 15. INSURANCE COVERAGE.

During the Term of this Agreement, CONTRACTOR shall carry, maintain, and keep in full force and effect all of the following minimum scope of insurance against claims for death or injuries to persons or damages to property that may arise from or in connecti on with CONTRACTOR’s performance of this Agreement.

Such insurance shall be of the types and in the amounts as set forth below:

Commercial General Liability (CGL): Broad-form, Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis for bodily injury and property damage, including premise-operations, products- completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury or bodily injury, and advertising injury, with limits n o less than Two Million Dollars and Zero Cents ($2,000,000), combined single limits, per occurrence. If a general aggregate limit applies, the limit shall be twice the required occurrence limit.

Business Automobile Liability Insurance: For owned vehicles, hired, and non-owned vehicles, Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if CONTRACTOR has no owned autos, Code 8 (hired) and 9 (non -owned), with limit no less than One Million Dollars and Zero Cents ($1,000,000.00) per accident for bodily injury and property damage.

Worker’s Compensation insurance as required by the laws of the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than One Million Dolla rs and Zero Cents ($1,000,000.00) per accident for bodily injury or disease. CONTRACTOR agrees to waive, and to obtain endorsements from its workers’ compensation insurer waiving subrogation rights under its workers’ compensation insurance policy against CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers for losses arising from work performed by CONTRACTOR for CITY and to require each of its sub-Contractors, if any, to do likewise under their workers’ compensation insurance policies.

By executing this Agreement, CONTRACTOR further certifies as follows:

I am aware of, and will comply with, Section 3700 of the Labor Code, requiring every employer to be insured against liability of Workers’ Compensation or to undertake self-insurance before commencing any of the work contemplated herein.

If applicable, Professional Errors and Omissions (E&O) Liability insurance appropriate to the CONTRACTOR’s profession, with limit no less than Two Million Dollars and Zero Cents ($2,000,000.00) per occurrence or claim, Two Million Dollars and Zero Cents ($2,000,000.00) aggregate. Architects’ and engineers’ coverage shall be endorsed to include contractual liability. If the policy is written as a “claims made” policy, the retroactivity date shall be prior to the start of work set forth herein, CONTRACTOR shall obtain and maintain said E&O liability insurance during the Term of this Agreement and for five (5) years after completion of work hereunder. If coverage is canceled or non -renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of this Agreement, CONTRACTOR shall purchase “extended reporting” coverage for a minimum of five (5) years after completion of the work.

If CONTRACTOR maintains higher limits than the minimums shown above, CITY requires and shall be entitled to coverage for the higher limits maintained by CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to CITY.

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CONTACTOR shall require each of its sub-Contractors, if any, to maintain insurance coverage that meets all of the requirements of this Agreement.

The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California, wit h a current rating of at least a : VII in the latest edition of Best's Insurance Guide, and approved by CITY.

Each insurance policy required herein shall state that coverage shall not be canceled, except after providing CITY thirty (30) days’ (or ten [10] calendar days’ for non -payment) prio r written notice.

CONTRACTOR agrees that if it does not keep the aforesaid insurance in full force and effect CITY may either: (i) immediately terminate this Agreement for Cause; or (ii) take out the necessary insurance and pay, at CONTRACTOR’s expense, the premium thereon.

At all times during the Term of this Agreement, CONTRACTOR shall maintain on file with CITY’s Risk Manager a certificate or certificates of insurance showing that the aforesaid policies are in effect in the required amounts and naming CITY, its officers, agents, employees and volunteers as an additional insured. CONTRACTOR shall, prior to commencement of work under this Agreement, file with CITY’s Risk Manager such certificate(s).

CONTRACTOR shall provide proof that policies of insurance required herein expiring during the Term of this Agreement have been renewed or replaced with other policies providing at least the same coverage.

Such proof will be furnished at least two (2) weeks prior to the expiration of the coverages.

The general liability and automobile policies of insurance required by this Agreement shall contain an endorsement naming CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers as a dditional insureds. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty (30) days’ prior written notice to CITY. CONTRACTOR agrees to require its insurer to modify the certificates of insurance to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions.

Except for professional liability and workers’ compensation policies, the policies herein are primary and non-contributing with any insurance that may be carried by CITY. Any insurance or self -insurance maintained by CITY, its officers, employees, agents or volun teers, shall be in excess of CONTRACTOR’s insurance and shall not contribute with it.

All insurance coverage provided pursuant to this Agreement shall not prohibit CONTRACTOR, and CONTRACTOR’s employees, agents or sub -Contractor, from waiving the right o f subrogation prior to a loss. CONTRACTOR hereby waives all rights of subrogation against CITY. CONTRACTOR agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver if subrogation endorsement from the insurer.

Coverage not affected. Any failure to comply with the reporting provisions of the policies contemplated herein, shall not affect coverage provided to CITY, its elected and appoint ed boards, officers, officials, employees, agents and volunteers.

Coverage applies separately. CONTRACTOR’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.

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City of Montebello 28
Any deductibles or self -insured retentions must be declared to and approved by CITY. At the option of CITY, CONTRACTOR shall either reduce or eliminate the deductibles or self-insured retentions with respect to CITY, or CONTRACTOR shall procure a bond guaranteeing payment of losses and expenses.

Procurement of insurance by CONTRACTOR shall not be construed as a limitation of CONTRACTOR's liability or as fall performance of CONTRACTOR’s duties to indemnify, hold harmless and defend und er Section 9 of this Agreement.

CITY, its officers and employees shall not be responsible for any claims in law or in equity occasioned by failure of CONTRACTOR to comply with this section.

SECTION 16. SUBCONTRACT, ASSIGNMENT OR DELEGATION.

CONTRACTOR shall not subcontract, delegate or assign its duties or rights hereunder, either in whole or in part, without the prior written consent of CITY. Any proposed subcontract, delegation, or assignment shall provide a description of the services to be covered, identification of the proposed sub -Contractor, delegee, or assignee, and an explanation of why and how the same was selected, including the degree of competition involved.

Any subcontract, delegation or assignment shall be made in the name of CONTRACTOR and shall not bind or purport to bind CITY and shall not release CONTRACTOR from any obligations under this Agreement including, but not limited to, the duty to properly supervise and coordinate the work of employees, assignees, delegees or sub-Contractors. No such subcontract, delegation or assignment shall result in any increase in the amount of total compensation payable to CONTRACTOR under the Agreement.

SECTION 17. NO WAIVER.

Waiver by any party hereto of any term, condition or covenant of this Agreement shall not constitute the waiver of any other term, condition or covenant hereof.

SECTION 18. DISPUTE RESOLUTION; GOVERNING LAW.

Disputes regarding the interpretation or application of any provision(s) of this Agreement shall, to the extent reasonably feasible, be resolved through good faith negotiations between the Parties. If any action at law or in equity is brought to enforce this Agreement or because of alleged dispute, breach, default or misrepresentation in connection with the provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney’s fees, expert fees, costs and necessary disbursements incurred in that action or proceeding, in addition to such other relief as may be sought and aw arded. The venue for any litigation shall be County of Los Angeles, California. The Parties agree that the covenants contained in this Article shall survive the expiration or termination of this Agreement.

SECTION 19. ATTORNEY’S FEES AND COSTS.

If litigation is reasonably required to enforce or interpret the provisions of this Agreement, the prevailing party in such litigation shall be entitled to an award of reasonable attorney's fees and costs in addition to any other relief to which it may be entitled.

SECTION 20. WARRANTIES.

Each of the parties represents and warrants to one another as follows:

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City of Montebello 29
A. It has received independent legal advice from its attorneys with respect to the advisability of entering into and executing this Agreement;

B. In executing this Agreement, it has carefully read this Agreement, knows the contents thereof, and has relied solely on the statements expressly set forth herein and has placed no reliance whatsoever on any statement, representation, or promise of any other party, or any other person or entity, not expressly set forth herein, nor upon the failure of any other party or any other person or entity to make any statement, representation or disclosure of any matter whatsoever; and

C. It is agreed that each party has the full right and authority to enter into this Agreement, and that the person executing this Agreement on behalf of either party has the full right and authority to fully commit and bind such party to the provisions of this Agreement.

SECTION 21. MISCELLANEOUS.

A. The descriptive paragraph headings of this Agreement are included for purposes of convenience only and shall not control or affect the construction of interpretation of any of its provisions.

B. Whenever the context hereof shall so requ ire, the singular shall include the plural, the male gender shall include the female gender, and the neuter and vice versa.

C. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or une nforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein.

D. The re presentations and warranties made by the parties to this Agreement shall survive the consummation of the transaction herein described.

E. This Agreement may be signed in any one or more counterparts all of which taken together shall be but one and the same Agreement. Any signed copy of this Agreement or of any other document or agreement referred to herein, or copy or counterpart thereof, delivered by facsimile transmission, shall for all purposes be treated as if it were delivered containing an original manual signature of the party whose signature appears in the facsimile and shall be binding upon such party in the same manner as though an originally signed copy had been delivered.

F. Each of the parties acknowledges that it has been represented by independent counsel of its own choosing, or if it has not been so represented, it has been admonished to obtain independent counsel and has freely and voluntarily waived and relinquished the right to counsel.

Each party who has not obt ained independent counsel acknowledges that the failure to have independent legal counsel will not excuse such party’s failure to perform under this Agreement or any agreement referred to in this Agreement.

G. To the extent of a conflict between the terms of this Agreement and those set forth in any exhibits or attachments hereto, the terms of this Agreement shall govern.

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City of Montebello 30

SECTION 22. NOTICE.

All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals hereunder shall be given to the following addresses or such other addresses as the Parties may designate by written notice:

CITY MANAGER
City of Montebello
1600 West Beverly Boulevard
Montebello, California 90640

CONTRACTOR
________________________
________________________
________________________
________________________

SECTION 23. NON-DISCRIMINATION AND EQUAL OPPORTUNITY EMPLOYER.

In the performance of this Agreement, CONTRACTOR shall not discriminate against any employee, sub - Contractor, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, mental condition or sexual orientation.

CONTRACTOR will take affirmative action to ensure that sub-Contractor and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, ph ysical or mental handicap, medical condition or sexual orientation.

SECTION 24. CONFLICT OF INTEREST.

CONTRACTOR and its officers, employees, associates and sub -Contractor, if any, shall comply with all California conflict of interest statutes applicable to Contractor’s Services under this Agreement, including, but not limited to, the Political Reform Act (Gov. Code, § 81000 et seq.) and Government Code Section 1090. CONTRACTOR further covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by CONTRACTOR under this Agreement, or which would conflict in any manner with the perfor mance of its services hereunder.

CONTRACTOR further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, CONTRACTOR shall avoid the appearance of having any interest that would conflic t in any manner with the performance of its services pursuant to this Agreement.

CONTRACTOR covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to CITY as a result of the performance of this Agreement, or the services that may be procured by CITY as a result of the recommendations made by CONTRACTOR. CONTRACTOR's covenant under this section shall survive the termination of this Agreement.

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SECTION 25. ENTIRE AGREEMENT.

This Agreement contains the entire understanding between CITY and CONTRACTOR. Any prior agreements, promises, negotiations or representations not expressly set forth herein are of no force or effect. Subsequent modifications to this Agreement shall be effective only if in writing and signed by each party. If any term, condition or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall be valid and binding.

CITY OF MONTEBELLO CONTRACTOR

René Bobadilla Name and Title
City Manager

Dated: Dated:

ATTEST:

Christopher Jimenez
City Clerk

APPROVED AS TO FORM

Arnold M. Alvarez-Glasman
City Attorney

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City of Montebello 32
SECTION 6 – EXHIBITS

EXHIBIT A

PROPOSAL SUBMISSION CHECK LIST

NAME & JOB TITLE
(PERSON INITIALING

DOCUMENT)

BUSINESS NAME

ADDRESS

CITY, STATE, ZIP CODE

PHONE NUMBER

EMAIL ADDRESS

AUTHORIZED SIGNATURE DATE

Description Section Proposer
Initials
1 ☐ Proposal Submission Check List EXHIBIT A
2 ☐ Proposal SECTION 1
3 ☐ Letter of Transmittal EXHIBIT B
4 ☐ Certificates, Licenses, Permits, and Registrations EXHIBIT C 5 ☐ Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution EXHIBIT D
6 ☐ References EXHIBIT E
7 ☐ Project Portfolio References SECTION 3
8 ☐ Insurance EXHIBIT F
9 ☐ Cost Proposal EXHIBIT G
10 ☐ Statement of Disadvantaged Business Enterprise Participation EXHIBIT H 11 ☐ Bidder’s List of Subcontractor (DBE and Non-DBE) EXHIBIT I 12 ☐ Debarment and Suspension Certification EXHIBIT J
13 ☐ Performance Bond EXHIBIT K
Optional Items
14 ☐ Requests for Exceptions or Deviations SECTION 1

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City of Montebello 33

EXHIBIT B

LETTER OF TRANSMITTAL

CITY OF MONTEBELLO
Transportation Department
SUBJECT: REQUEST FOR PROPOSAL (RFP) NO. 23-2

MAINTENANCE HOSE REELS REPLACEMENT
In response to the subject Request for Proposal (RFP) and in accordance with the accompanying Instructions to Proposers, the Proposer hereby commits to the City of Montebello to perform the work in accordance with the provisions in the Proposal Level Contract Documents and any addenda thereto and at the prices stated in the Revenue Price Sheet, which will be included and made a part of any subsequent Contract.

The Proposer agrees that the proposal constitutes a firm offer that cannot be withdrawn for ninety ( 90) calendar days from the proposal opening or until the Contract for the work is fully executed between the City and a third party, whichever is earlier.

If awarded a contract, the Proposer agrees to execute the Agreement and deliver it to the City of Montebello within seven (7) calendar days after receiving a Letter of Award together with the necessary certificates of insurance and any applicable performance or payment bonds. The Contractor shall proceed with the work upon receipt of a Notice to Proceed.

The Proposer certifies that it has:

1. Examined and is fully familiar with all the provisions of the RFP Documents and any addenda thereto:

2. Satisfied itself as to the requirements of the Contract, the nature and location of the work, the general and local conditions to be encountered in the performance of the work, and all other matters that can in any way affect the Work and/or the cost thereof.

3. Examined the e xperience, skill, and certification requirements in Scope of Services and that the entities performing the work can fulfill the specified requirements; and

4. Carefully review the accuracy of all statements and figures shown in the proposal and attachment hereto.

Therefore, the undersigned hereby agrees that the City of Montebello will not be responsible for any errors or omissions in the proposal.

The Proposer further certifies that:

1. The only persons, firms, corporations, joint ventures/partnerships, and/or other parties interested in the proposal as principals are those listed as such in the Proposal Forms and that,

2. The p roposal has been prepared without collusion with any other person, firm, corporation, joint venture/partnership, and/or other party.

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City of Montebello 34
The undersigned acknowledges receipt, understanding, and full consideration of the following addenda to the Proposal Documents:

Addenda No(s)
Dated Dated
Dated Dated
Dated Dated

Failure to acknowledge receipt of all addenda may cause the proposal to be considered non -responsive to the solicitation. Acknowledged receipt of each addendum must be clearly established and included with the Proposal /offer.

Proposer’s Name:

Business Address:

Contact Person:

Phone:

Email Address:

Signature of Authorized Official Signature of Authorized Official

Typed or Printed Name Typed or Printed Name

Title Title

Date Date

(Joint ventures/partnerships are to provide a signed copy of their agreement with their proposal.)

For proposals requiring licenses the following information is required:

Contractor’s License No.

Expiration Date:

License Classification:

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City of Montebello 35

EXHIBIT C

CERTIFICATES, LICENSES, PERMITS, AND REGISTRATIONS

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City of Montebello 36

EXHIBIT D

INDEMNIFICATION AND HOLD HARMLESS AGREEMENT A ND WAIVER OF

SUBROGATION AND CONTRIBUTION
Contract/Agreement/License/Permit No. or description: Maintenance Hose Reels Replacement_ Indemnitor(s):
(List all names)
To the fullest extent permitted by law, Indemnitor hereby agrees, at its sole cost and expense, to protect, indemnify, and hold harmless the City of Montebello and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, and assigns (collectively “Indemnitees”) from and against an y and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith (collectively “Liabilities”), resulting from any wrongful or negligent act, failure to act, error, or omission of Indemnitor or any of its officers, agents, servants, emp loyees, subcontractors, material men, suppliers or their officers, ag ents, servants or employees, arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to the above -referenced contract, agreement, license, or permit (the “Agreement”) or the performance or failure to perf orm any term, provision, covenant, or condition of the Agreement, including this indemnity provision. This indemnity provision is effective regardless of any prior, concurrent, or subsequent passive negligence by Indemnitees and shall operate to fully indemnify Indemnitees against any such negligence. This indemnity provision shall survive the termination of the Agreement and is in addition to any other rights or remedies which Indemnitees may have under the law. Payment is not required as a condition prece dent to an Indemnitee’s right to recover under this indemnity provision, and an entry of judgment against the Indemnitor shall be conclusive in favor of the Indemnitee’s right to recover under this indemnity provision. Indemnitor shall pay Indemnitees for any attorney’s fees and costs incurred in enforcing this indemnification provision. Notwithstanding the foregoing, nothing in this instrument shall be construed to encompass (a) Indemnitees’ active negligence or willful misconduct to the limited extent that the underlying Agreement is subject to Civil Code § 2782(a), or (b) the contracting public agency’s active negligence to the limited extent that the underlying Agreement is subject to Civil Code § 2782(b). This indemnity is effective without reference to the existence or applicability of any insurance coverages which may have been required under the Agreement or any additional insured endorsements which may extend to Indemnitees.

City agrees to promptly inform Indemnitor in writing of any claim that City believes to be subject to this Indemnification and Hold Harmless Agreement.

Indemnitor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Indemnitor regardless of any prior, concurrent, or subsequent no n- active negligence by the Indemnitees.

In the event there is more than one person or entity named in the Agreement as an Indemnitor, then all obligations, liabiliti es, covenants and conditions under this instrument shall be joint and several. “Indemnitor”

Name: Name:
(Print) (Print)
By: By:
(Signature) (Signature)
Title: Title:

Date: Date:

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City of Montebello 37

EXHIBIT E

REFERENCES
List at Least Three (3) Professional References:
1 Project City/Agency/Other:

Person of Contact:

Phone Number:

E-mail Address:

Address:

City, State, Zip Code:

Description of Contract
(Please include contract
value, award date, term of
contract, and description of
work):

Contract Value: $
Award Date:

Term of Contract:

Description of Work:
2 Project City/Agency/Other:

Person of Contact:

Phone Number:

E-mail Address:

Address:

City, State, Zip Code:

Description of Contract
(Please include contract
value, award date, term of
contract, and description of
work):

Contract Value: $
Award Date:

Term of Contract:

Description of Work:
3 Project City/Agency/Other:

Person of Contact:

Phone Number:

E-mail Address:

Address:

City, State, Zip Code:

Description of Contract
(Please include contract
value, award date, term of
contract, and description of
work):

Contract Value: $
Award Date:

Term of Contract:

Description of Work:

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City of Montebello 38

EXHIBIT F

INSURANCE
The proposal shall include a statement that the insurance requirements set forth in the contract documents can be obtained and will be carried without reservation or exclusion should Proposer be awarded a contract pursuant to this RFP.

Successful Proposer shall at all times during the term of the awarded Agreement, carry, maintain, and keep in force and effect, with an insurance company admitted doing business in California, rated “A” or better in the most recent A.M. Best’s Insurance Rating Guide, and approved by the CITY, a policy, or policies of:

A. Commercial General Liability Insurance using Insurance Services Office Commercial General Liability form CG 00 O1 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross-liability exclusion for claims or suits by one insured against another. 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. Business Auto Coverage on ISO Business Auto Coverage form CA 00 O1 including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than $1,000,000 per accident, combined single limit. If Contractor owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described in the preceding subsection. If Contractor or Contractor’s employees will use personal autos in any way on this project, Contractor shall provide evidence of personal auto liability coverage for each such person.

C. Workers' Compensation insurance on a state approved policy form providing statutory benefits as required by law with employer's liabilit y limits no less than $1,000,000 per accident for all covered losses.

D. Where applicable, Professional Liability or Errors and Omissions Insurance as appropriate to the profession, written on a policy form coverage specifically designed to protect against ac ts, errors or omissions of the Contractor and "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy limit shall be not less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this Agreement. City, its officers, employees, attorneys, and designa ted volunteers shall be named as additional insured on the policy, or policies, as to commercial general liability bodily injury and property damage coverages and automobile coverages with respect to liability arising out of successful Proposer’s work under this Agreement.

E. All insurance policies shall provide that the insurance coverage shall not be non -renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving the City thirty (30) days' prior written notice thereof. Any such thirty (30) day notice shall be submitted to City via certified mail, return receipt requested, addressed to "Risk Manager," City of Montebello, 1600 West Beverly Boul evard, Montebello, California, 90640. Contractor agrees that it will not cancel, reduce, or otherwise modify said insurance coverage.

F. Contractor shall submit to City (i) insurance certificates indicating compliance with the minimum worker's compensation in surance requirements above, and (ii) insurance policy endorsements indicating compliance with all other minimum insurance requirements above, not less than one (1) day prior to the beginning of performance under this Agreement. Endorsements shall be executed on City's appropriate standard forms entitled "Additional Insured Endorsement".

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City of Montebello 39

EXHIBIT G

COST PROPOSAL SHEET
In accordance with the Request for Proposal i ssued by the City of Montebello (hereinafter referred to as Contractor/Proposer), the undersigned proposing company hereby agrees to furnish all necessary labor, materials and incidentals required for the above stated contract as set forth in the Scope of Work and any addenda thereto, and to perform all work in the manner and time prescribed therein.

REQUIRED ITEMS UNIT
QTY. COST SUBTOTAL
ITEM 1 Air Hose Reels Kit $ $
ITEM 2 Coolant Hose Reels Kit $ $
ITEM 3 Grease Hose Reels Kit $ $
ITEM 4 Oil Hose Reels Kit $ $
ITEM 5 Mechanical Meters Kits $ $
ITEM 6 Grease Guns Kits $ $
ITEM 7 Water Bibs Kits $ $
ITEM 8 Labor (Assessment, removal, disposal, installation, and testing) $ $ ADDITIONAL ITEMS (Describe in detail of additional items offered) ITEM 9 $
TOTAL FIRM-FIXED PRICE $
CONTACT INFORMATION:

NAME & JOB TITLE

BUSINESS NAME

ADDRESS

CITY, STATE, ZIP CODE

PHONE NUMBER

EMAIL ADDRESS

AUTHORIZED SIGNATURE DATE

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City of Montebello 40

EXHIBIT H

STATEMENT OF DISADVANTAGED BUSINESS ENTERPRISE (DBE) PARTICIPATION This proposal provides for the following Disadvantaged Business Enterprise participation:

Disadvantaged Business Enterprise

Firm Name

Address

Phone Number

Type of Business

Currently DBE Certified? YES* ☐ NO ☐
*(If YES, attach a copy of the current Letter of Certification and Statement of Personal Net Worth.)

Total
% of Total Contract

Signature Date

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City of Montebello 41

EXHIBIT I
BIDDER’S LIST OF SUBCONTRACTOR (DBE AND NON-DBE)

Part I
The bidder shall list all subcontractors (both DBE and non-DBE) in accordance with Section 2-1.054 the Standard Specification and per Title 49, Section 26.11 of the Code of Federal Regulations. This listing is required in addition to listing DBE Subcontractors elsewhere in the proposal. Photocopy this form for additional firms.

Firm Name/
Address/
City, State, ZIP
Phone/
Fax

Annual Gross
Receipts Description of Portion of Work to be Performed Local Agency Use
Only
(Certified DBE?)
Name Phone

< $1 million YES
< $5 million NO
Address < $10 million If YES list DBE #:

Fax < $15 million
City State ZIP > $15 million Age of Firm (Yrs.)

Name Phone

< $1 million YES
< $5 million NO
Address < $10 million If YES list DBE #:

Fax < $15 million
City State ZIP > $15 million Age of Firm (Yrs.)

Name Phone

< $1 million YES
< $5 million NO
Address < $10 million If YES list DBE #:

Fax < $15 million
City State ZIP > $15 million Age of Firm (Yrs.)

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City of Montebello 42
Part II
The bidder shall list all subcontractors who provided a quote or bid but were not selected to participate as a subcontractor on this project. This is required for compliance with Title 49, Section 26 of the Code of Federal Regulations. Photocopy this form for additional firms.

Firm Name/
Address/
City, State, ZIP
Phone/
Fax

Annual Gross
Receipts Description of Portion of Work to be Performed Local Agency Use
Only
(Certified DBE?)
Name Phone

< $1 million YES
< $5 million NO
Address < $10 million If YES list DBE #:

Fax < $15 million
City State ZIP > $15 million Age of Firm (Yrs.)

Name Phone

< $1 million YES
< $5 million NO
Address < $10 million If YES list DBE #:

Fax < $15 million
City State ZIP > $15 million Age of Firm (Yrs.)

Name Phone

< $1 million YES
< $5 million NO
Address < $10 million If YES list DBE #:

Fax < $15 million
City State ZIP > $15 million Age of Firm (Yrs.)

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City of Montebello 43

EXHIBIT J

DEBARMENT AND SUSPENSION CERTIFICATION

CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND OTHER RESPONSIBILITY MATTERS - PRIMARY

COVERED TRANSACTIONS
The certifies to the best of it’s
(Firm Name/ Principle)
knowledge and belief, that it and its principals:

1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency:

2. Have not within a three -year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or Local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property;

3. Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (2) of this certification; and

4. Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause of default.

If unable to certify to any of the statements in this certification, the participant shall attach an explanation to this certification.

THE PRIMARY PARTICIPANT CERTIFIES

OR AFFIRMS THE TRUTHFULNESS AND ACCURACY OF THE CONTENTS OF THE STATEMENTS SUBMITTED ON OR WITH THIS CERTIFICATION AND UNDERSTANDS THAT THE PROVISIONS OF 31 U.S.C. SECTIONS 3801 ET SEQ. ARE APPLICABLE THERETO.

Signature of Authorized Official Title of Authorized Official The undersigned chief legal counsel for the _____________________________________ hereby certifies that the _____________________________________ has authority under State and Local law to comply with the subject assurances that the certification above has been legally made.

Signature of Attorney Date

(Firm Name/ Principle)

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City of Montebello 44

EXHIBIT K

PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS: that

(Insert full name and address and legal title of Contractor) as Principal, hereinafter called Contractor, and,

(Insert full name and address or legal title of Surety) as Surety, hereinafter called Authority, in the amount of $_____________ for the payment whereof Contractor and Surety bind themselves, their heirs, executers, administrators, successors and assigns, jointly and severally, firmly by these presents.

WHEREAS, Contractor has by written agreement dated _______________________, 20____, entered into a contract with the City for Contract No. _______________, which contract is by reference made a part hereof, and is hereinafter referred to as the Contract.

NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor shall promptly and faithfully perform said Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect.

The Surety hereby waives notice of any alteration or extension of time made by the City.

Whenever Contractor shall be, and is declared by the City to be in default under the Contract, the City having performed City’s obligations thereunder, the Surety may promptly remedy the default, or shall promptly

1. Complete the Contract in accordance with it terms and conditions, or

2. Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the lowest responsible bidder, or, if the City elects, upon determination by the City and the Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and the Authority, and make available as Work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, the amount set forth in the first paragraph hereof. The term "balance of the contract price," as used in this paragraph, shall mean the total amount payable by the City to Contractor under the Contract and any amendments thereto, less the amount properly paid by the City to Contractor.

Any suit under this bond must be instituted before the expiration of two (2) years from the date on which final payment under the Contract falls due.

No right of action shall accrue on this bond to or for the use of any person or corporation other than the RECIPIENT or the heirs, executors, administrators or successors of the City.

RFP No. 23-2
City of Montebello 45

Signed and sealed this ____________________ day of 20____.

WITNESS PRINCIPLE
(SEAL)
(TITLE)

WITNESS SURETY
(SEAL)
(TITLE)

Attach hereto proof of authority of officers or agents to sign bond.

RFP No. 23-2
City of Montebello 46

[THIS PAGE INTENTIONALLY LEFT BLANK]

EXHIBIT “B”
CONTRACTOR’S SCOPE OF SERVICES

EXHIBIT “C”

TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW

REQUIREMENTS

1. This Agreement may call for services that, i n whole or in part, constitute “public works” as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code (“Chapter 1”). Further, CONTRACTOR acknowledges that this Agreement is subject to (a) Chapter 1 and (b) t he rules and regulations established by the Department of Industrial Relations (“DIR”) implementing such statutes. Therefore, as to those Services that are “public works”, CONTRACTOR shall comply with and be bound by all the terms, rules and regulations described in 1(a) and 1(b) as though set forth in full herein.

2. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of Section 1 of this Exhibit, above.

3. CONTRACTOR shall be registered with the Department of Industrial Relations in accordance with California Labor Code Section 1725.5 and has provided proof of registration to City prior to the Effective Date of this Agreement.

CONTRACTOR shall not perform work with any Sub- CONTRACTOR that is not registered with DIR pursuant to Section 1725.5. CONTRACTOR and Sub- CONTRACTORs shall maintain their registration with the DIR in effect throughout the duration of this Agreement. If the CONTRACTOR or any Sub- CONTRACTOR ceases to be registered with DIR at any time during the duration of the project, CONTRACTOR shall immediately notify City.

4. Pursuant to Labor Code Section 1771.4, CONTRACTOR’s Services are subject to compliance monitoring and enforcement by DIR. CONTRACTOR shall post job site notices, as prescribed by DIR regulations.

5. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. CONTRACTOR acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and CONTRA CTOR shall post such rates at each job site covered by this Agreement.

6. CONTRACTOR shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The CONTRACTOR shall, as a penalty to City, forfeit $200.00 for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by CONTRACTOR or by any Sub-CONTRACTOR.

7. CONTRACTOR shall comply with and be bound by the provisions of Labor Code Section 1776, which requires CONTRACTOR and each Sub -CONTRACTOR to: keep accurat e payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform City of the location of the records.

8. CONTRACTOR shall comply with and be bound by the provisions of Labor Code seq. concerning the employment of apprentices on public works projects.

CONTRACTOR shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, CONTRACTOR shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within 60 days after concluding work pursuant to this Agreement, CONTRACTOR, and each of its Sub - CONTRACTORs shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement.

9. The CONTRACTOR shall not perform Work with any Sub- CONTRACTOR that has been debarred or suspended pursuant to California Labor Code Section 1777.1 or any other federal or state law providing for the debarment of CONTRACTORs from public works. The CONTRACTOR and Sub- CONTRACTORs shall not be debarred or suspended throughout the duration of this Contract pursuant to Labor Code Secti on 1777.1 or any other federal or state law providing for the debarment of CONTRACTORs from public works. If the CONTRACTOR or any Sub- CONTRACTOR becomes debarred or suspended during the duration of the project, the CONTRACTOR shall immediately notify City.

10. CONTRACTOR acknowledges that eight hours labor constitutes a legal day’s work. CONTRACTOR shall comply with and be bound by Labor Code Section 1810.

CONTRACTOR shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The CONTRACTOR shall, as a penalty to City, forfeit $25.00 for each worker employed in the performance of this Agreement by the CONTRACTOR or by any Sub- CONTRACTOR for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work perfo rmed by employees of CONTRACTOR in excess of eight hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight hours per day at not less than one and one- half times the basic rate of pay.

11. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, CONTRACTOR hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and I wi ll comply with such provisions before commencing the performance of the work of this contract.”

12. For every Sub- CONTRACTOR who will perform work on the project, CONTRACTOR shall be responsible for such Sub-CONTRACTOR’s compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and CONTRACTOR shall include in the written contract between it and each Sub- CONTRACTOR a copy of those statutory provisions and a requirement that each Sub- CONTRACTOR shall comply with those statutory provisions. CONTRACTOR shal l be required to take all actions necessary to enforce such contractual provisions and ensure Sub- CONTRACTOR’s compliance, including without limitation, conducting a periodic review of the certified payroll records of the Sub-CONTRACTOR and upon becoming

aware of the failure of the Sub- CONTRACTOR to pay his or her workers the specified prevailing rate of wages. CONTRACTOR shall diligently take corrective action to halt or rectify any failure.

13. To the maximum extent permitted by law, CONTRACTOR shall indemnify, hold harmless and defend (at CONTRACTOR’s expense with counsel reasonably acceptable to City) City, its officials, officers, employees, agents and independent CONTRACTORs serving in the role of City officials, and volunteers from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed above by any person or entity (including CONTRACTOR, its Sub-CONTRACTORs, and each of their officials, officers, employees and agents) in connection with any work undertaken or in connection with the Agreement, including without limitation the payment of all consequential damages, attorneys’ fees, and other related costs and expenses. All duties of CONTRACTOR under this Section shall survive the termination of the Agreement.
[END OF EXHIBIT “C”]

ITEM # 14

CITY OF MONTEBELLO

CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA STAFF REPORT

TO:

Honorable Mayor and City Council Members
FROM:

René Bobadilla, P.E., City Manager
BY:

Adrianna Kendricks, Director of Transportation
SUBJECT: APPROVE REVISIONS TO THE CITY OF MONTEBELLO
ADMINISTRATIVE POLICY V-B-38.02 – FEDERAL DRUG AND

ALCOHOL REGULATIONS (FTA), TO UPDATE ADMINISTRATIVE

PERSONNEL, TITLES, AND FUNCTIONS

DATE: December 14, 2022

RECOMMENDATION(S):

It is recommended that the City Council:

1. Approve revisions to the City of Montebello Administrative Policy V-B-38.02 – Federal Drug and Alcohol Regulations (FTA) (Administrative Policy V-B-38.02), to update administrative personnel, titles, and functions; and

2. Take such additional, related, action that may be desirable.

FISCAL IMPACT:

There is no fiscal impact related to the recommended action. The City of Montebello operates Montebello Bus Lines (MBL) to provide fixed route transportation services to the City and surrounding communities. As a recipient of local, state, and federal funding, the City is required to comply with state and federal regulations including, but not limited to: the Department of Transportation (DOT) Title 49 CFR Part 40 – Procedures for Transportation Workplace Drug and Alcohol Testing Programs, Federal Transit Administration (FTA) Title 49 CFR Part 655 – Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations, the Drug-Free Workplace Act of 1988, and California Government Code Sections 8350, et seq.

CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF DECEMBER 14, 2022

BACKGROUND/DISCUSSION:

The FTA requires employers that are eligible to receive financial assistance from the FTA, and the contractors of those employers, to implement programs that are designed to help prevent accidents, injuries, and fatalities resulting from the misuse of alcohol and use of prohibited drugs by employees who perform safety-sensitive functions in accordance with Title 49 CFR Part 655. On November 14, 2012, the City Council of the City of Montebello approved Administrative Policy V-B-38.02, which outlines federal drug and alcohol regulations and applies to all MBL employees who perform safety-sensitive functions as defined by the FTA. On July 11, 2018, Administrative Policy V-B-38.02 was revised to clarify language and conform to the regulatory amendments made to Part 40 and Part 655. It is recommended that changes be made to Administrative Policy V-B-

38.02 in order to update the program contact person, update safety-sensitive classification job titles, remove the classification of "Manager Transit Police" from the safety-sensitive job classification list, and remove “Carrying a firearm for security purposes” from the safety-sensitive functions list (see Attachment A).

ENVIRONMENTAL:

N/A

ANALYSIS:

N/A

SUMMARY:

Staff recommends that the City Council approve revisions to Administrative Policy V-B-

38.02, to update administrative personnel, titles, and functions in compliance with federal regulations; and take such additional, related, action that may be desirable.

ATTACHMENT(S)

1. Attachment A - VB-38.02 Federal Drug and Alcohol Regulations (FTA)

NEXT STEPS:

N/A

1 | P a g e
Revised: 12/14/22
CITY OF MONTEBELLO: NUMBER: V-B-38.02
ADMINISTRATIVE POLICY: DATE: 11/14/2012
SUBJECT: FEDERAL DRUG AND ALCOHOL REGULATIONS (FTA)

POLICY STATEMENT
The City of Montebello (hereinafter referred to as “the City”) Transportation Department in operating the Montebello Bus Lines (“MBL” herein) is dedicated to providing safe, dependable, and efficient transportation services to our customers. We recognize that our safety-sensitive employees’ use of illegal drugs and misuse of alcohol poses a significant risk to public safety, as well as the employee’s health and well-being. In view of this, the City has adopted this Policy (“Policy” herein) for MBL that is designed to:

Create a work environment free from the adverse effects of drug abuse, alcohol misuse, and use of impairing prescription or over-the-counter drugs; deter and detect employees’ use of illegal drugs and misuse of alcohol; prohibit the unlawful manufacture, distribution, dispensation, possession, or use of controlled substances; encourage employees to seek professional assistance anytime personal problems, including drug or alcohol dependency, adversely affect their ability to safely perform their assigned duties; and discipline employees who violate the Policy, up to and including termination.

PURPOSE:

To assure employee fitness for duty and to protect our employees, passengers, and the public from the safety and health risks posed by the misuse of alcohol and use of prohibited drugs. This Policy is intended to comply with all applicable State and Federal regulations governing workplace anti-drug use and alcohol misuse programs in the transportation industry. They include the regulations promulgated by the U.S.

Department of Transportation (“DOT”) and the Federal Transit Administration (“FTA”), and include the following: DOT 49 CFR Part 40, as amended (“Procedures for Transportation Workplace Drug and Alcohol Testing Programs”) (hereinafter referred to as “Part 40”); FTA 49 CFR Part 655, as amended (“Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations”) (hereinafter referred to as “Part 655”); (“Drug-Free Workplace Act of 1988”); and California Government Code

ADMINISTRATIVE POLICY: NUMBER: V-B-38.02
SUBJECT: FEDERAL DRUG AND ALCOHOL REGULATIONS (FTA)
Revised: 12/14/22 P a g e | 2
Sections 8350 et seq. (“Drug-Free Workplace Act of 1990”). This Policy incorporates the requirements of above regulations for safety-sensitive employees.

NOTE:

Additional requirements and/or disciplinary actions established under the MBL authority are entered in bold-faced type. Requirements of the Drug-Free Workplace Act (DFWA) are in Italics.

APPLICATION:

This Policy applies to all employees of MBL defined as “safety-sensitive” under the FTA regulations (Part 655); see also Section D herein. It applies to off-site lunch periods or breaks when an employee is scheduled to return to work or is on-call. Visitors, invitees, and vendors also are prohibited from entering the premises and from conducting any work on behalf of the City when illegal substances are present in their system, or the odor of alcohol is present on their breath. In addition, this Policy applies to contractors who have employees performing safety-sensitive functions on City vehicles and/or property.

POLICY:

A. PRE-EMPTION OF STATE AND LOCAL LAW
If any conflict occurs between State and local laws and any requirement of the above-mentioned Federal regulations, the Federal regulations shall prevail. However, Federal regulations do not pre-empt provisions of State criminal laws that impose sanctions for reckless conduct attributed to prohibited drug use or alcohol misuse, whether the provisions apply specifically to transportation employees, employers, or the public in general.

B. EDUCATION AND TRAINING
The education and ongoing awareness component of this Policy will include display of posters, distribution to all covered employees and representatives of employee organizations of the drug and alcohol policy and other informational materials, and periodic information seminars. Each employee will be required to sign an acknowledgment form indicating that they have received a copy of the current policy.

As required by FTA regulations, the City will provide to all safety-sensitive employees a minimum of sixty (60) minutes of training on the effects and

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SUBJECT: FEDERAL DRUG AND ALCOHOL REGULATIONS (FTA)
Revised: 12/14/22 P a g e | 3
consequences of prohibited drug use on personal health, safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug use.

Supervisors or company officials who are authorized to make reasonable suspicion testing referrals shall receive sixty (60) minutes of training on the physical, behavioral, and performance indicators of probable drug use, and at least sixty (60) minutes of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse.

C. CONTACT PERSON
Any questions about this Policy or any aspect of the company’s drug- and alcohol-free program should be referred to the following:

Timothy Grensavitch Adrianna Kendrick
Drug and Alcohol Program Manager (DAPM)
400 South Taylor Avenue,
Montebello, CA 90640
Phone Number: (323) 558-1625 ext. 203
Email: [email protected]
D. COVERED EMPLOYEES
As a condition of employment, safety-sensitive employees are required to submit to drug and alcohol tests administered in accordance with 49 CFR Parts 40 and 655, as amended. A refusal to submit to a test as directed will carry the same consequences as a positive test result as stated in this Policy. (Please refer to Appendix B for specific circumstances or behaviors that are considered a refusal to test.) As defined by the FTA, “safety-sensitive employees” include those who perform, or may be called upon to perform, the following safety-sensitive functions:
i. Operating a revenue service vehicle, even when it is not in revenue service;
ii. Operating a non-revenue service vehicle when required to be operated by a Commercial Driver’s License (CDL) holder; iii. Controlling dispatch or movement of a revenue service vehicle;

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Revised: 12/14/22 P a g e | 4
iv. Maintaining (including repairs, overhaul and rebuilding) a revenue service vehicle or equipment used in revenue service.

Supervisors are considered safety-sensitive only if they perform, or may be called upon to perform any of the above safety-sensitive functions.

MBL has analyzed actual job duties performed, or may be called upon to perform, by all of its employees and has determined that the job classifications listed below are considered “safety-sensitive” for the purposes of this Policy.
Bus Operator
Transit Dispatch Supervisor
Transit Operations Supervisor
Transit Assistant Manager
Transit Operations Manager
Equipment Mechanic A
Equipment Service Worker
Body Shop Mechanic
Shop Maintenance Supervisor
Vehicle Maintenance Supervisor
Manager Transit Police
Fleet Service Supervisor
Fleet Maintenance Supervisor
E. DRUGS (OR THEIR METABOLITES) TESTED FOR:
Marijuana
Cocaine
Opioids
Codeine
Morphine
Heroin (6-AM)
Hydrocodone
Hydromorphone
Oxycodone

ADMINISTRATIVE POLICY: NUMBER: V-B-38.02
SUBJECT: FEDERAL DRUG AND ALCOHOL REGULATIONS (FTA)
Revised: 12/14/22 P a g e | 5
Oxymorphone Amphetamines
Amphetamine
Methamphetamine
MDMA (methylenedioxymethamphetamine)
MDA (methylenedioxyamphetamine) Phencyclidine (PCP)
F. PROHIBITED BEHAVIORS
Illegal Drugs: The prohibited drugs listed in Section E are illegal and employees are prohibited from consuming any of them at all times. All covered employees are prohibited from reporting for duty or remaining on duty any time there is a quantifiable presence of a prohibited drug in the body at or above the minimum thresholds defined in Part 40. Employees may be tested for illegal drugs anytime they are on duty or subject to duty.

Prescription or Over-the-Counter Medications: MBL recognizes the safety risks associated with employee use of certain prescription and over-the-counter medications that affect work performance. Under this Policy, the appropriate use of legally prescribed drugs and non- prescription medications is not prohibited. However, the use of medications that cause drowsiness or fatigue, or those that carry warning labels which caution against the operation of machines, heavy equipment, or automobiles, is strictly prohibited while performing safety-sensitive work. Covered employees are required to notify their manager or supervisor regarding the use of such medication, and may not perform any safety-sensitive function, if their medication carries a warning label that mental functioning, motor skills or judgment may be adversely affected. The only exception to this is if the medication is being used in accordance with the instructions of a physician who has provided a written determination that the substance will not adversely affect the employee’s ability to safely perform safety-sensitive duties.

The employee must then provide his or her manager or supervisor with a copy of the medical authorization. While observing confidentiality rules with regards to medical information and records, MBL will make the final determination whether or not to allow the employee to perform any safety-sensitive work, or require the employee to see a company- approved physician.

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The employee is responsible for describing his or her safety-sensitive duties to the physician and obtaining from an appropriate medical professional information on whether or not the drug might impair his or her ability to perform his or her duties safely and effectively. If possible, employee must ask for alternative medicine, dosage or schedule that does not jeopardize safety.

A prescription is considered valid only if it is in writing and indicates the employee’s name, date, the name of the medication, quantity or amount to be taken, dosage, frequency, method of administration, and refills (if any).

Alcohol: Safety-sensitive employees are prohibited from consuming alcohol in any form:
While performing safety-sensitive functions (see Section D) Within four (4) hours prior to performing safety-sensitive functions While they are on call
Within eight (8) hours following an accident requiring a post-accident alcohol test, unless the test was completed within 8 hours.

Alcohol tests are conducted only just before, during, or just after the employee’s performance of a safety-sensitive function. If a covered employee's alcohol test result is equal to or greater than 0.02 but less than 0.04, the employee will be immediately removed from duty, referred to a substance abuse counselor, and, under City authority, will be subject to suspension without pay for five (5) days. The employee will not be allowed to return to safety sensitive duties until he or she completes the return-to-duty process prescribed by the substance abuse counselor. An alcohol test result of 0.04 or above will result in immediate removal from safety-sensitive duties, referral to at least two (2) SAPs, and disciplinary action as described in Section L Consequences of.

G. TYPES OF TESTING
PRE-EMPLOYMENT TESTING:

Candidates for employment in safety-sensitive positions, or any employee transferring from a non-safety-sensitive to a safety-sensitive position, will be required to undergo a pre-employment drug test at a time and place designated

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Revised: 12/14/22 P a g e | 7
by MBL. A verified negative drug test result must be received by MBL before an employee or candidate can be allowed to perform any safety-sensitive function for the first time. If a pre-employment test is canceled, the individual will be required to undergo another test and successfully pass the test.

Subject to the candidate’s written consent, MBL will check on the drug and alcohol testing background of candidates and employees being considered for final selection into any safety-sensitive position within MBL. This information will be obtained from the individual’s previous DOT employer(s) within the last two years. If the individual refuses to provide the written consent, he or she will not be hired into the safety-sensitive position. In addition, if the individual has had a positive DOT pre-employment drug or alcohol test, or has refused such a test within the last two years, he or she will not be hired until and unless the individual has provided a documentation of successful completion of the return-to-duty process, which includes referral to at least two DOT-qualified SAPs, evaluation and treatment plan. (See also, Section M herein) An employee who has not performed any safety-sensitive function for at least 90 consecutive calendar days (regardless of the reason) and has been out of the random pool during that period must pass a pre-employment drug test before he or she is allowed to return to safety-sensitive work.

REASONABLE SUSPICION TESTING:

Whenever a supervisor (or other MBL official) has reason to believe that a covered employee has used a prohibited drug and/or engaged in alcohol misuse, reasonable suspicion testing will be conducted. The referral will be made by a trained supervisor or company official based on the specific, contemporaneous, and articulable observations concerning the appearance, behavior, speech, or body odors of the employee. The supervisor/official who makes the referral need not be the employee’s own supervisor, as long as he or she has received training in detecting the signs and symptoms of drug use and alcohol misuse. The supervisor’s observations will be documented and such documentation shall be kept in the employee’s confidential drug and alcohol testing file.

A reasonable suspicion alcohol test will be conducted only if the reasonable suspicion observation is made just before, during, or just after the employee’s performance of safety-sensitive function. If the alcohol test is not conducted within two hours, reason for the delay must be documented and kept in the

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SUBJECT: FEDERAL DRUG AND ALCOHOL REGULATIONS (FTA)
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employee’s reasonable suspicion test file. All attempts to complete the alcohol test must cease after eight hours.

Once a supervisor or company official has made a reasonable suspicion determination, he or she must remove the employee from performing any safety-sensitive functions and arrange to have the employee accompanied to the testing site immediately. A supervisor or company official will remain with the employee at the testing site until all tests are completed. While awaiting test results, the employee shall remain on paid status in accordance with the employee’s regular work schedule, unless the employee is suspended for any additional purposes concurrent with the waiting of the test results. An employee whose drug test and/or alcohol test produces a negative result shall be promptly returned to his or her regular work.

POST-ACCIDENT TESTING:

Any covered employee operating a public transportation vehicle at the time of an accident shall be required to submit to drug and alcohol tests as soon as practicable after the accident. For purposes of this Policy, “accident” is defined as an accident involving a public transportation vehicle where the result is:

An individual dies;
An individual suffers a bodily injury and immediately receives medical treatment away from the scene;
The public transportation vehicle (if bus, electric bus, van, or automobile) or any other vehicle(s) involved in the accident suffers a disabling damage as a result of the accident and is transported away from the scene by a tow truck or other vehicle; or the public transportation vehicle (if rail car, trolley car, is trolley bus, or vessel) removed from revenue service.

FATAL ACCIDENTS:

Whenever there is a loss of human life, any surviving employee operating the company vehicle at the time of the accident shall be tested for drugs and alcohol. Any safety-sensitive employee not in the vehicle but whose performance could have contributed to the accident also shall be tested.

NON-FATAL ACCIDENTS:

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Following non-fatal accidents, the employee operating the vehicle at the time of the accident shall be tested unless his or her performance can be completely discounted as a contributing factor to the accident. Any other safety-sensitive employee whose performance could have contributed to the accident also shall be tested.

OTHER POST-ACCIDENT TESTING REQUIREMENTS:

Employees involved in an accident that requires testing must remain readily available for testing, including notifying MBL of their location if they leave the scene of the accident before testing to obtain emergency medical care, or to obtain assistance in responding to the accident. They will be considered to have refused to submit to testing if they fail to do so.

Employees are prohibited from using alcohol for eight hours following an accident or until the post-accident testing is completed, whichever occurs first.

Every effort will be made to conduct alcohol testing within two hours after the accident. In the event the alcohol test is delayed beyond two hours, MBL will prepare and maintain a record stating the reason(s) for the delay. If an alcohol test is not administered within eight hours following the accident, MBL will cease all efforts to administer the test and document the reason for the inability to test. In the event a drug test is not administered within 32 hours from the time of the accident, MBL will cease all attempts to administer the drug test and document the reason for the inability to test. This requirement should not be construed to delay the necessary medical attention for injured people following the accident.

If MBL is unable to perform post-accident tests within the required period of compliance, MBL will use the post-accident test results administered by Federal, State, or local officials under their own authority, provided the test conforms to the applicable testing requirements and the results are obtained by MBL.

Following a post-accident test, the Drug and Alcohol Program Manager (DAPM) will determine whether or not the employee is allowed to perform any safety-sensitive duties while waiting for test results (i.e. serious or fatal accident.) If the employee is not allowed to perform any safety-sensitive function, the employee shall remain on paid status while awaiting test results in accordance with the employee’s regular work schedule, unless the employee is suspended for any additional purpose

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concurrent with the waiting of the test results. An employee whose drug test and/or alcohol test produces a negative result shall be promptly returned to his or her regular work.

RANDOM TESTING:

Safety-sensitive employees are required to undergo random drug and alcohol tests to deter use of prohibited drugs and misuse of alcohol. The random selection will be conducted using a scientifically valid method, such as a random number table or a computer-based random number generator which gives each covered employee an equal chance of being selected every time a selection is made. As is the nature of the random method, it is possible that some employees will be selected several times in one year, and other employees not for several years. Management does not have any discretion on who will be selected.

A covered employee shall only be randomly tested for alcohol misuse while the employee is performing safety-sensitive functions, just before, or just after the performance of such functions. Random testing for drugs may occur anytime the employee is on duty.

Every effort will be made by MBL to spread random testing reasonably throughout the calendar year, all days of the week, and all hours when safety- sensitive functions are performed. The testing dates and times are unannounced and employees are required to immediately proceed to the designated collection site following notification.

MBL will conduct random drug and alcohol tests at a minimum annual percentage of covered employees as required by the FTA. The rates are subject to change on an annual basis, depending on the industry-wide positive rate determined by the FTA from the annual Drug & Alcohol Management Information Systems (“DAMIS”) reports submitted by covered employers.

RETURN-TO-DUTY TESTING:

MBL has a “zero tolerance” policy. In the unusual event that an employee who has refused a required test, has a verified positive, adulterated or substituted drug test result, or tests for alcohol at 0.04 or greater, is allowed to return to safety-sensitive duties, he or she must first complete the return-to- duty process. This includes evaluation by a SAP, successful completion of the rehabilitation, treatment or education program outlined by the SAP, and

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obtaining a verified negative return-to-duty drug test and/or alcohol test under

0.02. All Return-to-Duty drug tests will be conducted under direct observation.

If the alcohol test result is 0.02 or above but below 0.04, under the City's own authority, the employee will be referred to a substance abuse counselor and the return-to-duty tests will be conducted as non-DOT using non-Federal or non-DOT testing forms. Under the City’s own authority, employees who are allowed to return to work after a policy violation will be required to sign a Re-entry Agreement (See Appendix A).

FOLLOW-UP TESTING: In addition to the Return-to-Duty test described above, an employee who previously tested positive for drugs or alcohol, or refused to take a required test (including MRO reports of adulteration or substitution), shall be subject to follow-up testing for drugs and/or alcohol, as prescribed by the SAP or the substance abuse counselor, for a minimum period of 12 months to a maximum of five years. The employee shall undergo at least six follow-up tests during the first 12 months of his or her return to work. Although they are both unannounced, follow-up testing is apart and separate from random testing. The duration and frequency of testing will be designated by the SAP or the substance abuse counselor, but the actual follow-up testing dates will be decided by the employee’s manager or supervisor. Like Return-to-Duty tests, all Follow-Up drug tests will be conducted under direct observation. Follow-up alcohol tests will be performed only during, just before, or just after the performance of safety-sensitive duties.

Follow-up testing after an alcohol violation of 0.02 or above but below

0.04 will be conducted as non-DOT tests under the City's own authority.

H. DRUG & ALCOHOL TESTING PROCEDURES
All DOT drug and alcohol tests required under this Policy will be administered in accordance with the “Procedures for Transportation Workplace Drug and Alcohol Testing Programs” (Part 40), as amended.

Prior to the test, the employee must present a government-issued or employer- issued photo ID (e.g., driver’s license or employee ID) for proper identification. Throughout the testing process, the privacy of the employee will be protected and the integrity and validity of the process will be maintained.

The drug testing procedure will include a split specimen collection method and

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use of a federal Custody and Control Form with a unique identification number to ensure that the correct test result is attributed to the correct employee. An initial screening test using an immunoassay technique will be performed. If the specimen is positive for one or more of the drugs tested, then a confirmation test will be performed using a state-of-the-art confirmatory method authorized in Part 40. If the test is confirmed positive, the MRO will conduct a verification process, which includes giving the employee an opportunity to provide a valid medical explanation for the positive test result.

Additionally, the laboratory will conduct specimen validity testing to determine if a urine specimen has been adulterated, substituted, or diluted. If the MRO reports a “negative-dilute” test result, MBL will direct the employee to take a second test with no advance notice, and depending on the creatinine level reported by the laboratory to the MRO, the second collection may be directly observed. Should the second test result in a negative dilute result, the test will be considered a negative and no additional testing will be required unless directed to do so by the MRO. The result of the second test will be the test of record.

If the laboratory reports to the MRO an “Invalid Result” or “Rejected for Testing” (because of a fatal or uncorrectable flaw), a recollection may be required by the MRO, and depending on the circumstances, the recollection may be directly observed.

Tests for alcohol concentration will be conducted using an alcohol screening device and an evidential breath testing (EBT) device if the screen test is at 0.02 BAC or greater. A DOT Alcohol Testing Form will be used and a unique sequential number will be assigned to each test.

Detailed drug and alcohol specimen collection procedures are available upon request from the Contact Person identified in Section C of this Policy.

I. DIRECTLY- OBSERVED URINE SPECIMEN COLLECTION
Under the following circumstances, the employee will be directed to undergo an immediate urine specimen collection under direct observation with no advance notice:
If the laboratory reported to the MRO that a specimen is invalid and there was no adequate medical explanation for the result

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If the MRO reported that the original positive, adulterated, or substituted test result had to be canceled because the split specimen testing could not be performed
If the drug test is a return-to-duty or a follow-up test If the collector observes materials brought to the collection site or employee conduct that clearly indicates an attempt to tamper with a specimen
If the temperature on the original specimen was out of range If the original specimen appeared to have been tampered with If the previous specimen was negative dilute with creatinine between 2 to 5 mg/dl
The observer shall be the same gender as the employee, but need not be a trained collector. Prior to the collection, the observer must request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; lower clothing and underpants; and to turn around to show the observer that he or she is not wearing any type of prosthetic or other device that could be used to interfere with the collection process. If none is observed, the employee may return clothing to its proper position for observed urination.

The observer is responsible for ensuring that the specimen goes from the employee’s body into the collection container. If the employee declines to allow a directly observed collection when required or permitted under this Policy, it is considered a refusal to test.

J. MONITORED URINE SPECIMEN COLLECTION
Under those circumstances when a multi-stall restroom has to be used for urine specimen collection and the facility cannot be adequately secured, the collector will conduct a monitored collection. The monitor shall be the same gender as the employee, unless the monitor is a medical professional. The monitor will not watch the employee void into the collection container. However, if the monitor hears sounds or observes attempts to tamper with a specimen, an additional collection under direct observation will be ordered. If the employee declines to permit a collection authorized to be monitored, it is considered a refusal to test.

K. SPLIT SPECIMEN TESTING

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After notification by the MRO of a verified positive drug test or refusal to test because of adulteration or substitution, the employee has 72 hours to request (verbally or in writing) a test of the split specimen. (Note: Effective 8/25/08, there is no split specimen testing allowed for an invalid test result.) After 72 hours have passed, the request can be considered only if the employee can present to the satisfaction of the MRO information that unavoidably prevented the employee from making a timely request.

Following the employee’s timely request, the MRO shall send a written request to the primary laboratory to forward the split specimen to a second DHHS- certified laboratory for testing without regard to the cut-off concentration. If the second laboratory fails to reconfirm the substance detected in the primary specimen or the adulterant identified, or if the split specimen is unavailable for testing, the test shall be canceled. The MRO shall report the cancellation and the reasons for it to the DOT, the DER, and the employee. In the case of the split specimen being unavailable, the employee shall be directed, with no advance notice, to submit another specimen under direct observation.

L. CONSEQUENCES
As required by FTA regulations, any safety-sensitive employee who has a verified positive drug and/or alcohol test result at 0.04 or above, or refuses to submit to a drug or alcohol test (including adulteration or substitution) shall be:

1. Immediately taken out of safety-sensitive duty; and

2. Referred to at least two (2) SAPs for evaluation, education or treatment and provided educational materials.

FTA regulations allow individual employers to determine the discipline to be imposed on employees who violate the Federal regulations or employer policy.

Under the City of Montebello Transportation Department policy, employees who test positive for drugs or alcohol at 0.04 or above, or refuse a required test, are subject to termination. Such disciplinary action will follow the FTA required actions outlined above.

In addition, under City authority, any covered employee who has an alcohol test result between 0.02 and 0.04, for the first time, will be immediately removed from duty, referred to a substance abuse counselor, and subject to suspension without pay for five (5) days. The employee will not be allowed to return to safety sensitive duties until he

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or she completes the return-to-duty process prescribed by the substance abuse counselor. If the employee again receives a test result for alcohol at 0.02 or above, under any circumstance, he or she will be subject to immediate termination. Any requirement for an employee to be retested or to see a substance abuse counselor will be done on the employee’s own time.

M. REFERRAL, EVALUATION AND TREATMENT
If an employee (including an applicant) tests positive for drug(s) or alcohol at .04 or above, or refuses to submit to a test when required, MBL shall advise the individual of the resources available for evaluating and resolving problems associated with prohibited drug use and alcohol misuse and document such referral. He or she shall be given the names, addresses and phone numbers of at least two DOT-qualified Substance Abuse Professionals (SAPs) or substance abuse counselors (SACs) acceptable to the City.

For existing employees, MBL will pay for the cost of the initial evaluation as long as the employee meets with the SAP or SAC within 30 days of referral.

All other costs related to the SAP or SAC recommendation, such as rehabilitation, treatment and/or education shall be the responsibility of the employee.

N. CONFIDENTIALITY AND ACCESS TO FACILITIES AND RECORDS Employees have a right to examine their own drug and alcohol testing records, provide information to dispute the results, and have access to any pertinent data such as EBT calibration or drug testing laboratory certification. They also have a right to obtain a copy of their own drug and/or alcohol testing results by submitting a written request to the Contact Person identified in Section C of this Policy.

MBL will do everything possible to safeguard the confidentiality of drug and alcohol testing records and medical information obtained in accordance with this Policy. Individual test results or medical information will be released to third parties (e.g., previous employers or union representatives) only with the employee’s specific written consent, or to those parties authorized by the DOT or FTA to receive such information without the employee’s written consent.

Specific written consent applies only to a particular piece of information

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released to a particular person or organization at a particular time. Blanket releases are specifically prohibited by DOT.

The employee’s written consent is not required in administrative or legal proceedings such as:

A lawsuit, grievance, or administrative proceeding brought by, or on behalf of the employee, resulting from a positive drug or alcohol test or a refusal to test; or
A criminal or civil action resulting from an employee’s performance of safety- sensitive duties where the alcohol or drug test information is deemed relevant.

Access to the MBL facilities and drug and alcohol program records also must be provided, without the employee’s consent, to DOT or FTA agency representatives; the National Transportation Safety Board as part of an accident investigation; a Federal, state or local safety agency with regulatory authority over MBL or the employee; or State or grantee required to certify to FTA compliance with 49 CFR Part 655 and Part 40.

In addition, DOT has adopted a rule authorizing employers and Third Party Administrators (TPAs) to disclose to state commercial driver licensing (CDL) authorities the drug and alcohol violations of employees who hold commercial driver licenses (CDLs) and operate commercial motor vehicles (CMVs), when a State law requires it.

O. DRUG-FREE WORKPLACE ACT of 1988 (DFWA) REQUIREMENTS
Under the DFWA, employees are prohibited from the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in the workplace. Employees are required to notify management in writing of any criminal drug statute convictions he/she receives for a violation occurring in the workplace, no later than five calendar days after such a conviction. Within 10 calendar days of receiving such notice, the City shall provide written notification of the conviction to the FTA. Within 30 calendar days of receiving notice of the conviction, the City shall take appropriate disciplinary action, or require the employee to participate and successfully complete a drug rehabilitation program. Law enforcement shall be notified, as appropriate, where criminal activity is suspected.

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Appendix A

RE-ENTRY TO WORK
A.After Mandatory Referral
Following successful completion of the rehabilitation and/or education program prescribed by the SAP, an employee who is given an opportunity to return to work must agree to the terms of a “Re-entry Agreement,” the terms of which shall be established by the City of Montebello at its sole discretion. That Agreement may include, but is not limited to, the following:

1. A release to work statement from an approved treatment specialist, as well as from the SAP.

2. A plan, designed by the SAP, setting out after-care (if any) and follow-up testing, the frequency and duration of which shall be established by the SAP.

3. A negative return-to-duty test for drugs and alcohol.

4. A statement of expected work-related behaviors.

5. Specific agreement by the employee that violation of the Re-entry Agreement will be grounds for termination.

Failure to successfully complete a treatment and/or education program or to comply with the re-entry agreement, or any positive drug or alcohol test after re-entry shall be grounds for termination.

B. After Voluntary Referral

1. Employees who voluntarily enter a substance abuse treatment program without taking a leave of absence will not require a Re-entry Agreement since the employee never left work.

2. Employees who voluntarily enter a substance abuse treatment program and request a leave of absence, with or without pay, must:
a.Submit a Release to Work from the City’s MRO or substance abuse counselor as designated by the City; and
b. Pass a non-DOT Return-to-Duty alcohol and drug test
(under City authority) before being allowed to return to safety- sensitive work.

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Appendix B

DEFINITIONS
Adulterated Specimen:

A specimen that has been altered, as evidenced by test results showing either a substance that is not a normal constituent for that type of specimen or showing an abnormal concentration of an endogenous substance.

Alcohol Use:

The drinking or swallowing of any beverage, liquid mixture or preparation (including any medication) containing alcohol. For purposes of this Policy, alcohol is alcohol regardless of source.

Alcohol Violation:

Under DOT and FTA rules, the presence of alcohol in the body at a concentration of

0.04 BAC or greater as measured by an EBT device. An alcohol test result at or above

0.02 but below 0.04 is a violation of the policy under the City's authority.

BAC:

Breath Alcohol Concentration, expressed in terms of grams of alcohol per 210 liters of breath.

Breath Alcohol Technician (BAT):

An individual who instructs and assists employees in the alcohol testing process and operates an Evidential Breath Testing (EBT) device.

Canceled Test:

A drug or alcohol test that has a problem identified that cannot be or has not been corrected, or which Part 40 requires to be canceled. A canceled test is neither a positive nor a negative test.

Collector:

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A person who instructs and assists individuals at a collection site, who receives and makes an initial inspection of the specimen provided by the individual, and who initiates and completes the Custody and Control Form (CCF).

Controlled Substances:

Any drug classified by the U.S. Drug Enforcement Agency (DEA) into the five schedules or classes on the basis of their potential for abuse, accepted medical use, and accepted safety for use under medical supervision.

Designated Employer Representative (DER):

An employee or employees authorized by the City to take immediate action(s) to remove employees from safety-sensitive duties, or cause employees to be removed from these covered duties, following a positive test, test refusal, or other policy violations.

Dilute Specimen:

A urine specimen with creatinine and specific gravity values that are lower than expected for human urine.

Disabling Damage:

Damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs, including damage to motor vehicles that could have been driven, but would have been further damaged if so driven. “Disabling damage” does not include:

Damage which can be remedied temporarily at the scene of the accident without special tools or parts.

Tire disablement without other damage even if no spare tire is available.

Headlamp or taillight damage.

Damage to turn signals, horn, or windshield wipers which make them inoperative.

DOT:

Department of Transportation.

Drug Abuse:

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Use of any illegal drug or controlled substance without a valid prescription, misuse of legally prescribed drugs, or use of illegally obtained prescription drugs. This includes use of prescription drugs legally prescribed to another individual.

Evidential Breath Testing (EBT) Device:

A device that is approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath at the 0.02 and 0.04 alcohol concentrations, and appears on ODAPC’s web page for “Approved Evidential Breath Measurement Devices” because it conforms with the model specifications available from NHTSA.

FTA:

Federal Transit Administration. HHS: Health and Human Services HHS:

Health and Human Services
Invalid Drug Test:

The result reported by an HHS-certified laboratory in accordance with the criteria established by HHS Mandatory Guidelines when a positive, negative, adulterated or substituted result cannot be established for a specific drug or specimen validity test.

Medical Review Officer (MRO):

A licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory drug test results, who has knowledge of substance abuse disorders, and has the appropriate medical training to interpret and evaluate an individual’s confirmed drug and/or validity test results together with the individual’s medical history and any other relevant biomedical information. This individual must meet the qualification requirements under Sec. 40.121 of Part 40.

Non-Negative Specimen:

A urine specimen that is reported as adulterated, substituted, positive for drug(s) or drug metabolite(s), and/or invalid.

Positive Drug Test Result:

The result reported by an HHS-certified laboratory when a specimen contains a drug or drug metabolite equal to or greater than the cutoff concentrations. A refusal to test is equivalent to a positive test result.

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Public Transportation Vehicles:

Vehicles used for public transportation or ancillary non-services (i.e., revenue service commercial motor vehicles that require a commercial driver's license to operate and vehicles used by armed security personnel).

Refusal to Test:

Includes circumstances or behaviors such as:

Failure to appear for any test (except a pre-employment test) at the collection site in the time allotted.

Failure to remain at the testing site until the testing process is completed, except in pre-employment situations where leaving the site before the testing process begins is not deemed to be a test refusal.

Failure to provide a urine, breath, or saliva specimen as required by DOT Part

40. Failure to permit the observation or monitoring of specimen collection when it is required.

Failure to provide a sufficient amount of urine or breathe specimen without a valid medical explanation.

Failure or refusal to take a second test when required.

Failure to undergo a medical evaluation when required. In the case of a pre- employment test, the individual is deemed to have refused to test only if the pre-employment test is conducted following a contingent offer of employment.

Failure to cooperate with the testing process. (Examples: refusal to empty pockets when requested, behaving in a confrontational manner that disrupts the collection process, or failure to wash hands after being directed to do so by the collector)
For an observed collection, failure to follow the observer’s instructions to raise clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine if individual is wearing any type of device that could be used to interfere with the collection process.

Possession or wearing of a prosthetic or other device that could be used to interfere with the collection process.

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Admitting adulteration or substitution of the specimen to the collector or the MRO.

In alcohol testing, refusal to sign Step 2 of the Alcohol Test Form.

Leaving the scene of the accident without just cause prior to submitting to a test.

If the MRO reports a verified adulterated or substituted test result.

Specimen Validity Testing:

A test to determine if a urine specimen is adulterated, diluted, substituted or invalid.

Split Specimen:

In drug testing, a part of the urine specimen that is sent to a first laboratory and retained unopened, and which is transported to a second DHHS-certified laboratory for testing upon employee request following a verified positive or a verified adulterated or substituted test result from the primary specimen.

Subject to Duty:

An employee is considered “subject to duty” under any of the following circumstances:
1) On his or her regularly scheduled duty days prior to sign-on; 2) When reporting for work
3) During any split period between assignments, whether on or off City premises 4) When informed in advance, while on duty, that he or she is expected to be on duty at some point in the future
5) When being tested under the re-entry to work provisions of this Policy.

Substance Abuse Counselor:

A person who evaluates employees who have violated the City's policy by testing positive for drugs or alcohol below 0.04, or refusing a non-DOT test and makes recommendations concerning education, treatment, non-DOT follow-up testing and aftercare. This individual may also be a Substance Abuse Professional as defined in Part 40.

Substance Abuse Professional (SAP):

A person who evaluates employees who have violated a DOT drug and alcohol regulation and makes recommendations concerning education, treatment, follow-up

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testing, and aftercare. In order to be a qualified SAP, the individual must have certain credentials, possess specific knowledge, receive training, and achieve a passing score on an examination, as required under 49 CFR Part 40.281.

Substituted Specimen:

A specimen with creatinine and specific gravity values that are so diminished or so divergent that they are not consistent with normal human urine.

Vehicles:

Includes buses, electric buses, vans, automobiles, rail cars, trolley cars, trolley buses or vessels, non-revenue commercial motor vehicles, and vehicles used by armed security personnel.

ITEM # 15

CITY OF MONTEBELLO

CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA STAFF REPORT

TO:

Honorable Mayor and City Council Members
FROM:

René Bobadilla, City Manager
BY:

Adrianna Kendricks, Director of Transportation
SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT NOS. 4057 AND 4058 WITH OFFICE SOLUTIONS BUSINESS PRODUCTS &
SERVICES LLC, AND MOHAWK COMMERCIAL, INC., TO PURCHASE

AND INSTALL UPGRADED WORKSTATIONS AND FLOORING FOR

THE TRANSPORTATION DEPARTMENT

DATE: December 14, 2022

RECOMMENDATION(S):

It is recommended that the City Council:

1. Approve a Professional Services Agreement, No. 4057, with Office Solutions Business Products & Services, LLC (dba Bluespace Interiors), utilizing the Sourcewell Cooperative Purchasing Program (Sourcewell) Contract No. 121919- TKN, to purchase and install upgraded workstations for the Transportation Department for a total not-to-exceed amount of $128,824; and

2. Approve a Professional Services Agreement, No. 4058, with Mohawk Commercial, Inc. (Mohawk), utilizing the California Multiple Award Schedules (CMAS) Contract No. 4-20-00-0085C, to purchase and install flooring for Transportation, for a total not-to-exceed amount of $49,099; and

3. Authorize the City Manager and/or their designee to approve change orders for up to ten percent (10%) of the total compensation amount for each proposed agreement; and

4. Take such additional, related, action that may be desirable.

FISCAL IMPACT:

CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF DECEMBER 14, 2022

The project cost to upgrade and install workstations and flooring is a total not-to-exceed amount of $195,716, which includes a ten percent (10%) contingency should material costs run higher than anticipated. Funding for this project will be allocated from Transportation’s Fiscal Year 2022-23 adopted operating budget: Transit Operations expense Account No. 600-90-900-6040.95. Therefore, a budget amendment is not needed. A summary of the total project expenditures is shown in the table below:

BACKGROUND/DISCUSSION:

Transportation’s existing office workstations and flooring are over 25 years old, and original to the Transportation Facility (Facility) which was constructed in 1995. The Facility’s office workstations and flooring have exceeded their useful life and require lifecycle replacement as indicated in the City of Montebello’s (City) 2021 Facility Condition Assessment Report. The proposed office workstation layout will optimize Transportation’s limited real estate by providing an ergonomic work environment while including additional workstations to accommodate the growing workforce. Furthermore, the upgraded workstations and flooring will enhance the Facility’s reasonable accommodations in accordance with the Americans and Disability Act (ADA). Each contractor will provide a phase-in installation approach to avoid any disruption to Transportation’s operation. Employee workstations will be temporarily reassigned while remodeling work is being completed.

In recent years, Bluespace Interiors and Mohawk provided professional services to the City’s Administration, Fire, Finance, Police, and Recreation and Community Services Departments for upgraded office workstations that presented exceptional results and improved the workforce’s comfort, efficiency, and productivity. The City will utilize the Sourcewell Contract No. 121919-TKN and CMAS Contract No. 4-20-00-0085C as an approved procurement process in accordance with Montebello Municipal Code (MMC) Section 3.20.125 – “Piggybacking Purchasing Agreement,” as authorized under California Government Code section 54202, to purchase all equipment and labor for this project.

The California Department of General Services’ Procurement Division established the CMAS Program to award and administer CMAS contracts to offer a wide variety of commodity, non-information technology Services, and information technology products and services at prices that have been assessed to be fair, reasonable, and competitive.

Contractor Project
Cost
10%
Contingency
Total
Expenditure
Bluespace
Interiors
$ 128,824

$ 12,883 $ 141,707
Mohawk $ 49,099 $ 4,910 $ 54,009

GRAND
TOTAL $
195,716

CITY COUNCIL AND PUBLIC FINANCING AUTHORITY AGENDA REPORT - MEETING OF DECEMBER 14, 2022

The CMAS Program produces a pool of suppliers that an agency can solicit competitive offers to make the procurement process more efficient. Similarly, the state of Minnesota established Sourcewell as a municipal contracting agency that operates as a public entity comprised of more than 50,000 member agencies throughout the United States.

Sourcewell utilizes cooperative purchasing to develop competitive solicitations that meet or exceed local requirements and holds hundreds of competitively solicited cooperative contracts ready for use by public entities. Substantially, CMAS and Sourcewell enable opportunities to streamline the procurement process and preserve participating agencies’ resources in time, money, and energy. The City is eligible to utilize the CMAS and Sourcewell programs as a government agency.

ENVIRONMENTAL:

N/A

ANALYSIS:

N/A

SUMMARY:

Staff recommends that the City Council consider: (1) approving Professional Services Agreement, No. 4057, attached hereto in substantial form (see Attachment A), with Office Solutions Business Products & Services, LLC (dba Bluespace Interiors), utilizing the Sourcewell Cooperative Purchasing Program Contract No. 121919-TKN, for a total not- to-exceed amount of $128,824; (2) approving Professional Services Agreement, No. 4058, attached hereto in substantial form (see Attachment B), with Mohawk Commercial, Inc., utilizing the California Multiple Award Schedules (CMAS) Contract No. 4-20-00- 0085C, for a total not-to-exceed amount of $49,099; (3) authorize the City Manager and/or their designee to approve change orders for up to ten percent (10%) percent of the total for each proposed agreement; and (4) take such additional, related, action that may be desirable.

ATTACHMENT(S)

1. Attachment A - PSA No. 4057 with Bluespace Interiors

2. Attachment B - PSA No. 4057 with Mohawk Commercial, Inc

NEXT STEPS:

N/A

CITY OF MONTEBELLO
PROFESSIONAL SERVICES AGREEMENT NO. 4057

WITH OFFICE SOLUTIONS BUSINESS PRODUCTS & SERVICES, LLC dba BLUESPACE INTERIORS

THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is made and entered into on December 14, 2022 (“Effective Date”), by and between the CITY OF MONTEBELLO, a California municipal corporation (the “CITY”) and OFFICE SOLUTIONS BUSINESS PRODUCTS & SERVICES, LLC dba
BLUESPACE INTERIORS (the “CONTRACTOR”). The CITY and the CONTRACTOR are sometimes referred to herein individual as the “Party,” and jointly as the “Parties.”

RECITALS

WHEREAS, CITY desires to “piggyback” on an existing contract, as amended, between CONTRACTOR and SOURCEWELL, pursuant to SOURCEWELL Contract No. 121919-TKN “Procurement of furniture solutions with related accessories and services, and executed on February 18, 2020 (hereinafter “Sourcewell Contract No. 121919-TKN”); and

WHEREAS, the CITY desires to retain a qualified professional CONTRACTOR to provide upgraded office workspace furniture for the Transportation Department; and

WHEREAS, the CONTRACTOR represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees; and

WHEREAS, the CONTRACTOR represents the degree of specialized expertise contemplated within California Government Code, Section 37103, and is qualified to perform such services by virtue of its experience and the training, education, and expertise of its principals and employees; and

WHEREAS, no official or employee of the CITY has a financial interest, within the provisions of Sections 1090 – 1092 of the California Government Code, in the subject matter of this Agreement.

NOW THEREFORE, in consideration of performance by the Parties of the covenants and conditions herein contained, the Parties hereto agree as follows:

SECTION 1. INCORPORATION OF RECITALS AND OTHER CONTRACT

DOCUMENTS

A. The above-referenced Recitals constitute a material part hereof and shall hereby be incorporated by reference. Moreover, this Agreement consists of the following documents, in order of precedence, all of which are incorporated herein and made part of this Agreement, as though fully set forth herein:

1. This Agreement and its Exhibits.

2. Sourcewell Contract No.121919-TKN, attached hereto as Exhibit “A”.

3. CONTRACTOR’S Scope of Services and Associated Cost Proposal dated November 9, 2022, attached hereto as Exhibit “B”.

PROFESSIONAL SERVICES AGREEMENT NO. 4057

4. All other documents, including but not limited to all applicable bonds, insurance certificates, permits, notices, schedules, forms, certifications, and affidavits.

B. These documents shall be collectively referred to herein as the “Contract Documents.” In the event of a conflict among the Contract Documents, the order of precedence list above shall apply.

SECTION 2. SERVICES / COMPENSATION.

A. The CONTRACTOR shall provide to the CITY those services that are set forth fully in Contractor’s Proposal, attached hereto as Exhibit “A and B” and incorporated fully herein by this reference (hereinafter “Professional Services”).

B. The CONTRACTOR shall complete the Scope of Services in a timely manner, and in accordance with an agreed-upon work schedule to be determined by the Parties.

C. CONTRACTOR shall be compensated at a sum not-to-exceed One Hundred and Twenty- Eight Thousand, Eight Hundred and Twenty-Four Dollars ($128,824) plus a five percent (5%) contingency sum, for a grand total not- to-exceed sum One Hundred and Thirty- Five Thousand, Two Hundred and Sixty-Six Dollars ($135,266) (the “Maximum Compensation”) for the performance of the Scope of Services as set forth in Exhibit “B”. CONTRACTOR shall provide an itemized billing statement to CITY for the Scope of Services performed. The CONTRACTOR shall not incur fees or costs which exceed the initial Annual Compensation without the prior written consent of the CITY.

D. The CITY will be invoiced upon completion of the Scope of Services set forth herein. Payment in full of an invoice must be received by the CONTRACTOR within thirty (30) days of the date of such invoice.

E. Work performed shall be deemed approved and accepted by the CITY as and when invoiced unless the CITY objects within fifteen (15) days of invoice date by written notice specifically stating the details in which the CITY believes such work is incomplete or defective, and the invoice amount(s) in dispute.

The CITY shall pay undisputed amounts as provided for in the preceding paragraph.

SECTION 3. TERM.

This Agreement shall commence on December 14, 2022, and shall terminate upon completion of the Professional Services; provided such shall be on or before May 31, 2023 (“Date of Completion”), unless such deadline is extended in writing by a further agreement between the Parties or the Agreement is terminated sooner as provided in Section 8 herein. .

SECTION 4. PERFORMANCE.
a. The CONTRACTOR shall at all times, faithfully, competently, and to the best of its ability, experience, and talent, perform all tasks described herein.

b. The CONTRACTOR shall employ, at a minimum, generally accepted standards and practices utilized by companies engaged in providing similar

PROFESSIONAL SERVICES AGREEMENT NO. 4057

services, as are required of CONTRACTOR hereunder, in meeting its obligations under this Agreement.

c. The CONTRACTOR shall be knowledgeable of and subject to all CITY ordinances, rules and regulations, standard operating procedures, and the supervisory chain of command.

d. The CONTRACTOR shall have the right to retain, subject to t h e CITY's approval, additional individuals, contractors or subcontractors to assist in the completion of services as herein defined. Compensation for additional individuals, contractors or subcontractors shall be the sole and exclusive responsibility of the CONTRACTOR.

e. The CONTRACTOR shall retain all original reports, field and office notes, correspondence, calculations, maps, and other documents specifically related to the services provided by the CONTRACTOR pursuant to this Agreement, other than documents which are exempt from disclosure pursuant to the attorney- client privilege or any other law. Said documents shall be made available for inspection by the CITY upon request.

SECTION 5. WORK PRODUCT.

a. The CONTRACTOR hereby agrees that all no n- p r op r iet ar y work product produced pursuant to this Agreement, and provided to the CITY during and upon completion of this Agreement, shall be the property of the CITY, and ownership of said work product shall be retained by the CITY. The CONTRACTOR may take and retain copies of such written p roducts as desired, but no such written products shall be the subject of a copyright application by the CONTRACTOR.

b. All data, documents, discussion, or other information developed or received by the CONTRACTOR or provided for performance of this Agreement are deemed confidential and shall not be disclosed by the CONTRACTOR without prior written consent by the CITY. The CITY shall grant such consent if disclosure is legally required. All such written products shall be returned to the CITY upon the termination or expiration of this Agreement. The CONTRACTOR agrees that the covenants contained in this Section shall survive the expiration or termination of this Agreement.

SECTION 6. EXTRA SERVICES.

No extra services over and above the Compensation shall be rendered by the CONTRACTOR under this Agreement unless such extra services first shall have been duly authorized in writing by the CITY’s City Manager (the “City Manager”).

SECTION 7. CITY SUPERVISION.

The City Manager shall have the right of general supervision of all work performed by the CONTRACTOR and shall be the CITY’s agent with respect to obtaining the CONTRACTOR’s compliance hereunder.

PROFESSIONAL SERVICES AGREEMENT NO. 4057

SECTION 8. TERMINATION.

In the event that either Party hereto fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, the non-defaulting party shall give the defaulting party written notice of the default, the nature of the default, and of the steps necessary to cure the default.

a. Termination for Cause. In the event that any of the provisions of the Agreement are violated by either party, the non-defaulting Party may terminate the Agreement by serving written notice upon the other Party, listing the violation(s) and its intent to terminate such Agreement unless within ten (10) days after the serving of such notice, such violation shall cease or be rectified, the contract shall upon the expiration of an additional thirty (30) days cease and terminate. Violations by the CONTRACTOR which cannot be corrected within ten (10) days, said contract shall at the option of the CITY cease and terminate upon the giving of like notice. In the event of any such termination for default by the CONTRACTOR, the CITY may take over the work and prosecute the same to completion by contract or otherwise for the account and at the expense of the CONTRACTOR. The CONTRACTOR and his sureties shall be liable to the CITY for any excess cost occasioned in the event of any such termination. This change shall not be construed to prevent the termination, for other causes authorized by law or other provisions of this contract.

In the event of a termination for cause, the CONTRACTOR shall only be entitled to the Compensation for those Professional Services satisfactory performed on or before the effective date of termination.

b. Termination for Convenience. The CITY shall have the option, at its sole discretion and without cause, to terminate this Agreement in whole, or in part, by giving ten (10) business days’ written notice to the CONTRACTOR. Upon the termination of this Agreement as provided herein, the CITY shall provide to the CONTRACTOR the part of Compensation which would otherwise be payable to the CONTRACTOR for services the CONTRACTOR had completed as of the date of termination, less the amount of all previous payment with respect to the Compensation. Further, upon such a termination for convenience by the CITY, the Parties agree that the CONTRACTOR shall be reimbursed for any “non- refundable” costs that the CONTRACTOR has incurred for its services under this Agreement, provided that: (1) such “non- refundable” costs were incurred by the CONTRACTOR prior to the date of termination, and (2) that t h e CONTRACTOR provides the CITY with adequate proof that the CONTRACTOR incurred the costs, and is unable to be seek a refund for such costs. Such “non- refundable” costs may include, but are not limited to, travel reservations incurred by the CONTRACTOR for its performance of services under this Agreement. The CONTRACTOR agrees to cease all work under this Agreement on or before the effective date of any notice of termination.

SECTION 9. EMPLOYMENT OF CITY EMPLOYEES.

No regular employee of the CITY shall be employed by the CONTRACTOR during the term of this Agreement.

SECTION 10. NON-LIABILITY OF CITY OFFICIALS AND EMPLOYEES.

No official or employee of the CITY shall be personally liable to the CONTRACTOR in the event of any default or breach by the CITY, or for any amount which may become due to the CONTRACTOR.

PROFESSIONAL SERVICES AGREEMENT NO. 4057

SECTION 11. INDEPENDENT CONTRACTOR.
a. The CONTRACTOR is and shall, at all times, remain as to the CITY a wholly independent contractor. Neither the CITY nor any of its elected officials, officers, employees, or agents shall have control over the conduct of the CONTRACTOR except as expressly set forth in this Agreement. The CONTRACTOR shall not at any time or in any manner represent that he or she is in any manner an elected official, officer, employee, or agent of the CITY. No employee benefits shall be available to t he CONTRACTOR in connection with the performance of this Agreement. Except as provided in this Agreement, the CITY shall not pay salary, wages, or other compensation to the CONTRACTOR for performance hereunder for the CITY, the CITY shall not be liable for compensation to the CONTRACTOR, the CONTRACTOR’s employees or the CONTRACTOR’s subcontractors for injury or sickness arising out of performing services hereunder.

b. The parties further acknowledge and agree that nothing in this Agreement shall create or be construed to create a partnership, joint venture, employment relationship or any other relationship except as set forth in this Agreement.

c. The CITY shall not deduct from the Compensation paid to t he CONTRACTOR any sums required for Social Security, withholding taxes, FICA, state disability insurance or any other federal, state or local tax or charge which may or may not be in effect or hereinafter enacted or required as a charge or withholding on the compensation paid to t he CONTRACTOR. The CITY shall have no responsibility to provide the CONTRACTOR, its employees or subcontractors with workers’ compensation insurance or any other insurance.

SECTION 12. CalPERS ANNUITANTS AND ELIGIBILITY INDEMNITY. a. If the CONTRACTOR is a California Public Employees’ Retirement System (“CalPERS”) annuitant, the CONTRACTOR must provide the City with written notification of such fact a minimum of 14 calendar days prior to commencement of services under this Agreement. Failure to provide such notification may result in termination of the Agreement, and any penalties or other costs relating thereto shall be borne by the CONTRACTOR. If this Agreement remains in place, the CONTRACTOR shall execute any amendment(s) to this Agreement requested by the City in order to comply with all laws and regulations applicable to CalPERS annuitants.

b. In the event that the CONTRACTOR or any employee, agent, or subcontractor of the CONTRACTOR providing services under this Agreement claims or is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the CITY, the CONTRACTOR shall indemnify, defend, and hold harmless the CITY for the payment of any employee and/or employer contributions for CalPERS benefits on behalf of t h e CONTRACTOR or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of the CITY.

c. Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, the CONTRACTOR and any of its

PROFESSIONAL SERVICES AGREEMENT NO. 4057

employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by t h e CITY, including but not limited to eligibility to enroll in PERS as an employee of the CITY and entitlement to any contribution to be paid by t h e CITY for employer contribution and/or employee contributions for PERS benefits.

SECTION 13. LEGAL RESPONSIBILITIES.

The CONTRACTOR shall at all times observe and comply with all applicable laws, ordinances, codes, and regulations of the federal, state, and local governments including, but not limited to the Montebello Municipal Code. The CITY, and its appointed or elected officers, employees, or agents, shall not be liable at law or in equity occasioned by failure of the CONTRACTOR to comply with this section.

SECTION 14. INDEMNIFICATION.

The CONTRACTOR agrees to, and shall defend, indemnify, protect and hold harmless, the CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers from and against any and all claims, demands, lawsuits, defense costs, civil, penalties, expenses, causes of action, and judgments at law or in equity, or liability of any kind or nature which the CITY, its elected and appointed boards, officers, officials, employees, agents and volunteers may sustain or incur or which may be imposed upon them for injuries or deaths of persons, or damage to property arising out of t h e CONTRACTOR’s negligent or wrongful act, or omission under the terms of this Agreement, except only liability arising out of the sole negligence of the CITY.

SECTION 15. INSURANCE COVERAGE.
a. During the term of this Agreement, the CONTRACTOR shall carry, maintain, and keep in full force and effect insurance against claims for death or injuries to persons or damages to property that may arise from or in connection with CONTRACTOR’s performance of this Agreement. Such insurance shall be of the types and in the amounts as set forth below:

  Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis for bodily injury and property damage, including products-completed operations, personal injury, and advertising injury, with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, the limit shall be twice the required occurrence limit.

  Business Automobile Liability Insurance: If applicable, Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if the CONTRACTOR has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.

  Worker's Compensation insurance as required by the laws of the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.

  Professional Liability insurance appropriate to the

PROFESSIONAL SERVICES AGREEMENT NO. 4057

CONTRACTOR’S profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.

b. If the CONTRACTOR maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher limits maintained by the CONTRACTOR.

c. The CONTACTOR shall require each of its subcontractors, if any, to maintain insurance coverage that meets all of the requirements of this Agreement.

d. The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a current rating of at least A:VII in the latest edition of Best's Insurance Guide.

e. Each insurance policy required above shall state that coverage shall not be canceled, except after thirty (30) days’ prior written notice (ten [10] days for non-payment) has been given to the CITY. The CONTRACTOR agrees that if it does not keep the aforesaid insurance in full force and effect the CITY may either (i) immediately terminate this Agreement for Cause; or (ii) take out the necessary insurance and pay, at the CONTRACTOR’s expense, the premium thereon.

f. Evidence of Insurance prior to commencement. The Contractor shall provide to the CITY Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements no later than five (5) business days prior to commencement of service and at least fifteen (15) business days prior to the expiration of any policy. Unreasonable failure to provide such evidence may be cause for termination of the Agreement as provided herein or delay the services’ commencement date. The evidence of insurance shall be U.S. mail or email to:

City of Montebello
Attn: Risk Manager
1600 West Beverly Boulevard
Montebello, CA 90640
Email: [email protected]

g. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non-renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to the CITY by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided.

h. Evidence of Insurance during the entire term of the Agreement. At all times during the term of this Agreement, the CONTRACTOR shall maintain on file with the CITY’s Risk Manager a certificate or certificates of insurance showing that the aforesaid policies are in effect in the required amounts and naming the CITY as an additional insured. The CONTRACTOR shall, prior to commencement of work under this Agreement, file with the CITY’s Risk Manager such certificate(s).

i. The CONTRACTOR shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two (2) weeks prior to the expiration of the coverages. j. The general l i a b i l i t y a n d a u t o m o b i l e p o l i c i e s o f insurance

PROFESSIONAL SERVICES AGREEMENT NO. 4057

required by this Agreement shall contain an endorsement naming the CITY, its officers, employees, agents and volunteers as additional insureds. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty days’ prior written notice to the CITY. The CONTRACTOR agrees to require its insurer to modify the certificates of insurance to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions.

k. The insurance provided by the CONTRACTOR shall be primary to any coverage available to the CITY. Any insurance or self-insurance maintained by the CITY, its officers, employees, agents, or volunteers, shall be in excess of CONTRACTOR’s insurance and shall not contribute with it.

l. All insurance coverage provided pursuant to this Agreement shall not prohibit the CONTRACTOR, and CONTRACTOR’s employees, agents or subcontractors, from waiving the right of subrogation prior to a loss. The CONTRACTOR hereby waives all rights of subrogation against the CITY.

m. Any deductibles or self-insured retentions must be declared to and approved by the CITY. At the option of the CITY, the CONTRACTOR shall either reduce or eliminate the deductibles or self-insured retentions with respect to the CITY, or the CONTRACTOR shall procure a bond guaranteeing payment of losses and expenses.

n. Procurement of insurance by the CONTRACTOR shall not be construed as a limitation of the CONTRACTOR'S liability or as full performance of CONTRACTOR’s duties to indemnify, hold harmless and defend under the indemnity covenants of this Agreement.

SECTION 16. SUBCONTRACT, ASSIGNMENT OR DELEGATION.

The CONTRACTOR shall not subcontract, delegate, or assign its duties or rights hereunder, either in whole or in part, without the prior written consent of the CITY.

Any proposed subcontract, delegation, or assignment shall provide a description of the services to be covered, identification of the proposed sub-contractor, delegee, or assignee, and an explanation of why and how the same was selected, including the degree of competition involved.

Any subcontract, delegation or assignment shall be made in the name of the CONTRACTOR and shall not bind or purport to bind the CITY and shall not release the CONTRACTOR from any obligations under this Agreement including, but not limited to, the duty to properly supervise and coordinate the work of employees, assignees, delegees or sub-contractors. No such subcontract, delegation or assignment shall result in any increase in the amount of total compensation payable to the CONTRACTOR under the Agreement.

SECTION 17. NO WAIVER.

Waiver by any party hereto of any term, condition or covenant of this Agreement shall not constitute the waiver of any other term, condition, or covenant hereof.

PROFESSIONAL SERVICES AGREEMENT NO. 4057

SECTION 18. DISPUTE RESOLUTION; GOVERNING LAW.

Disputes regarding the interpretation or application of any provision(s) of this Agreement shall, to the extent reasonably feasible, be resolved through good faith negotiations between the Parties. If any action at law or in equity is brought to enforce this Agreement or because of alleged dispute, breach, default or misrepresentation in connection with the provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney’s fees, expert fees, costs and necessary disbursements incurred in that action or proceeding, in addition to such other relief as may be sought and awarded. The venue for any litigation shall be County of Los Angeles, California. The Parties agree that the covenants contained in this Section shall survive the expiration or termination of this Agreement.

SECTION 19. ATTORNEY’S FEES AND COSTS.

If litigation is reasonably required to enforce or interpret the provisions of this Agreement, the prevailing party in such litigation shall be entitled to an award of reasonable attorney's fees and costs in addition to any other relief to which it may be entitled.

SECTION 20. WARRANTIES.

Each of the parties represents and warrants to one another as follows:

a. It has received independent legal advice from its attorneys with respect to the advisability of entering into and executing this Agreement;

b. In executing this Agreement, it has carefully read this Agreement, knows the contents thereof, and has relied solely on the statements expressly set forth herein and has placed no reliance whatsoever on any statement, representation, or promise of any other party, or any other person or entity, not expressly set forth herein, nor upon the failure of any other party or any other person or entity to make any statement, representation or disclosure of any matter whatsoever; and

c. It is agreed that each party has the full right and authority to enter into this Agreement, and that the person executing this Agreement on behalf of either party has the full right and authority to fully commit and bind such party to the provisions of this Agreement.

SECTION 21. MISCELLANEOUS.
a. The descriptive paragraph headings of this Agreement are included for purposes of convenience only and shall not control or affect the construction of interpretation of any of its provisions.

b. Whenever the context hereof shall so require, the singular shall include the plural, the male gender shall include the female gender, and the neuter and vice versa.

c. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein.

PROFESSIONAL SERVICES AGREEMENT NO. 4057

d. The representations and warranties made by the parties to this Agreement shall survive the consummation of the transaction herein described.

e. This Agreement may be signed in any one or more counterparts all of which taken together shall be but one and the same Agreement. Any signed copy of this Agreement or of any other document or agreement referred to herein, or copy or counterpart thereof, delivered by facsimile transmission, shall for all purposes be treated as if it were delivered containing an original manual signature of the party whose signature appears in the facsimile and shall be binding upon such party in the same manner as though an originally signed copy had been delivered.

f. Each of the parties acknowledges that it has been represented by independent counsel of its own choosing, or if it has not been so represented, it has been admonished to obtain independent counsel and has freely and voluntarily waived and relinquished the right to counsel. Each party who has not obtained independent counsel acknowledges that the failure to have independent legal counsel will not excuse such party’s failure to perform under this Agreement or any agreement referred to in this Agreement.

SECTION 22. NOTICE.

All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered via e- mail (an “Electronic Notice” as further defined below), personally or on the second (2nd) business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals hereunder shall be given to the following addresses or such other addresses as the Parties may designate by written notice:

If to CITY: City of Montebello
Attn: René Bobadilla, City Manager
1600 West Beverly Boulevard
Montebello, CA 90640
(323) 887-1200

With a copy to: City of Montebello – Montebello Bus Lines Attn: Adrianna Kendricks, Director of Transportation
400 South Taylor Avenue
Montebello, CA 90640
(323) 558 -1625 x 201
(323) 887- 4643 (Fax)
[email protected]

If to Contractor: Office Solutions Business Products & Services, LLC dba Bluespace Interiors
Attn: Dana Mittesteadt, Vice President
23303 La Palma Ave
Yorba Linda, CA 92287
(714) 692 – 7412 x 223
[email protected]

PROFESSIONAL SERVICES AGREEMENT NO. 4057

An electronic communication (“Electronic Notice”) shall be deemed written notice for purposes of this section if sent to the electronic mail address specified above. Electronic Notice shall be deemed received at the time the party sending Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form.

SECTION 23. NON-DISCRIMINATION AND EQUAL OPPORTUNITY
EMPLOYER.

In the performance of this Agreement, the CONTRACTOR shall not discriminate against any employee, sub-contractor, or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, mental condition or sexual orientation. The CONTRACTOR will take affirmative action to ensure that sub- contractor and applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition or sexual orientation.

SECTION 24. CONFLICT OF INTEREST.

The CONTRACTOR covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by the CONTRACTOR under this Agreement, or which would conflict in any manner with the performance of its services hereunder. The CONTRACTOR further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, the CONTRACTOR shall avoid the appearance of having any interest that would conflict in any manner with the performance of its services pursuant to this Agreement.

The CONTRACTOR covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to t h e CITY as a result of the performance of this Agreement, or the services that may be procured by the CITY as a result of the recommendations made by the CONTRACTOR. The CONTRACTOR's covenant under this section shall survive the termination of this Agreement.

SECTION 25. ENTIRE AGREEMENT.

This Agreement contains the entire understanding between the CITY and the CONTRACTOR. Any prior agreements, promises, negotiations or representations not expressly set forth herein are of no force or effect. Subsequent modifications to this Agreement shall be effective only if in writing and signed by each party. If any term, condition, or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall be valid and binding.

[SIGNATURE PAGE TO FOLLOW]

PROFESSIONAL SERVICES AGREEMENT NO. 4057

IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above.

(“CITY”) (“CONTRACTOR”)

CITY OF MONTEBELLO OFFICE SOLUTIONS BUSINESS

PRODUCTS & SERVICES, LLC
dba BLUESPACE INTERIORS

René Bobadilla, City Manager Dana Mittesteadt, Vice President

Date: ___________ Date: ____________

ATTEST:

Christopher Jimenez, City Clerk

APPROVED AS TO FORM:

Arnold M. Alvarez-Glasman, City Attorney

EXHIBITS
 Exhibit A – Sourcewell Contract No. 121919-TKN
 Exhibit B – Contractor’s Scope of Services Services and Associated Cost dated November 9, 2022
 Exhibit C - Terms for Compliance with California Labor Law Requirements

Exhibit “A”

Sourcewell Contract No. 121919-TKN

121919-TKN

1 Rev. 4/2019

Solicitation Number: RFP#121919

CONTRACT

This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Teknion LLC, 350 Fellowship Road, Mount Laurel, NJ 08054 (Vendor).

Sourcewell is a State of Minnesota local government agency and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to its members. Participation is open to all levels of governmental entity, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada.

Vendor desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and its Members (Members).

1. TERM OF CONTRACT

A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.

B. EXPIRATION DATE AND EXTENSION. This Contract expires February 18, 2024, unless it is cancelled sooner pursuant to Article 24. This Contract may be extended up to one additional one-year period upon request of Sourcewell and with written agreement by Vendor.

C. SURVIVAL OF TERMS. Articles 11 through 16 survive the expiration or cancellation of this Contract.

2. EQUIPMENT, PRODUCTS, OR SERVICES

A. EQUIPMENT, PRODUCTS, OR SERVICES. Vendor will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above.

Vendor’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract.

All Equipment and Products provided under this Contract must be new/current model. Vendor may offer close-out or refurbished Equipment or Products if they are clearly indicated in Vendor’s product and pricing list. Unless agreed to by the Member in advance, Equipment or Products must be delivered as operational to the Member’s site.

DocuSign Envelope ID: 9AF44748-0AB7-4562-9D5B-2C110598BBE8

121919-TKN

2 Rev. 4/2019

This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed.

B. LAWS AND REGULATIONS. All Equipment, Products, or Services must comply fully with applicable federal laws and regulations, and with the laws of the state or province in which the Equipment, Products, or Services are sold.

C. WARRANTY. Vendor warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship.

In addition, Vendor warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Vendor’s dealers and distributors must agree to assist the Member in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that is effective past the expiration of the Vendor’s warranty will be passed on to the Member.

D. DEALERS AND DISTRIBUTORS. Upon Contract execution, Vendor will make available to Sourcewell a means to validate or authenticate Vendor’s authorized Distributors/Dealers relative to the Equipment, Products, and Services related to this Contract. This list may be updated from time-to-time and is incorporated into this Contract by reference. It is the Vendor’s responsibility to ensure Sourcewell receives the most current version of this list.

3. PRICING

All Equipment, Products, or Services under this Contract will be priced as stated in Vendor’s Proposal.

Regardless of the payment method chosen by the Member, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Member at the time of purchase.

When providing pricing quotes to Members, all pricing quoted must reflect a Member’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Member’s requested delivery location.

A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Vendor must permit the Equipment and Products to be returned within a reasonable time at no cost to Sourcewell or its Members. Members reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery.

DocuSign Envelope ID: 9AF44748-0AB7-4562-9D5B-2C110598BBE8

121919-TKN

3 Rev. 4/2019

Vendor must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition.

Sourcewell may declare the Vendor in breach of this Contract if the Vendor intentionally delivers substandard or inferior Equipment or Products. In the event of the delivery of nonconforming Equipment and Products, the Member will notify the Vendor as soon as possible and the Vendor will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Member.

B. SALES TAX. Each Member is responsible for supplying the Vendor with valid tax-exemption certification(s). When ordering, Members must indicate if it is a tax-exempt entity.

C. HOT LIST PRICING. At any time during this Contract, Vendor may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract.

When Vendor determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below.

Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Members.

4. PRODUCT AND PRICING CHANGE REQUESTS

Vendor may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Contract Administrator. This form is available from the assigned Sourcewell Contract Administrator. At a minimum, the request must:

x Identify the applicable Sourcewell contract number
x Clearly specify the requested change
x Provide sufficient detail to justify the requested change x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change) x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged.

A fully executed Sourcewell Price and Product Request Form will be become an amendment to this Contract and be incorporated by reference.

DocuSign Envelope ID: 9AF44748-0AB7-4562-9D5B-2C110598BBE8

121919-TKN

4 Rev. 4/2019

5. MEMBERSHIP, CONTRACT ACCESS, AND MEMBER REQUIREMENTS

A. MEMBERSHIP. Membership in Sourcewell is open to public and nonprofit entities across the United States and Canada; such as municipal, state/province, K-12 and higher education, tribal government, and other public entities.

The benefits of this Contract should be available to all Members that can legally access the Equipment, Products, or Services under this Contract. A Member’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Vendor understands that a Member’s use of this Contract is at the Member’s sole convenience and Members reserve the right to obtain like Equipment, Products, or Services from any other source.

Vendor is responsible for familiarizing its sales and service forces with Sourcewell membership requirements and documentation and will encourage potential members to join Sourcewell.

Sourcewell reserves the right to add and remove Members to its roster during the term of this Contract.

B. PUBLIC FACILITIES. Vendor’s employees may be required to perform work at government- owned facilities, including schools. Vendor’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Member policies and procedures, and all applicable laws.

6. MEMBER ORDERING AND PURCHASE ORDERS

A. PURCHASE ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, Member must clearly indicate to Vendor that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Vendor. Typically a Member will issue a purchase order directly to Vendor. Members may use their own forms for purchase orders, but it should clearly note the applicable Sourcewell contract number. Members will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Member.

B. ADDITIONAL TERMS AND CONDITIONS. Additional terms and conditions to a purchase order may be negotiated between a Member and Vendor, such as job or industry-specific requirements, legal requirements (such as affirmative action or immigration status requirements), or specific local policy requirements. Any negotiated additional terms and conditions must never be less favorable to the Member than what is contained in Vendor’s Proposal.

C. PERFORMANCE BOND. If requested by a Member, Vendor will provide a performance bond that meets the requirements set forth in the Member’s purchase order.

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D. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Member requires service or specialized performance requirements (such as e-commerce specifications, specialized delivery requirements, or other specifications and requirements) not addressed in this Contract, the Member and the Vendor may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement.

E. TERMINATION OF PURCHASE ORDERS. Members may terminate a purchase order, in whole or in part, immediately upon notice to Vendor in the event of any of the following events:

1. The Member fails to receive funding or appropriation from its governing body at levels sufficient to pay for the goods to be purchased;

2. Federal or state laws or regulations prohibit the purchase or change the Member’s requirements; or

3. Vendor commits any material breach of this Contract or the additional terms agreed to between the Vendor and a Member.

F. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Member’s purchase order will be determined by the Member making the purchase.

7. CUSTOMER SERVICE

A. PRIMARY ACCOUNT REPRESENTATIVE. Vendor will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for:

x Maintenance and management of this Contract;
x Timely response to all Sourcewell and Member inquiries; and x Business reviews to Sourcewell and Members, if applicable.

B. BUSINESS REVIEWS. Vendor must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to members, pricing and contract terms, administrative fees, supply issues, customer issues, and any other necessary information.

8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT

A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Vendor must provide a contract sales activity report (Report) to the Sourcewell Contract Administrator assigned to this Contract. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Vendor must submit a report indicating no sales were made).

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The Report must contain the following fields:

x Customer Name (e.g., City of Staples Highway Department); x Customer Physical Street Address;
x Customer City;
x Customer State;
x Customer Zip Code;
x Customer Contact Name;
x Customer Contact Email Address;
x Customer Contact Telephone Number;
x Sourcewell Assigned Entity/Member Number;
x Item Purchased Description;
x Item Purchased Price;
x Sourcewell Administrative Fee Applied; and
x Date Purchase was invoiced/sale was recognized as revenue by Vendor.

B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Vendor will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Members. The Vendor will submit a check payable to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased by Members under this Contract during each calendar quarter. Payments should note the Sourcewell-assigned contract number in the memo and must be mailed to the address above “Attn: Accounts Receivable.” Payments must be received no later than forty-five (45) calendar days after the end of each calendar quarter.

Vendor agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract.

In the event the Vendor is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Vendor in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than thirty (30) days from the cancellation date.

9. AUTHORIZED REPRESENTATIVE

Sourcewell's Authorized Representative is its Chief Procurement Officer.

Vendor’s Authorized Representative is the person named in the Vendor’s Proposal. If Vendor’s Authorized Representative changes at any time during this Contract, Vendor must promptly notify Sourcewell in writing.

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10. ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE

A. ASSIGNMENT. Neither the Vendor nor Sourcewell may assign or transfer any rights or obligations under this Contract without the prior consent of the parties and a fully executed assignment agreement. Such consent will not be unreasonably withheld.

B. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been fully executed by the parties.

C. WAIVER. If either party fails to enforce any provision of this Contract, that failure does not waive the provision or the right to enforce it.

D. CONTRACT COMPLETE. This Contract contains all negotiations and agreements between Sourcewell and Vendor. No other understanding regarding this Contract, whether written or oral, may be used to bind either party.

E. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, master- servant, principal-agent, or any other relationship.

11. LIABILITY

Vendor must indemnify, save, and hold Sourcewell and its Members, including their agents and employees, harmless from any claims or causes of action, including attorneys’ fees, arising out of the performance of this Contract by the Vendor or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications.

12. AUDITS

Sourcewell reserves the right to review the books, records, documents, and accounting procedures and practices of the Vendor relevant to this Contract for a minimum of six (6) years from the end of this Contract. This clause extends to Members as it relates to business conducted by that Member under this Contract.

13. GOVERNMENT DATA PRACTICES

Vendor and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Vendor under this Contract.

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If the Vendor receives a request to release the data referred to in this article, the Vendor must immediately notify Sourcewell and Sourcewell will assist with how the Vendor should respond to the request.

14. INTELLECTUAL PROPERTY

As applicable, Vendor agrees to indemnify and hold harmless Sourcewell and its Members against any and all suits, claims, judgments, and costs instituted or recovered against Sourcewell or Members by any person on account of the use of any Equipment or Products by Sourcewell or its Members supplied by Vendor in violation of applicable patent or copyright laws.

15. PUBLICITY, MARKETING, AND ENDORSEMENT

A. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Vendor individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract.

B. MARKETING. Any direct advertising, marketing, or offers with Members must be approved by Sourcewell. Materials should be sent to the Sourcewell Contract Administrator assigned to this Contract.

C. ENDORSEMENT. The Vendor must not claim that Sourcewell endorses its Equipment, Products, or Services.

16. GOVERNING LAW, JURISDICTION, AND VENUE

Minnesota law governs this Contract. Venue for all legal proceedings out of this Contract, or its breach, must be in the appropriate state court in Todd County or federal court in Fergus Falls, Minnesota.

17. FORCE MAJEURE

Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default.

18. SEVERABILITY

If any provision of this Contract is found to be illegal, unenforceable, or void then both Sourcewell and Vendor will be relieved of all obligations arising under such provisions. If the DocuSign Envelope ID: 9AF44748-0AB7-4562-9D5B-2C110598BBE8

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remainder of this Contract is capable of performance, it will not be affected by such declaration or finding and must be fully performed.

19. PERFORMANCE, DEFAULT, AND REMEDIES

A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows:

1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Vendor will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties.

2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Vendor may escalate the resolution of the issue to a higher level of management. The Vendor will have thirty (30) calendar days to cure an outstanding issue.

3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Vendor must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Vendor fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, any additional costs incurred by Sourcewell and/or its Members as a result of such failure to proceed will be borne by the Vendor.

B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Member order under this Contract, in default:

1. Nonperformance of contractual requirements, or

2. A material breach of any term or condition of this Contract.

Written notice of default and a reasonable opportunity to cure must be issued by the party claiming default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may:

x Exercise any remedy provided by law or equity, or
x Terminate the Contract or any portion thereof, including any orders issued against the Contract.

20. INSURANCE

A. REQUIREMENTS. At its own expense, Vendor must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance not less than the following:

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1. Workers’ Compensation and Employer’s Liability.

Workers’ Compensation: As required by any applicable law or regulation.

Employer's Liability Insurance: must be provided in amounts not less than listed below:

Minimum limits:
$500,000 each accident for bodily injury by accident
$500,000 policy limit for bodily injury by disease
$500,000 each employee for bodily injury by disease

2. Commercial General Liability Insurance. Vendor will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2001 or newer edition). At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract.

Minimum Limits:
$1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for Products-Completed operations
$2,000,000 general aggregate

3. Commercial Automobile Liability Insurance. During the term of this Contract, Vendor will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer).

Minimum Limits:
$1,000,000 each accident, combined single limit

4. Umbrella Insurance. During the term of this Contract, Vendor will maintain umbrella coverage over Workers’ Compensation, Commercial General Liability, and Commercial Automobile.

Minimum Limits:
$2,000,000

5. Professional/Technical, Errors and Omissions, and/or Miscellaneous Liability.

During the term of this Contract, Vendor will maintain coverage for all claims the Vendor may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Vendor’s professional services required under this Contract.

Minimum Limits:
$2,000,000 per claim or event
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$2,000,000 – annual aggregate

6. Network Security and Privacy Liability Insurance. During the term of this Contract, Vendor will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Vendor’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.

Minimum limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate

Failure of Vendor to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default.

B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Vendor must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Contract Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf. All policies must include there will be no cancellation, suspension, non-renewal, or reduction of coverage without thirty (30) days’ prior written notice to the Vendor.

Upon request, Vendor must provide to Sourcewell copies of applicable policies and endorsements, within ten (10) days of a request. Failure to request certificates of insurance by Sourcewell, or failure of Vendor to provide certificates of insurance, in no way limits or relieves Vendor of its duties and responsibilities in this Contract.

C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Vendor agrees to name Sourcewell and its Members, including their officers, agents, and employees, as an additional insured under the Vendor’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or “work” performed by or on behalf of Vendor, and products and completed operations of Vendor. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds.

D. WAIVER OF SUBROGATION. Vendor waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other insurance applicable to the Vendor or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance DocuSign Envelope ID: 9AF44748-0AB7-4562-9D5B-2C110598BBE8

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maintained by the Vendor or its subcontractors. Where permitted by law, Vendor must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors.

E. UMBRELLA/EXCESS LIABILITY. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies).

F. SELF-INSURED RETENTIONS. Any self-insured retention in excess of $10,000 is subject to Sourcewell’s approval.

21. COMPLIANCE

A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold.

B. LICENSES. Vendor must maintain a valid status on all required federal, state, and local licenses, bonds, and permits required for the operation of the business that the Vendor conducts with Sourcewell and Members.

22. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION

Vendor certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Vendor declares bankruptcy, Vendor must immediately notify Sourcewell in writing.

Vendor certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota, the United States federal government, or any Member.

Vendor certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Vendor further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time.

23. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER

UNITED STATES FEDERAL AWARDS OR OTHER AWARDS

Members that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Members may also require additional requirements based on specific funding specifications. Within this Article, all references to “federal” should be interpreted to mean the United States federal government. The following list only applies when DocuSign Envelope ID: 9AF44748-0AB7-4562-9D5B-2C110598BBE8

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a Member accesses Vendor’s Equipment, Products, or Services with United States federal funds.

A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-

1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference.

B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Vendor must be in compliance with all applicable Davis-Bacon Act provisions.

C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. § 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).

Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction DocuSign Envelope ID: 9AF44748-0AB7-4562-9D5B-2C110598BBE8

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work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Vendor certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Vendor must comply with applicable requirements as referenced above.

D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Vendor certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Vendor must comply with applicable requirements as referenced above.

E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). Vendor certifies that during the term of this Contract will comply with applicable requirements as referenced above.

F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Vendor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.

G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Vendors must file any required certifications. Vendors must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award DocuSign Envelope ID: 9AF44748-0AB7-4562-9D5B-2C110598BBE8