March 1, 2022, Item #6
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PO RT City of Poway
March 1, 2022
Honorable Mayor and Members of the City Council
Eric Heidemann, Director of Public Works ~~
Will Wiley, Assistant Director of Public Work~,,..
(858) 668-4705 or [email protected] .r Y
CITY COUNCIL
Award of Agreement to Kissinger Juarez Inc. dba Kissinger Trucking & EQ for Trucking and Operator Services, RFP 22-011
A notice inviting proposals for Trucking and Operator Services was advertised on October 21 and 28, 2021. An addendum to the request for proposals was issued on November 16, 2021, extending the deadline for proposals. One proposal was received and opened on January 25, 2022. Kissinger Juarez Inc., dba Kissinger Trucking & EQ (Kissinger Trucking), was found to be responsive to the criteria of the proposal. The first term of the Agreement is two (2) years beginning March 2, 2022, through March 1, 2024, and may be extended by up to three (3) separate one-year terms.
Recommended Action:
It is recommended that the City Council award the Agreement for Trucking and Operator Services, RFP 22-011, to Kissinger Juarez Inc. dba Kissinger Trucking & EQ and authorize the City Manager to execute the necessary documents.
Discussion:
This Agreement provides trucking services including hauling asphalt grindings, dirt, rock and other various materials to locations identified by the City to assist in Public Works roadway maintenance operation activities. In October 2021, a notice inviting proposals for Trucking and Operator Services was advertised on the City's website, online bid portal and in the local newspaper. Due to the initial lack of response, an addendum was issued on November 16, 2021, extending the deadline for proposal submissions. Additionally, staff contacted several contractors regarding the bid opportunity.
One responsive proposal was received and opened on January 25, 2022. Kissinger Trucking has a history of providing exceptional service to the City and meeting the requirements of the proposal.
Evaluation criteria for the proposals included: experience and ability to perform, including, but not limited to experience of the company, age and number of trucks available for the agreement period, as well as the cost proposed. The table below represents the hourly rate to be paid for work performed during scheduled operations.
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March 1, 2022, Item #6
Trucking and Operator Proposed Rates Table
Mon.-Fri. After Hours & Sunday & Holidays
Kissinger Trucking 7:00 a.m. -6:00 p.m. Saturdays
1 driver, 1 vehicle $112.00 $112.00 $112.00
On average, the City pays $85,000 for trucking services, however, the cost varies each year depending on the scheduled street maintenance zone. The rate proposed under the agreement with Kissinger & Herring, Inc., reflects an approximate four (4) percent increase from the City's most recently expired trucking and operator service agreement rate of $108.00. Staff determined the new rate of $112.00 to be acceptable and within market rate.
Environmental Review:
This action is not subject to review under the California Environmental Quality Act (CEQA).
Fiscal Impact:
Funds are available in the Street Maintenance Division's Roadways Repair and Maintenance Fiscal Year 2021-2022 budget (411040-43201) for as-needed trucking and operator services.
Public Notification:
None.
Attachments:
A. Agreement for Trucking and Operator Services
Reviewed/ Approved By:
w~Wher:-::-
Assistant City Manager
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Reviewed By:
Alan Fenstermacher
City Attorney City Manager
March 1, 2022, Item #6
City of Poway
STANDARD AGREEMENT FOR SERVICES
This Agreement, entered into this 1st day of March, 2022, by and between the CITY OF POWAY (hereinafter referred to as "City") and Kissinger Juarez Inc. dba Kissinger Trucking & EQ (hereinafter referred to as "Contractor").
RECITALS
WHEREAS, City desires to obtain the services of a private Contractor to provide Trucking and Operator Services in support of the Public Works Streets Department; WHEREAS, Contractor has represented that Contractor possesses the necessary qualifications to provide such services;
WHEREAS, City has authorized the preparation of an agreement to retain the services of Contractor as hereinafter set forth.
NOW, THEREFORE, IT IS MUTUALLY AGREED THAT CITY DOES HEREBY RETAIN CONTRACTOR ON THE FOLLOWING TERMS AND CONDITIONS:
1. Scope of Services.
Contractor shall provide services as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
2. Compensation and Reimbursement.
City shall compensate and reimburse Contractor as provided in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
3. Term of Agreement.
The term of this Agreement shall be as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
4. Termination.
This Agreement may be terminated with or without cause by City.
Termination without cause shall be effective only upon 60-day written notice to Contractor. During said 60-day period Contractor shall perform all consulting services in accordance with this Agreement. This Agreement may be terminated by City for cause in the event of a material breach of this Agreement, misrepresentation by Contractor in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by City. Termination for cause shall be effected by 3 of61 ATTACHMENT A
March 1, 2022, Item #6
delivery of written notice of termination to Contractor. Such termination shall be effective upon delivery of said notice.
5. Confidential Relationship.
City may from time to time communicate to Contractor certain information to enable Contractor to effectively perform the services. Contractor shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of the City. Contractor shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services. The foregoing obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of Contractor, hereafter disclosed in publicly available sources of information; (iii) is now in the possession of Contractor without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to Contractor by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party.
Contractor shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this contract without the prior written consent of the City. In its performance hereunder, Contractor shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation.
6. Office Space and Clerical Support.
Contractor shall provide its own office space and clerical support at its sole cost and expense.
7. Covenant Against Contingent Fees.
Contractor declares that it has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of the Agreement.
For breach of violation of this warranty, City shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
8. Ownership of Documents.
All memoranda, reports, plans, specifications, maps and other documents prepared or obtained under the terms of this Agreement shall be the property of City and shall be delivered to City by Contractor upon demand.
9. Conflict of Interest and Political Reform Act Obligations. 4of61
March 1, 2022, Item #6
During the term of this Agreement Contractor shall not act as Contractor or perform services of any kind for any person or entity whose interests conflict in any way with those of the City of Poway. Contractor shall at all times comply with the terms of the Political Reform Act and the local conflict of interest code. Contractor shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Contractor has a financial interest as defined in Government Code Section 87103. Contractor represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the City.
"Contractor" means an individual who, pursuant to a contract with a state or local agency:
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(A) Makes a governmental decision whether to:
1. Approve a rate, rule or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar
authorization or entitlement;
4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval;
5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract.
6. Grant City approval to a plan, design, report, study, or similar item;
7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or (B) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code.
DISCLOSURE DETERMINATION:
March 1, 2022, Item #6
[8] 1. Contractor will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above.
No disclosure required.
D 2. Contractor will be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. As a result, Contractor shall be required to file a Statement of Economic Interest with the City Clerk of the City of Poway in a timely manner as required by law.
Department Director
10. No Assignments.
Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void. ~ 1. Maintenance of Records.
Contractor shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the contract period and for three (3) years from the date of final payment under this Agreement, for inspection by City and copies thereof shall be furnished, if requested.
12. Independent Contractor.
At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of the City of Poway. City shall have the right to control Contractor only insofar as the results of Contractor's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Contractor accomplishes such services.
13. Licenses, Permits, Etc.
Contractor represents and declares to City that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. Contractor represents and warrants to City that Contractor shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for Contractor to practice its profession.
14. Contractor's Insurance.
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Contractor shall provide insurance as set forth in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
15. Indemnification.
(a) For Claims (as defined herein) other than those alleged to arise from Contractor's negligent performance of professional services, City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "lndemnitees") shall have no liability to Contractor or any other person for, and Contractor shall indemnify, protect and hold harmless lndemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses, including reasonable attorneys' fees and disbursements (collectively "Claims"), which lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of Contractor's negligent performance under this Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, sub-Contractors or employees.
(b) For Claims alleged to arise from Contractor's negligent performance of professional services, lndemnitees shall have no liability to Contractor or any other person for, and Contractor shall indemnify and hold harmless lndemnitees from and against, any and all Claims that lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise to the extent occurring as a result of Contractor's negligent performance of any professional services under this Agreement, or by the negligent or willful acts or omissions of Contractor, its agents, officers, directors, sub-Contractors or employees, committed in performing any of professional services under this Agreement. For Claims alleged to arise from Contractor's professional services, Contractor's defense obligation to lndemnitees shall include only the reimbursement of reasonable defense costs and attorneys' fees to the extent caused by Contractor's negligence.
(c) The foregoing obligations of Contractor shall not apply to the extent that the Claims arise from the sole negligence or willful misconduct of City or its elected and appointed boards, officials, officers, agents, employees and volunteers. (d) In any and all Claims against City by any employees of the Contractor, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this Section 15 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor under worker's compensation acts, disability benefit acts or other employee benefit acts.
(e) Contractor shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Contractor is carrying and maintaining; however, if Contractor fails to take such action as 7 of61
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is necessary to make a claim under any such insurance policy, Contractor shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Contractor under any insurance policy or policies required pursuant to this Agreement.
(f) The obligations described in Section 15(a) through (e) above shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person indemnified pursuant to this Section
15. (g) The rights and obligations of the parties described in this Section 15 shall survive the termination of this Agreement.
16. Assumption of Risk.
Except for injuries to persons caused by the willful misconduct of any lndemnitee and not covered by insurance maintained, or required by this Agreement to be maintained, by Contractor: (a) Contractor hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Contractor that occurs in the course of, or in connection with, the performance of Contractor's obligations under this Agreement, including but not limited to Contractor's Scope of Services; and (b) it is hereby agreed that the lndemnitees are not to be liable for injury or damage which may be sustained by the person, goods or property of Contractor or its employees in connection with Contractor's performance its obligations under this Agreement, including but not limited to Contractor's Scope of Services.
17. Contractor Not an Agent.
Except as City may specify in writing, Contractor shall have no authority, expressed or implied, to act on behalf of City in any capacity whatsoever as an agent.
Contractor shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
18. Personnel.
Contractor shall assign qualified and certified personnel to perform requested services. The City shall have the right to review and disapprove personnel for assignment to Poway projects.
City shall have the unrestricted right to order the removal of any person(s) assigned by Contractor by giving oral or written notice to Contractor to such effect.
Contractor's personnel shall at all times comply with City's drug and alcohol policies then in effect.
19. Notices.
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Notices shall be given as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
20. Governing Law, Forum Selection and Attorneys' Fees.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Each party to this Agreement consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth in Exhibit "A" hereto. Any action to enforce or interpret the terms or conditions of this Agreement shall be brought in the Superior Court in San Diego County, Central Division, unless the parties mutually agree to submit their dispute to arbitration. Contractor hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. The prevailing party in any such action or proceeding shall be entitled to recover all of its reasonable litigation expenses, including its expert fees, attorneys' fees, courts costs, arbitration costs, and any other fees. Notwithstanding the foregoing, in the event that the subject of such an action is compensation claimed by Contractor in the event of termination, Contractor's damages shall be limited to compensation for the 60-day period for which Contractor would have been entitled to receive compensation if terminated without cause, and neither party shall be entitled to recover their litigation expenses.
21. Gender.
Whether referred to in the masculine, feminine, or as "it," "Contractor" shall mean the individual or corporate Contractor and any and all employees of Contractor providing services hereunder.
22. Counterparts.
This Agreement (and any amendments) may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Documents delivered by telephonic facsimile transmission shall be valid and binding.
23. Entire Agreement.
This Agreement shall constitute the entire understanding between Contractor and City relating to the terms and conditions of the services to be performed by Contractor. No agreements, representations or promises made by either party, whether oral or in writing, shall be of any force or effect unless it is in writing and executed by the party to be bound thereby.
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24. Certification and Indemnification Regarding Public Employees' Retirement Law/Pension Reform Act of 2013.
March 1, 2022, Item #6
Contractor hereby certifies that all persons providing services to City by Contractor are not current members of the California Public Employees' Retirement System (CalPERS) and shall not become members of CalPERS while providing services to City.
Contractor further provides that in the event Contractor assigns a retired annuitant receiving a pension benefit from CalPERS to perform services for City, the retired annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B." Further, Contractor hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CalPERS in the event CalPERS determines the person assigned by Contractor to provide services to City has been misclassified.
25. Severability.
If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect. (Remainder of page intentionally left blank)
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March 1, 2022, Item #6
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first above written.
CITY OF POWAY
By:---------
Chris Hazeltine, City Manager
Date: -----------
ATTEST:
Carrie Gallager, City Clerk
APPROVED AS TO FORM:
Kissinger Juarez Inc. dba Kissinger
Trucking & EQ
By: ___________ _
Debbie Kissinger, President
Date: ------------
By:------------
Alan Fenstermacher, City Attorney
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March 1, 2022, Item #6
"SPECIAL PROVISIONS"
EXHIBIT "A"
A. Scope of Services.
Contractor agrees to provide trucking and operator services as required by City, further described in the Request for Proposals which is included in this document as Attachment 1, and incorporated by reference, as if its contents were fully set forth herein.
Contractor shall provide the necessary qualify ed personnel to perform the services.
B. Compensation and Reimbursement.
City shall pay Contractor a fee in accordance with the Fee Proposals submitted in writing on January 25, 2022, which is included in this document as Attachment 2. Total fee is not to exceed $650,000. Contractor's fee shall include, and Contractor shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received.
In addition to said consulting fee, Contractor shall be reimbursed for all reasonable expenses, including lodging, telephone, and travel (air, auto, rail) necessarily incurred in performance of the services. Contractor shall bill City for such expenses as incurred, referencing this Agreement. All expenses shall be itemized and supported by receipts for amounts in excess of Twenty-Five Dollars ($25.00). Statements for reimbursement of expenses shall be paid within ten (10) days of approval by City. All air travel shall be billed at coach or special fare rates. Reimbursement for lodging is limited to travel from outside of San Diego County. Contractor shall receive prior authorization for air travel and lodging expenses. All other expenses shall be reimbursed in accordance with City's cash disbursement policies in effect at the time incurred.
C. Term of Agreement.
This Agreement shall be effective from the period commencing March 1, 2022 and ending February 29, 2024, unless sooner terminated by City as provided in the section of this Agreement entitled "Termination." This Agreement may be extended for up to three (3) additional one-year periods upon approval in writing of the City Manager and Contractor. Award of the Contract and any Contract extensions are subject to City Council appropriation of funds. Each renewal period (fiscal) after the first two years of the agreement, the Contractor's costs shall be adjusted based on the annual change in the previous calendar year's Consumer Price Index for the San Diego-Carlsbad area (All Urban Consumers CPI-U) or 5%, whichever is less. The first adjustment would occur no earlier than April 1, 2024. Upon expiration or termination of this Agreement, Contractor shall return to City any and all equipment, documents or materials and all copies made thereof which Contractor received from City or produced for City for the purposes of this Agreement.
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March 1, 2022, Item #6
D. Contractor's Insurance.
1. Coverages:
Contractor shall obtain and maintain during the life of this Agreement all of the following insurance coverages:
(a) Comprehensive General Liability. including premises- operations, products/completed, broad form property damage, and blanket contractual liability with the following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate. (b) Automobile Liability, including owned, hired, and non-owned vehicles: $5,000,000 combined single limit.
(c) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance.
2. Endorsements:
Endorsements shall be obtained so that each policy contains the following three provisions:
(a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City."
(b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
(c) Primary Coverage.
"The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
3. Insurance Certificates:
Contractor shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement.
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March 1, 2022, Item #6
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to the following addresses:
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To City:
To Contractor:
City of Poway
P.O. Box 789
Poway, CA 92074
Kissinger Juarez Inc. dba
Kissinger Trucking & EQ
PO Box 261805
San Diego, CA 92196
(Remainder of page intentionally left blank)
March 1, 2022, Item #6
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ATTACHMENT #1
CITY OF POWAY
REQUEST FOR PROPOSAL
RFP No. 22-011
TRUCKING AND OPERATOR SERVICES
October 2021
March 1, 2022, Item #6
Table of Contents
SECTION 1 ..................................................................................................................................... 3 REQUEST FOR PROPOSAL .................................................................................................. 3 SECTION 11 .................................................................................................................................... 4 GENERAL TERMS AND CONDITIONS .................................................................................. .4 SECTION lll ................................................................................................................................. 15 TECHNICAL SPECIFICATIONS ............................................................................................ 15 SECTION IV ................................................................................................................................ 19 DOCUMENTS TO BE EXECUTED BY THE PROPOSER ..................................................... 19 FEE SCHEDULE ................................................................................................................... 20 SIGNATURE SHEET ............................................................................................................. 21 TRUCKING AND OPERATOR SERVICES ............................................................................ 22
STATEMENT OF FINANCIAL RESPONSIBILITY, TECHNICAL ABILITY AND EXPERIENCE .............................................................................................................................................. 24 REFERENCES ...................................................................................................................... 25 SUBCONTRACTORS ............................................................................................................ 26 NON-COLLUSION AFFIDAVIT .............................................................................................. 27 APPENDIX A ............................................................................................................................... 28 SAMPLE AGREEMENT ......................................................................................................... 28 GUARANTY ........................................................................................................................... 44 WORKERS' COMPENSATION INSURANCE CERT/FICA TE ............................................... .45 16 of61
March 1, 2022, Item #6
SECTION
I
REQUEST
FOR
PROPOSAL
Notice
is
hereby
given
that
the
City
of
Poway
(the
"City"),
California
will
accept
sealed
proposals
at
the
Public
Works
Administration
Office,
14467
Lake
Poway
Road,
Poway,
California
92064,
until
2 p.m.
on
Tuesday,
January
18,
2022.
Proposals
shall
be
submitted
in
plain,
sealed
envelopes,
marked
on
the
outside
with
the
project
title:
TRUCKING
AND
OPERATOR
SERVICES
RFP
NO.
22-011
Proiect
Description:
This
Request
for
Proposal
(RFP)
is
being
issued
by
the
City.
The
City
is
requesting
proposals
from
qualified
contractors
to
provide
trucking
and
operator
services
which
will
include
hauling
asphalt
grindings,
dirt,
rock
and
other
various
materials
to
locations
identified
by
the
City
to
assist
in
Public
Works
maintenance
operation
activities.
The
City
proposes
to
contract
with
a
qualified
firm
that
is
proactive
in
their
work
standards
and
can
meet
the
qualifications
set
forth
in
this
proposal
package.
Proposals
will
be
evaluated
on
the
basis
of,
experience
and
the
ability
to
perform,
including,
but
not
limited
to,
experience
and
history
of
the
firm,
age
and
number
of
trucks,
as
well
as
costs.
The
award
of
the
Agreement,
if
made,
will
be
made
to
the
proposer,
who
in
the
sole
discretion
of
the
City
is
best
able
to
perform
the
Agreement
in
a
manner
most
beneficial
to
the
City.
The
City
reserves
the
right,
after
opening
proposals,
to
reject
any
or
all
proposals,
to
accept
or
reject
any
one
or
more
items
of
a
proposal,
to
waive
any
informality
in
the
proposal,
and
to
accept
any
proposal
or
portion
of
it.
Standard
Contract
Length:
The
length
of
this
Agreement
shall
be
for
two
(2)
years
beginning
on
March
1,
2022,
through
February
29,
2024.
The
Agreement
can
be
extended
by
a
maximum
of
three
(3)
one-year
terms.
Award
of
the
Agreement
and
any
extensions
are
subject
to
City
Council
appropriation
of
funds.
The
maximum
length
of
the
Agreement
can
be
up
to
five
(5)
years.
Each
renewal
period,
the
Contractor's
costs
shall
be
adjusted
based
on
the
annual
change
in
the
previous
calendar
year's
Consumer
Price
Index
for
the
San
Diego
area
(All
Urban
Consumers
CPI-U)
or
5%,
whichever
is
less.
The
first
adjustment
would
occur
no
earlier
than
March
1,
2024.
Proposal
documents
may
be
downloaded
free
of
charge
via
our
website
at
www.poway.org.
For
further
information
on
project
specifications
contact
Amelia
Dominguez,
Management
Analyst
at
(858)
668-4757
or
[email protected].
City
of
Poway
Eric
Date
17 of
61 March 1, 2022, Item #6
SECTION II
GENERAL TERMS AND CONDITIONS
1. RFP Document Wording: Notwithstanding the wording of this RFP, the words "bid" and "bidder" shall mean the same as "proposal" and "proposing contractor," respectively.
2. Deadlines: Responses to this RFP must be received at the Public Works Administration Office by 2 p.m. on Tuesday, January 18, 2022. Responses received after this deadline will not be considered. Postmarked date will not constitute timely delivery. Proposers are solely responsible for ensuring timely receipt of their responses.
Event Date Time
Deadline for Written Inquiries 11/1/2021 5 p.m.
Final Inquiry Responses Released 1/3/2022
Proposals Due 1/18/2022 2 p.m.
Anticipated Award Date 2/25/2022
3. Delivery of Proposals: Proposals shall be enclosed in a sealed plain envelope and the package must be marked with the project title:
TRUCKING AND OPERATOR SERVICES
RFP NO. 22-011
Mail Delivery
Public Works Department
City of Poway
P.O. Box 789
Poway, CA 92074
Hand Delivery
Public Works Department
Administrative Office
14467 Lake Poway Road
Poway, CA 92064
The proposal packet must contain all the required forms, as provided in Section 11, Item 14.
4. Correspondence and Additional Information: All questions about the Agreement and technical portions of the RFP, must be submitted in writing to the city representative as follows:
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City of Poway -Public Works Department
Amelia Dominguez, Management Analyst
TRUCKING AND OPERATOR SERVICES
RFP No. 22-011
14467 Lake Poway Road
Poway, CA 92064
Email: [email protected]
March 1, 2022, Item #6
Proposing contractors are cautioned that any statements made by City staff that materially changes any portion of the RFP shall not be relied upon unless subsequently ratified by a formal written addendum to the RFP document.
5. Addenda: If any person contemplating submitting a proposal for the Agreement is in doubt as to the true meaning of any part of the specifications, or other Agreement documents, or finds discrepancies in or omissions from the specifications, they may submit to the City a written request for an interpretation or correction thereof. The person submitting the request will be responsible for its prompt delivery.
Any interpretation or correction of the Agreement documents will be made by addendum duly issued by the Director of Public Works, or their designee. A copy of such addendum will be mailed or delivered to each person receiving a set of the Agreement documents. No oral interpretation of any provision in the Agreement documents will be made to any proposing contractor. In the event of a conflict between drawings and specifications, the specifications shall control.
Receipt of any addendum to the proposal shall be acknowledged by signing and returning the addendum with the proposal. The acknowledgment must be received by the City by the time and at the place specified for receipt of proposals.
6. Acceptance or Reiection of Proposals: The City reserves the right to reject any or all proposals for any or all items or to waive any irregularities in the proposal or RFP process. The determination of the City as to what constitutes an irregularity shall be final and conclusive.
7. Selection of Contractor and Award of Agreement: The Agreement, if awarded, will be awarded to the proposing contractor who, in the sole discretion of the City, is determined to be best able to perform the Agreement in a manner most beneficial to the City. The selection shall be made based on demonstrated competence, professional qualifications and a fee schedule that is deemed by the City to be most advantageous.
8. Execution of Agreement: The successful proposer will be required to enter into an Agreement, a sample agreement is included as Appendix A. Please review the sample agreement carefully and note in your proposal any exceptions or alterations to the Agreement that you are requesting. Alterations or changes to the Agreement that were not included in the proposal will not be considered after the selection of the contractor. This also includes alterations, exceptions, or changes to the insurance and indemnity provisions referenced within the proposal. By requiring these requests to be made up front, the City can compare all respondents on an equal basis and take Agreement exceptions into consideration in the selection process.
The Agreement shall be signed by the selected contractor and returned, together with insurance policies and certificates of insurance, within ten (10) days, excluding Sundays and legal holidays, after the Notice of Award of Agreement has been mailed.
Failure to execute the Agreement, supply certificates of insurance, and copies of license forms as required within ten (10) calendar days after the Notice of Award of 19 of 61
March 1, 2022, Item #6
the Agreement has been mailed, shall be just cause for annulment of the award. The award, if made, will be made within forty-five (45) calendar days after the proposal opening.
9. Proposing Contractors: Proposing contractors shall consist of those persons or firms meeting the necessary qualifications to perform the services as specified.
10. Proposing Contractor Certification: The proposing contractor agrees that submission of a signed proposal form is certification that proposing contractor will accept an award made to it as a result of the submission.
11. Proposal Guarantees: Proposer agrees that her or his proposal shall remain open and not be withdrawn for a period of ninety (90) days from the deadline submittal.
12.Agreement Documents: The specifications [general and technical], the selected proposal, supporting data and addenda shall become a part of the executed Agreement. The City has no obligation to accept any omissions or exceptions. In the event of a conflict between documents, the following order of precedence shall apply:
a. City of Poway Agreement
b. City of Poway Request for Proposal
c. Proposer's Response
All proposing contractors shall be responsible for familiarizing themselves with the conditions and requirements of the proposal prior to submittal, including any and all appendices.
13. Length of Agreement: The length of this Agreement shall be for two (2) years beginning March 1, 2022, through February 29, 2024. The Agreement may be extended for up to three (3) additional one-year terms.
14. Forms: No proposals will be considered unless submitted on the original forms provided by the City. Proposals must be prepared in ink or typewritten and signed by the proposing contractor. All proposing contractors shall be responsible for familiarizing themselves with the conditions and requirements of the proposals prior to its submittal. Do not leave any lines on the proposal forms blank. Insert "No" or "N/A" [Not Applicable] on those lines where the proposing contractor is not considering. All proposal amounts shall be represented in written words and in figures. Should there be a conflict between the written words and the figures, the written words shall prevail. Prior to proposal opening, corrections may be inserted; however, changes must be initialed in ink by the person signing the original proposal or by their authorized representative. In cases where the total proposal amount does not equal the unit prices multiplied by the quantities indicated, the unit prices shall prevail. Proposals shall specify the name or legal entity of the company and, if one exists, the fictitious name under which business is conducted. 20 of 61
March 1, 2022, Item #6
Required
Proposal
Forms
(See
Section
V -
Documents
to
be
Executed
by
the
Proposer):
a.
Fee
Schedule
b.
Signature
Sheet
c.
Qualifications
d.
Statement
of
Financial
Responsibility,
Technical
Ability
and
Experience
e.
References
f.
Subcontractor/Supplier
List
g.
Non-Collusion
Affidavit
15. Proposal
Withdrawal:
A
proposing
contractor
may
withdraw
a
proposal
prior
to
the
time
set
for
the
opening
of
proposals
by
simply
making
a
request
in
writing
to
the
City;
no
explanation
is
required.
16. Collusion
Among
Proposing
Contractors:
Each
proposing
contractor,
by
submitting
a
proposal,
certifies
that
she
or
he
is
not
a
party
to
any
collusive
action,
fraud
or
any
action
that
may
be
in
violation
of
the
Sherman
Antitrust
Act.
The
proposing
contractor
certifies
that
she
or
he
has
not
offered
or
received
any
kickbacks
or
inducements
from
any
other
proposing
contractor,
supplier,
manufacturer,
or
subcontractor
in
connection
with
the
proposal
and
that
she
or
he
has
not
conferred
on
any
public
employee
having
official
responsibility
for this
procurement
transaction
any
payment,
loan,
subscription,
advance,
deposit
of
money,
services
or
anything
of
more
than
nominal
value.
Any
or
all
proposals
shall
be
rejected
if
there
is
any
reason
for
believing
the
collusion
exists
among
the
proposing
contractors.
The
City
may
or
may
not,
at
its
discretion,
accept
future
proposals
for
the
same
work
from
participants
in
such
collusion.
More
than
one
proposal
from
an
individual,
firm,
partnership,
corporation,
or
association
under
the
same
or
different
names
may
be
rejected.
Reasonable
grounds
for
believing
that
a
proposing
contractor
has
interest
in
more
than
one
proposal
for
the
work
being
proposed
may
result
in
rejection
of
all
proposals
in
which
the
proposing
contractor
is
believed
to
have
interest.
Certification
of
Independent
Price
Determination:
The
proposing
contractor
certifies
that
the
prices
submitted
in
response
to
the
solicitation
have
been
arrived
at
independently
and
without
any
consultation,
communication,
or
agreement
with
any
other
proposing
contractor
or
competitor
relating
to
those
prices,
the
intention
to
submit
a
proposal,
or
the
methods
or
factors
used
to
calculate
the
prices
proposal.
17. Debarment:
By
submitting
a
proposal,
the
proposing
contractor
certifies,
under
penalty
of
perjury,
that
neither
it,
nor
any
person
associated
with
it
in
the
capacity
of
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owner, partner, director, officer, or manager (1) are currently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from submitting proposals for contracts issued by any city or political subdivision or agency of the State of California or the Federal Government; (2) have (within the three (3) year period preceding the submission of the 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 presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with the commission of any of the offenses described in clause (2), above; and (4) have (within the three (3) year period preceding the submission of the proposal) had one or more public transaction (federal, state or local) terminated for cause or default.
18. Errors in Extension: If the unit price and the extension price are at variance, the unit price shall prevail.
19. Evidence of Responsibility: Upon request of the City, a proposing contractor whose proposal is under consideration for the award of the Agreement shall submit promptly to the City satisfactory evidence showing the proposing contractor's financial resources, experience in similar type work and organizational resources available for performance of the Agreement.
20. Examination of Agreement Documents: Proposing contractors shall thoroughly examine, be familiar with the specifications, and verify any representations made by the City upon which the proposer will rely. The failure or omission of any proposer to examine any Agreement document, form, instrument, addendum or other document, or to acquaint themselves with conditions therein existing, shall in no way relieve any proposer from obligations with respect to their proposal or to the Agreement. The submission of a proposal shall be taken as prima facie evidence of compliance with this section.
21. Exceptions: Proposing contractors taking exception to any part or section of the solicitation shall indicate such exceptions on the proposal form. Failure to indicate any exception will be interpreted as the proposing contractor's intent to comply fully with the requirements as written. Conditional or qualified proposals, unless specifically allowed, shall be subject to rejection in whole or in part.
22. Expenses Incurred in Preparing Proposals: City accepts no responsibility for any expense incurred by the proposing contractor in the preparation and presentation of a proposal. Such expenses shall be borne exclusively by the proposing contractor.
23. Insurance: The selected contractor must furnish the City with proof of insurance.
Notice of insurance cancellation shall be made to the City Clerk, in writing, 30 days prior to cancellation or material changes in insurance coverage. 22 of 61
March 1, 2022, Item #6
Coverage: Contractor shall obtain and maintain during the life of the Agreement all of the following insurance coverage:
a. Comprehensive General Liability, including premises-operations, products/completed, broad form property damage, and blanket Contractual liability with the following coverages:
i. $1,000,000 per person/per occurrence
ii. $2,000,000 aggregate per occurrence
iii. 500,000 property damage per occurrence
b. Automobile Liability, including owned, hired, and non-owned vehicles with the following insurance coverages:
i. $1,000,000 combined single limit
c. Workers' Compensation, in statutory amount. All of the endorsements that are required above shall be obtained for the policy of Workers' Compensation insurance.
Endorsements: Endorsements shall be obtained so that each policy contains the following three provisions:
a. Additional Insured. (Not required for Professional and Omissions Liability Insurance or Workers' Compensation.)
The City must be named as an "Additional Insured" on the policy. The Additional Insured Endorsement is generally a separate endorsement form and rarely is it acceptable to name the City as "Additional Insured" only on the face of the Insurance Certificate. A Blanket Endorsement authorized by the Insurance Carrier is acceptable, but we still need the form on file. The preferred language for the Endorsement form is: "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insured's with respect to this subject property and Contract with City."
b. Notice. "Said policy shall not terminate, nor shall it be canceled until thirty (30) days after written notice is given to City."
c. Primary Coverage. "The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
Insurance Certificates: Contractor shall provide the City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and 23 of 61
March 1, 2022, Item #6
content approved by City, prior to beginning work under the Agreement (refer to the Insurance Code of the State of California). The issuing company:
a. Shall be an "admitted surety" or an insurance company listed by the State Insurance Commissioner; and
b. Shall have a rating in the latest Best's Rating Guide of "A-" or better and Class VI or better; or be "treasury listed" for the size of risk to be undertaken.
In the event that the company does not satisfy subsection (b) above, the City Attorney or City Manager may only approve such company if the small size of the insurance or surety obligation or other risk factor justify approval, and satisfactory evidence is produced by the company that its financial responsibility and performance capability are sufficient to insure or secure adequately the risk obligation (see City Council Resolution 90-082).
24. Qualifications of Proposing Contractors: The proposing contractor may be required, before the award of Agreement, to show to the complete satisfaction of the Director of Public Works that it has the necessary qualifications, and ability to provide the service(s) specified therein in a satisfactory manner. City may make reasonable investigations deemed necessary and proper to determine the ability of the proposing contractor to perform the work, and the proposing contractor shall furnish to the City all information for this purpose.
25. Antitrust: By entering into the Agreement, the selected contractor conveys, sells, assigns, and transfers to the City all rights, titles, and interest it may now have or hereafter acquire under the antitrust laws of the United States and the State of California that relate to the particular goods or services purchased or acquired by the City under said Agreement.
26.Applicable Law: The Agreement shall be governed in all respects by the laws of the State of California, and any litigation with respect thereto shall be brought in the courts of the State of California. The Contractor shall comply with applicable federal, state, and local laws and regulations.
27.Assignment: The selected contractor shall not assign, transfer, convey, sublet, or otherwise dispose of any award or any or all of its rights, title, or interest therein, without the prior written consent of the Director of Public Works, or their designee.
28. Certificates and Licenses: The selected contractor shall have valid licenses and certificates required for performance of the work. Copies shall be delivered to the City no later than ten (10) days, excluding Sundays and legal holidays, after the Contractor receives the notice of award from the City. Current copies of licenses and certificates shall be provided to the City within twenty-four (24) hours of demand at any time during the Agreement term. Licenses and certificates required for this Agreement include, but are not limited to:
a. A City of Poway Business Certificate; and
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March 1, 2022, Item #6
b. Valid California Class A License for all drivers
29. Change in the Scope of Work: The City may order changes in the work consisting of additions, deletions or other revisions within the general scope of the Agreement.
No claims may be made by the selected contractor that the scope of the project or of the Contractor's services has been changed, requiring changes to the amount of compensation to the Contractor or other adjustments to the Agreement, unless such changes or adjustments have been made by written agreement to the Agreement signed by the Director of Public Works, or their designee, and the selected contractor.
If the selected contractor believes that any particular work is not within the scope of the project, is a material change, or will otherwise require more compensation to the Contractor, the selected contractor must immediately notify the Director of Public Works in writing of this belief. If the Director of Public Works believes that the particular work is within the scope of the Agreement as written, the selected contractor will be ordered to and shall continue with the work as changed and at the cost stated for the work within the scope.
30. Extra Work: All extra work is to be approved in writing by the Director of Public Works, or their designee, before the work is performed. In no event will extra work be paid for without proper authorization. Work not identified in the Agreement will be billed on a time and materials basis using the same standard hourly rate (which shall include labor, vehicle use, tools and equipment, overhead and profit). For the purpose of proposal evaluation, proposing contractors shall enter on the Fee Schedule the hourly rates for the requested categories.
31. Failure to Deliver: In the event of failure of the selected contractor to deliver services in accordance with the Agreement terms and conditions, the City, after due oral or written notice, may procure the services from other sources and hold the Contractor responsible for any resulting additional purchase and administrative costs. This remedy may be in addition to any other remedies that the City may have.
32. Failure to Enforce: Failure by the City at any time to enforce the provisions of the Agreement shall not be construed as a waiver of any such provision. Such failure to enforce shall not affect the validity of the Agreement or any part thereof or the right of the City to enforce any provision at any time in accordance with its terms.
33. Force Maieure Clause: The parties to the Agreement shall be excused from performance during the time and to the extent that they are prevented from obtaining, delivering or performing by act of God, fire, strike, loss, shortage of public transportation facilities, walkout or commandeering of materials, products, or facilities by the government provided that the nonperformance is not due to the fault of neglect of the Contractor/supplier. In such cases, however, satisfactory evidence thereof must be presented.
34. Indemnification: The selected contractor shall act as an independent contractor and will not be an agent or employee of the City. Contractor shall not represent or otherwise hold out itself or any of its subcontractors, sub-subcontractors, directors, 25 of 61
March 1, 2022, Item #6
officers, partners, employees, or agents to be an agent or employee of the City.
City and its elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "lndemnitees") shall have no liability to Contractor or any other person for, and Contractor shall indemnify, defend, protect and hold harmless lndemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims"), which lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of or allegedly caused by Contractor's use of the City's property or Contractor's performance under this Agreement.
If any action or proceeding is brought against lndemnitees by reason of any of the matters against which Contractor has agreed to indemnify lndemnitees as provided above, Contractor, upon notice from City, shall defend lndemnitees at Contractor's expense by counsel acceptable to City, such acceptance not to be unreasonably withheld. lndemnitees need not have first paid for any of the matters to which lndemnitees are entitled to indemnification in order to be so indemnified. The insurance required to be maintained by Contractor under Section II, Item 23, shall ensure Contractor's obligations under this section, but the limits of such insurance shall not limit the liability of Contractor hereunder. Contractor shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Contractor is carrying and maintaining; however, if Contractor fails to take such action as is necessary to make a claim under any such insurance policy, Contractor shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Contractor under any insurance policy or policies required under Section II, Item 23. The provisions of this section shall survive the expiration or earlier termination of this Agreement. The provisions of this section do not apply to claims occurring as a result of this City's sole negligence or willful acts or omissions. The parties agree to cooperate fully in the resolution of any claims for such liability, loss or damage.
35.Assumption of Risk: Except for injuries to persons caused by the willful misconduct of any lndemnitee and not covered by insurance maintained, or required by this Agreement to be maintained, by Contractor: (a) Contractor shall assume the risk of any and all injury and damage to the personnel (including death) and property of Contractor that occurs in the course of, or in connection with, the performance of Contractor's obligations under this Agreement; and (b) Contractor agrees that the lndemnitees are not to be liable for injury or damage which may be sustained by the person, goods or property of Contractor or its employees in connection with Contractor's performance its obligations under this Agreement.
36. Liquidated Damages: Work Not Performed or Work Performed in an Unsatisfactory Manner -In the event the selected contractor is prevented from completing the work as scheduled because of reasons other than emergency circumstances (which will be reviewed by the Director of Public Works to determine 26 of 61
March 1, 2022, Item #6
validity), the selected contractor, in addition to not being paid for the unperformed work, will be assessed damages in the amount of 100% of the value of the work not performed, according to the schedule of prices agreed upon.
37. Repairs: All damages or alterations to City property resulting from the performance of work under these specifications during the term of contract shall be repaired or replaced immediately and in kind, to the satisfaction of the Director of Public Works and at no cost to the City. Repairs or replacements not completed to the satisfaction of the Director shall be deducted from the contract payment to cover costs.
38. Security and Safety: All employees of the Contractor shall be screened using previous work records for ability, reliability and eligibility. Complete employee records are to be maintained by the Contractor on each individual employed by the Contractor.
Only regularly assigned employees or crews shall perform work on City premises during authorized hours.
39. Oral Statements: No oral statement of any person shall modify or otherwise affect the terms, conditions, or specifications stated in this Agreement. All modifications to the Agreement must be made in writing by the City.
40. Payment Terms: Unless otherwise indicated in the proposal form, payment terms will be net thirty (30) days. The City will pay the Contractor within thirty (30) days after the receipt of a correct invoice. The City will pay the Contractor within thirty (30) days after the receipt of a correct invoice for reasonable work allocable to the Contractor or after the date of acceptance of work that meets contract requirements, whichever event occurs later. Each assignment will be invoiced separately.
41. Right of Setoff: Whenever, under the Agreement, any sum of money shall be recoverable from or payable by the selected contractor to the City, the same amount may be deducted from any sum due to the Contractor under the Agreement or under any other agreement between the Contractor and the City. The rights of the City are in addition and without prejudice to any other right the City may have to claim the amount of any loss or damage suffered by the City on account of acts or omissions of the Contractor.
42. Suspension or Termination Without Cause: The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the selected contractor at least ten (10) working days prior written notice with cause or sixty (60) days without cause. If the City suspends or terminates a portion of this Agreement, such suspension or termination shall not make void or invalidate the remainder of this Agreement.
In the event this Agreement is terminated pursuant to this section, the City shall pay the Contractor for services rendered up to the time of termination. Upon termination of the Agreement pursuant to this section, the Contractor shall submit the final invoice to the City within ten (10) working days of the last date of work performed 27 of 61
March 1, 2022, Item #6
43. Wage Rate: Pursuant to the Labor Code of the State of California, or local laws applicable thereto, the City has ascertained that the Contractor shall be responsible for paying at least minimum wage as established by the State of California, Department of Industrial Relations (Labor Code section 1770). The selected contractor and all subcontractors are required to keep accurate payroll records. This section specifies the content thereof, inspection and duplication procedures, and certain notices required of the Contractor pertaining to their location. [Remainder of Page Left Blank Intentionally]
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March 1, 2022, Item #6
SECTION Ill
TECHNICAL SPECIFICATIONS
1. Purpose: The purpose of this contract is to provide comprehensive Trucking and Operator Services for the City of Poway. The City proposes to contract with a service agency that is proactive in their work standards and can meet the qualifications set forth in this proposal package.
2. Method of Performing Work:
a. Methods of Operation: The Contractor shall be responsible for the safety, adequacy, and efficiency of the Contractor's personnel, equipment and methods. The approval of the City of any plan or method of work proposed by Contractor shall not relieve the Contractor of any responsibility thereof, and such approval shall not be considered an assumption by the City of any kind of liability, and the Contractor shall have no claim under this contract on account of failure or inefficiency of any plan or method so approved.
Such approval shall be considered and shall mean the City has no objection to the Contractor's use or adoption at the Contractor's own risk and responsibility, of the plan or method so proposed by the Contractor. b. Scheduling of Operations: Contractor shall perform this work at such time as to minimize disturbance or interference to residents, and pedestrian or vehicle circulation. Work described, as being performed daily shall be performed Monday through Friday between the hours of 7:00 a.m. to 6:00 p.m. unless otherwise authorized. The driver's start time begins upon arrival at the job site, at the scheduled time given. The driver's stop time is when the onsite Project Manager signs the driver's time sheet. If the driver is asked to dump a load of material outside of the City limits, an additional 30 minutes will be posted to the driver's time sheet.
c. Holiday Operations: There shall be no work on weekends or holidays on which City Hall is closed. Deviation from these hours will not be permitted without the prior consent of the Director, except for emergencies involving immediate hazard to persons or property.
d. Safety: All work performed under this Agreement shall be performed in such manner as to provide maximum safety to the public and comply with all safety standards required by Cal-OSHA. The City reserves the right to issue restraint or cease and desist orders to the Contractor when unsafe or harmful acts are observed or reported relative to the performance of the work under this agreement.
3. Daily Tickets: Separate daily time tickets shall be submitted by the Contractor with the correct working hours to the Onsite Project Manager or to the City's Public Works offices within 24 hours.
4. Personnel: The City shall, throughout the life of the Agreement, have the right of reasonable rejection and approval of staff or subcontractors assigned to the work by 29 of 61
March 1, 2022, Item #6
the selected contractor. If the City reasonably rejects staff or subcontractors, the selected contractor must provide replacement staff or subcontractors satisfactory to the City. The day-to-day supervision and control of the selected contractor's employees and subcontractors is the sole responsibility of the selected contractor.
Drivers are to hold Class A Driver's Licenses with proper endorsements to operate dump trucks and must have a minimum five years of experience working in a construction work zone. The driver must have his/her valid license with proper endorsements in his/her possession while performing on the job for the City of Poway.
They will adhere to all code standards of the City of Poway, EPA and any other state and federal requirements.
5. Productive Man-hours: The determination of the total daily productive man-hour requirements for the performance of all services herein is the sole responsibility of the Contractor. It is of the utmost importance that the Contractor utilizes skilled and productive manpower in order to satisfactorily furnish the required level of service specified in this solicitation. Failure on the part of the Contractor to utilize skilled and productive manpower may produce unsatisfactory results, which may cause the Director of Public Works to make adjustments to the Contractor's invoice(s) for unsatisfactory or omitted work.
6. Local Office: The selected contractor shall maintain a local office within the County of San Diego and shall have a competent representative available during work hours to discuss matters pertaining to the contract and who can make authoritative decisions.
At all times during the term of this contract, the selected contractor shall provide the City with a twenty-four (24) hour per day, seven (7) day per week emergency phone number. An answering service is not acceptable, except when forwarding oral complaints (which shall be followed by written notice). Within two (2) hours after an emergency call is made requesting the contractor to perform emergency services, the contractor shall be on site to commence the required service.
7. Cooperation and Coordination with other Contractors: The Contractor shall cooperate with all other contractors who may be performing work on behalf of the City and workers who may be employed by the City on any work in the vicinity of the work to be done under this Agreement. The Contractor's operation shall interfere to the least possible extent with the work of such contractors or workers. Any difference or conflict that may arise between the Contactor and other contractors, or between the Contractor and City workers, with respect to execution of their work, shall be adjusted and determined by the City. If the work of the Contractor is delayed because of any acts or omissions of any other contractor or contractors, the Contractor shall have no claim against the City on that account other than for an extension of time.
8. Sound Control: Contractor shall comply with all local sound control and noise level rules, regulations and ordinances that apply to any work performed pursuant to this contract. Operations that generate excess noise, e.g. running any type of power 30 of 61
March 1, 2022, Item #6
equipment, would not be allowed before 8 a.m. so as not to disturb the residents of the area.
9. Hazardous Conditions: Contractor shall maintain all work sites free of hazards to persons and/or property resulting from their operation. Any hazardous conditions noted by the Contractor that is or is not a result of their operation shall immediately be reported to the City of Poway Public Works Department at (858) 668-4700 or the designated Contract Specialist.
10. Technical Specifications:
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a. Trucking services and operators will be used in conjunction with ongoing City projects and maintenance activities.
b. All maintenance, repairs and fuel will be provided by the Contractor. c. All trucks are to be California DOT approved and in good mechanical condition. All trucks shall be not more than 10 years old at the start of each contract cycle. The trucks may be checked at any time by the City's Vehicle Maintenance Supervisor or designee(s) to ensure they meet all appropriate standards.
d. Trucks and drivers are required to be available within a 24-hour (weekday) notification.
e. City onsite Project Managers and Supervisors responsible for an operation that requires dump trucks and drivers will continually evaluate the performance of the trucks and drivers. Termination of services can occur if the drivers are not performing to the satisfaction of the onsite Project Manager.
f. Rental of the trucks and drivers will be for a minimum of six hours per day (Monday through Friday between hours of 7:00 a.m. to 6:00 p.m.), not including down time for maintenance or repair.
g. Cost is all-inclusive for the operation of the dump trucks and drivers performing specified work.
h. The maximum number of trucks per project will up to 5 (five). i. Trucks will be 10-yard dump trucks or "Big 10 dump trucks" or any combination of these vehicles.
j. Trucks must be able to haul a minimum of 15 tons.
k. Trucks must be able to dump into a paver and be pushed by a paver without damage to glad hands, apron or mud flaps.
March 1, 2022, Item #6
32 of
61 I.
Any trucks
with
a
potential
of
damaging
the
paver
will
be
excused
from
the
project.
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of
Page
Left
Blank
Intentionally]
March 1, 2022, Item #6
SECTION IV
DOCUMENTS TO BE EXECUTED BY THE PROPOSER
[Remainder of Page Left Blank Intentionally]
33 of 61
March 1, 2022, Item #6
FEE SCHEDULE
Price(s) shall include overhead:
Service Type: One Operator, One Vehicle
Mon-Fri Total$
7:00 am -6:00 pm Total (In Words):
Total$
After Hours & Saturday Total (In Words):
Total$
Sunday & Holidays Total (In Words):
34 of 61
March 1, 2022, Item #6
SIGNATURE SHEET
Proposer agrees that her or his proposal shall remain open and not be withdrawn for a period of ninety (90) days from the deadline submittal. Proposer also agrees that if they are the successful bidder she or he will sign and return the Agreement within ten (10) working days after receipt of Notice of Award along with the certificates of insurance and endorsements and other certifications as required under the RFP Documents. Failure to complete all information may render your proposal non-responsive [***Indicate not applicable ("N/A") where appropriate.***]
Name of Proposer/Company: ____________________ _
Address: ----------------------------
Telephone No.: (..___ _ __,) _________ Facsimile No.: ( __ ~) ____ _ Email: -----------------------------
State of California
Contractor's License No. ___________ Classifications(s) ____ _ Expiration Date: ______ _
Type of Firm (select one): D Individual D Partnership D Corporation D M/WBE D Incorporated □Traded D Sole Owner D Other
Department of Industrial Relations Registration Number:
SSN or Federal ID Number: ---------------------
By signing below, I attest that I am an authorized representative/agent, that I am authorized by my signature to bind this company contractually and certify under penalty of perjury the accuracy of the representations made on the Bid and related forms.
DATE:
SIGNATURE: --------------------------
PRINTED NAME:
TITLE: -----------------------------
35 of 61
March 1, 2022, Item #6
TRUCKING AND OPERATOR SERVICES
Company Information: Please provide the following information:
Sales Information:
1. Company total dollar sales for 2020
2. Has your company ever filed for bankruptcy? Yes: No:
If yes explain in detail the reason why, filing date and current status:
Management Information: (Provide attachments if spaces provided is insufficient)
1. Enclose the resume of your proposed Superintendent and other key Personnel:
2. 3.
4. 5.
6. 7.
Total number of employees in San Diego?
Describe your company quality assurance program:
Describe in detail what training you currently have in house or under Contract for your employees:
Describe in detail your safety program (Attach any supporting documentation):
Has your company ever been terminated on a Contract for unsatisfactory performance? Yes: No: __ If yes, describe in detail:
Does your company have 24 hours emergency
services? Yes No
8. Provide your financial reference with contact and phone number:
36 of 61
March 1, 2022, Item #6
9. 10.
Experience:
Is your company presently providing Trucking and
Operator Services for any major accounts similar to Yes the scope of this RFP?
Is your company presently providing Trucking and
Operator Services for any major accounts located
in the County of San Diego similar to scope of this Yes RFP?
I certify that all the above information is correct to the best of my knowledge:
Signature of
Proposer
37 of 61
Date:
[Remainder of Page Left Blank Intentionally]
No
No
March 1, 2022, Item #6
STATEMENT OF FINANCIAL RESPONSIBILITY, TECHNICAL ABILITY AND
EXPERIENCE
The proposing contractor is required to state what work of a similar character to that included in the proposed contract she or he has successfully performed within the past two years and give references that will enable the City to judge responsibility, experience, skill, and business training. The proposing contractor, undersigned, submits herewith a statement of (her or his) financial organization to verify the undersigned's order of responsibility and authority as well as sufficiency of staff to perform required work.
The undersigned submits below a statement of the work of similar character to that included in the proposed contract, which she or he has successfully performed. At a minimum, this document should include:
■ The names of the company and/or individual(s) who will be assigned to fulfill contractual obligations.
■ All subcontractors, with qualification summaries of all individuals. ■ Similar past work performed by the firm/individual making this proposal. 38 of 61
Signature
of
Proposer:
Date:
-----------------
March 1, 2022, Item #6
REFERENCES
Provide least three (3) references:
Reference Contract Type of Business Start & Finish
Name/Address/Phone Amount (Government, Dates of
Private, etc.) Contract
39 of 61
March 1, 2022, Item #6
SUBCONTRACTORS
List
of
Subcontractors:
The
following
information
relative
to
the
Subcontractors
and
suppliers
proposed
to
be
used
must
be
furnished
to
the
City
as
part
of
this
proposal.
If
all
work
is
to
be
done
without
Subcontractors,
write
"none"
here:
-------
Name
under
which
Class/License
Address
of
Office
or
Type
of
Work
Subcontractor
is
Number
Shop
and
Telephone
Subcontractor
Will
Licensed
No.
Do
Suppliers
Name
of
Supplier
Address
&
Telephone
No.
Type
of
Material
[Remainder
of
Page
Left
Blank
Intentionally]
40 of
61 March 1, 2022, Item #6
NON-COLLUSION AFFIDAVIT
To the City Council, City of Poway, California:
The undersigned in submitting a proposal for performing the following work by Agreement, being duly sworn, deposes and says:
That she or he has not, either directly or indirectly, entered into any agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive proposing in connection with such Agreement, for:
TRUCKING AND OPERATOR SERVICES
Business Name: -----------
Business Address: -----------
Signature of Proposer: __________ _
Place of Residence:
Subscribed and sworn before me this ___ day of _________ , 2021.
Notary Public in and for the County of
,State of California -----------
My commission expires __________ _
(This affidavit shall be executed by the successful Proposer in accordance with instructions in the Federal Requirements, but Proposer may execute the affidavit on this page at the time of submitting proposal.)
41 of 61
March 1, 2022, Item #6
42 of 61
APPENDIX A
SAMPLE AGREEMENT
[Remainder of Page Left Blank Intentionally]
March 1, 2022, Item #6
City of Poway
STANDARD AGREEMENT FOR SERVICES
This Agreement, entered into this ___ day of ______ , 20_, by and between the CITY OF POWAY (hereinafter referred to as "City") and ____________ (hereinafter referred to as "Consultant").
RECITALS
WHEREAS, City desires to obtain the services of a private Consultant to perform for the ---------------------------- (Project); and
WHEREAS, Consultant is a(n) ________________ _
Consultant and has represented that Consultant possesses the necessary qualifications to provide such services; and
WHEREAS, City has authorized the preparation of an agreement to retain the services of Consultant as hereinafter set forth.
NOW, THEREFORE, IT IS MUTUALLY AGREED THAT CITY DOES HEREBY RETAIN CONSUL TANT ON THE FOLLOWING TERMS AND CONDITIONS:
1. Scope of Services.
Consultant shall provide services as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
2. Compensation and Reimbursement.
City shall compensate and reimburse Consultant as provided in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
3. Term of Agreement.
The term of this Agreement shall be as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
4. Termination.
This Agreement may be terminated with or without cause by City.
Termination without cause shall be effective only upon 60-day written notice to Consultant. During said 60-day period Consultant shall perform all consulting services in 43 of 61
March 1, 2022, Item #6
accordance with this Agreement. This Agreement may be terminated by City for cause in the event of a material breach of this Agreement, misrepresentation by Consultant in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by City. Termination for cause shall be effected by delivery of written notice of termination to Consultant. Such termination shall be effective upon delivery of said notice.
5. Confidential Relationship.
City may from time to time communicate to Consultant certain information to enable Consultant to effectively perform the services. Consultant shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of the City. Consultant shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services. The foregoing obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of Consultant, hereafter disclosed in publicly available sources of information; (iii) is now in the possession of Consultant without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to Consultant by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party.
Consultant shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this contract without the prior written consent of the City. In its performance hereunder, Consultant shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation.
6. Office Space and Clerical Support.
Consultant shall provide its own office space and clerical support at its sole cost and expense.
7. Covenant Against Contingent Fees.
Consultant declares that it has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, that it has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or making of the Agreement.
For breach of violation of this warranty, City shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee.
8. Ownership of Documents.
All memoranda, reports, plans, specifications, maps and other documents 44 of 61
March 1, 2022, Item #6
prepared or obtained under the terms of this Agreement shall be the property of City and shall be delivered to City by Consultant upon demand.
9. Conflict of Interest and Political Reform Act Obligations.
During the term of this Agreement Consultant shall not act as Consultant or perform services of any kind for any person or entity whose interests conflict in any way with those of the City of Poway. Consultant shall at all times comply with the terms of the Political Reform Act and the local conflict of interest code. Consultant shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Consultant has a financial interest as defined in Government Code Section 87103. Consultant represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the City.
"Consultant" means an individual who, pursuant to a contract with a state or local agency:
45 of 61
(A) Makes a governmental decision whether to:
1. Approve a rate, rule or regulation;
2. Adopt or enforce a law;
3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar
authorization or entitlement;
4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval;
5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract;
6. Grant City approval to a plan, design, report, study, or similar item;
7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or (8) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code.
DISCLOSURE DETERMINATION:
[8J 1. Consultant/Consultant will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and 8 above.
No disclosure required.
March 1, 2022, Item #6
D 2. Consultant/Consultant will be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. As a result, Consultant/Consultant shall be required to file a Statement of Economic Interest with the City Clerk of the City of Poway in a timely manner as required by law.
Department Director
10. No Assignments.
Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void.
11. Maintenance of Records.
Consultant shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the contract period and for three (3) years from the date of final payment under this Agreement, for inspection by City and copies thereof shall be furnished, if requested.
12. Independent Consultant.
At all times during the term of this Agreement, Consultant shall be an independent Consultant and shall not be an employee of the City of Poway. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultant accomplishes such services.
13. Licenses, Permits, Etc.
Consultant represents and declares to City that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for Consultant to practice its profession.
14. Consultant's Insurance.
Consultant shall provide insurance as set forth in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 46 of 61
March 1, 2022, Item #6
15. Indemnification.
(a)
For
Claims
(as
defined
herein)
other
than
those
alleged
to
arise
from
Consultant's
negligent
performance
of
professional
services,
City
and
its
respective
elected
and
appointed
boards,
officials,
officers,
agents,
employees
and
volunteers
(individually
and
collectively,
"lndemnitees")
shall
have
no
liability
to
Consultant
or
any
other
person
for,
and
Consultant
shall
indemnify,
protect
and
hold
harmless
lndemnitees
from
and
against,
any
and
all
liabilities,
claims,
actions,
causes
of
action,
proceedings,
suits,
damages,
judgments,
liens,
levies,
costs
and
expenses,
including
reasonable
attorneys'
fees
and
disbursements
(collectively
"Claims"),
which
lndemnitees
may
suffer
or
incur
or
to
which
lndemnitees
may
become
subject
by
reason
of
or
arising
out
of
any
injury
to
or
death
of
any
person(s),
damage
to
property,
loss
of
use
of
property,
economic
loss
or
otherwise
occurring
as
a
result
of
Consultant's
negligent
performance
under
this
Agreement,
or
by
the
negligent
or
willful
acts
or
omissions
of
Consultant,
its
agents,
officers,
directors,
sub-Consultants
or
employees.
(b)
For
Claims
alleged
to
arise
from
Consultant's
negligent
performance
of
professional
services,
lndemnitees
shall
have
no
liability
to
Consultant
or
any
other
person
for,
and
Consultant
shall
indemnify
and
hold
harmless
lndemnitees
from
and
against,
any
and
all
Claims
that
lndemnitees
may
suffer
or
incur
or
to
which
lndemnitees
may
become
subject
by
reason
of
or
arising
out
of
any
injury
to
or
death
of
any
person(s),
damage
to
property,
loss
of
use
of
property,
economic
loss
or
otherwise
to
the
extent
occurring
as
a
result
of
Consultant's
negligent
performance
of
any
professional
services
under
this
Agreement,
or
by
the
negligent
or
willful
acts
or
omissions
of
Consultant,
its
agents,
officers,
directors,
sub-Consultants
or
employees,
committed
in
performing
any
of
professional
services
under
this
Agreement.
For
Claims
alleged
to
arise
from
Consultant's
professional
services,
Consultant's
defense
obligation
to
lndemnitees
shall
include only
the
reimbursement
of
reasonable
defense
costs
and
attorneys'
fees
to
the
extent
caused
by
Consultant's
negligence.
(c)
The
foregoing
obligations
of
Consultant
shall
not
apply
to
the
extent
that
the
Claims
arise
from
the
sole
negligence
or
willful
misconduct
of
City
or
its
elected
and
appointed
boards,
officials,
officers,
agents,
employees
and
volunteers.
(d)
In
any
and
all
Claims
against
City
by
any
employees
of
the
Consultant,
anyone
directly
or
indirectly
employed
by
it or
anyone
for
whose
acts
it may
be
liable,
the
indemnification
obligation
under
this
Section
15 shall
not
be
limited
in
any
way
by
any
limitation
on
the
amount
or
type
of
damages,
compensation
or
benefits
payable
by
or
for
the
Consultant
under
worker's
compensation
acts,
disability benefit
acts
or
other
employee
benefit
acts.
(e)
Consultant
shall,
upon
receipt
of
written
notice
of
any
Claim,
promptly
take
all
action
necessary
to
make
a
claim
under
any
applicable
insurance
policy
or
policies
Consultant
is
carrying
and
maintaining;
however,
if Consultant
fails
to
take
such
action
as
is
necessary
to
make
a claim
under
any
such
insurance
policy,
Consultant
shall
reimburse
City
for
any
and
all
costs,
charges,
expenses,
damages
and
liabilities
incurred
by
City
in
making
any claim
on
behalf
of
Consultant
under
any
insurance
policy
or
policies
required
pursuant
to
this
Agreement.
47 of
61 March 1, 2022, Item #6
(f) The obligations described in Section 15(a) through (e) above shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person indemnified pursuant to this Section
15. (g) The rights and obligations of the parties described in this Section 15 shall survive the termination of this Agreement.
16. Assumption of Risk.
Except for injuries to persons caused by the willful misconduct of any lndemnitee and not covered by insurance maintained, or required by this Agreement to be maintained, by Consultant: (a) Consultant hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Consultant that occurs in the course of, or in connection with, the performance of Consultant's obligations under this Agreement, including but not limited to Consultant's Scope of Services; and (b) it is hereby agreed that the lndemnitees are not to be liable for injury or damage which may be sustained by the person, goods or property of Consultant or its employees in connection with Consultant's performance its obligations under this Agreement, including but not limited to Consultant's Scope of Services.
17. Consultant Not an Agent.
Except as City may specify in writing, Consultant shall have no authority, expressed or implied, to act on behalf of City in any capacity whatsoever as an agent.
Consultant shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
18. Personnel.
Consultant shall assign qualified and certified personnel to perform requested services. The City shall have the right to review and disapprove personnel for assignment to Poway projects.
City shall have the unrestricted right to order the removal of any person(s) assigned by Consultant by giving oral or written notice to Consultant to such effect.
Consultant's personnel shall at all times comply with City's drug and alcohol policies then in effect.
19. Notices.
Notices shall be given as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof.
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March 1, 2022, Item #6
20. Governing Law, Forum Selection and Attorneys' Fees.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Each party to this Agreement consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth in Exhibit "A" hereto. Any action to enforce or interpret the terms or conditions of this Agreement shall be brought in the Superior Court in San Diego County, Central Division, unless the parties mutually agree to submit their dispute to arbitration. Consultant hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. The prevailing party in any such action or proceeding shall be entitled to recover all of its reasonable litigation expenses, including its expert fees, attorneys' fees, courts costs, arbitration costs, and any other fees. Notwithstanding the foregoing, in the event that the subject of such an action is compensation claimed by Consultant in the event of termination, Consultant's damages shall be limited to compensation for the 60-day period for which Consultant would have been entitled to receive compensation if terminated without cause, and neither party shall be entitled to recover their litigation expenses.
21. Gender.
Whether referred to in the masculine, feminine, or as "it," "Consultant" shall mean the individual or corporate Consultant and any and all employees of Consultant providing services hereunder.
22. Counterparts.
This Agreement (and any amendments) may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Documents delivered by telephonic facsimile transmission shall be valid and binding.
23. Entire Agreement.
This Agreement shall constitute the entire understanding between Consultant and City relating to the terms and conditions of the services to be performed by Consultant. No agreements, representations or promises made by either party, whether oral or in writing, shall be of any force or effect unless it is in writing and executed by the party to be bound thereby.
24. Certification and Indemnification Regarding Public Employees' Retirement Law/Pension Reform Act of 2013.
Consultant hereby certifies that all persons providing services to City by Consultant are not current members of the California Public Employees' Retirement System (CalPERS) and shall not become members of CalPERS while providing services to City.
49 of 61
March 1, 2022, Item #6
Consultant further provides that in the event Consultant assigns a retired annuitant receiving a pension benefit from CalPERS to perform services for City, the retired annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B." Further, Consultant hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CalPERS in the event CalPERS determines the person assigned by Consultant to provide services to City has been misclassified.
25. Severability.
If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect. (Remainder of page intentionally left blank)
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March 1, 2022, Item #6
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first above written.
CITY OF POWAY
By: _________ _
Chris Hazeltine, City Manager
Date: ----------
ATTEST:
Carrie Gallagher, City Clerk
APPROVED AS TO FORM:
CONSULTANT
By:-----------
Name, Title
Date: ------------
By:-------------
Alan Fenstermacher, City Attorney
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March 1, 2022, Item #6
SPECIAL PROVISIONS
EXHIBIT "A"
A. Scope of Services.
Consultant agrees to perform consulting services as required by City, which shall consist of the _________ services further described in the Scope of Services submitted with the proposals dated _________ , which is included in this document as Attachment 1, and incorporated by reference, as if its contents were fully set forth herein. Consultant shall provide the necessary qualified personnel to perform the services.
B. Compensation and Reimbursement.
City shall pay Consultant a fee in accordance with the Fee Proposals submitted with the proposals dated __________ , which are included in this document as Attachment 2. Total fee is not to exceed $ _______ . Consultant's fee shall include and Consultant shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received.
In addition to said consulting fee, Consultant shall be reimbursed for all reasonable expenses, including lodging, telephone, and travel (air, auto, rail) necessarily incurred in performance of the services. Consultant shall bill City for such expenses as incurred, referencing this Agreement. All expenses shall be itemized and supported by receipts for amounts in excess of Twenty-Five Dollars ($25.00). Statements for reimbursement of expenses shall be paid within ten (10) days of approval by City. All air travel shall be billed at coach or special fare rates. Reimbursement for lodging is limited to travel from outside of San Diego County. Consultant shall receive prior authorization for air travel and lodging expenses. All other expenses shall be reimbursed in accordance with City's cash disbursement policies in effect at the time incurred.
C. Term of Agreement.
This Agreement shall be effective from the period commencing ________ , and ending _________ , unless sooner terminated by City as provided in the section of this Agreement entitled "Termination." This Agreement may be extended for up to two additional one-year periods upon approval in writing of the City Manager and Consultant. Upon expiration or termination of this Agreement, Consultant shall return to City any and all equipment, documents or materials and all copies made thereof which Consultant received from City or produced for City for the purposes of this Agreement.
D. Consultant's Insurance.
1. Coverages:
Consultant shall obtain and maintain during the life of this Agreement 52 of 61
March 1, 2022, Item #6
all of the following insurance coverages:
(a) Comprehensive General Liability. including premises- operations, products/completed, broad form property damage, and blanket contractual liability with the following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate. (b) Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit.
(c) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance.
2. Endorsements:
Endorsements shall be obtained so that each policy contains the following three provisions:
(a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City."
(b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City."
(c) Primary Coverage.
"The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City."
3. Insurance Certificates:
Consultant shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement.
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March 1, 2022, Item #6
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to the following addresses:
To City:
To Consultant:
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City of Poway
P.O. Box 789
Poway, CA 92074
Complete Name and Address
March 1, 2022, Item #6
EXHIBIT "B"
Cal Gov Code § 7522.56
Deering's California Codes are current through all 1016 chapters of the 2018 Regular Session and the November 6, 2018 Ballot Measures.
Deering's California Codes Annotated > GOVERNMENT CODE> Title 1 General > Division 7
Miscellaneous > Chapter 21 Public Pension and Retirement Plans > Article 4 California Public Employees' Pension Reform Act of 2013 § 7522.56. Provisions applicable to person receiving pension benefit from public retirement system; Section supersedes conflicting provisions (a) This section shall apply to any person who is receiving a pension benefit from a public retirement system and shall supersede any other provision in conflict with this section.
(b) A retired person shall not serve, be employed by, or be employed through a contract directly by, a public employer in the same public retirement system from which the retiree receives the benefit without reinstatement from retirement, except as permitted by this section.
(c) A person who retires from a public employer may serve without reinstatement from retirement or loss or interruption of benefits provided by the retirement system upon appointment by the appointing power of a public employer either during an emergency to prevent stoppage of public business or because the retired person has skills needed to perform work of limited duration.
(d) Appointments of the person authorized under this section shall not exceed a total for all employers in that public retirement system of 960 hours or other equivalent limit, in a calendar or fiscal year, depending on the administrator of the system. The rate of pay for the employment shall not be less than the minimum, nor exceed the maximum, paid by the employer to other employees performing comparable duties, divided by 173.333 to equal an hourly rate. A retired person whose employment without reinstatement is authorized by this section shall acquire no service credit or retirement rights under this section with respect to the employment unless he or she reinstates from retirement.
(e)
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(1) Notwithstanding subdivision (c), any retired person shall not be eligible to serve or be employed by a public employer if, during the 12-month period prior March 1, 2022, Item #6
to an appointment described in this section, the retired person received any unemployment insurance compensation arising out of prior employment subject to this section with a public employer. A retiree shall certify in writing to the employer upon accepting an offer of employment that he or she is in compliance with this requirement.
(2) A retired person who accepts an appointment after receiving unemployment insurance compensation as described in this subdivision shall terminate that employment on the last day of the current pay period and shall not be eligible for reappointment subject to this section for a period of 12 months following the last day of employment.
(f) A retired person shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement unless he or she meets one of the following conditions:
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(1) The employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and the appointment has been approved by the governing body of the employer in a public meeting. The appointment may not be placed on a consent calendar.
(2)
(A) Except as otherwise provided in this paragraph, for state employees, the state employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed state employment position before 180 days have passed and the appointment has been approved by the Department of Human Resources. The department may establish a process to delegate appointing authority to individual state agencies, but shall audit the process to determine if abuses of the system occur. If necessary, the department may assume an agency's appointing authority for retired workers and may charge the department an appropriate amount for administering that authority.
(B) For legislative employees, the Senate Committee on Rules or the Assembly Rules Committee certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar.
(C) For employees of the California State University, the Trustees of the California State University certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar.
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(3) The retiree is eligible to participate in the Faculty Early Retirement Program pursuant to a collective bargaining agreement with the California State University that existed prior to January 1, 2013, or has been included in subsequent agreements.
(4) The retiree is a public safety officer or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter. (g) A retired person who accepted a retirement incentive upon retirement shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement and subdivision (f) shall not apply. (h) This section shall not apply to a person who is retired from the State Teachers' Retirement System, and who is subject to Section 24214. 24214.5 or 26812 of the Education Code.
(i) This section shall not apply to (1) a subordinate judicial officer whose position, upon retirement, is converted to a judgeship pursuant to Section 69615, and he or she returns to work in the converted position, and the employer is a trial court, or (2) a retiree of the Judges' Retirement System or the Judges' Retirement System II who is assigned to serve in a court pursuant to Section 68543.5.
History
Added Stats 2012 ch 296 § 15 (AB 340), effective January 1, 2013. Amended Stats 2013 ch 528 § 11 (SB 13), effective October 4, 2013 (ch 528 prevails); ch 76 § 75 (AB 383), effective January 1, 2013; Stats 2014 ch 238 § 1 (AB 2476), effective January 1, 2015.
Annotations
Notes
2013 Amendment:
Substituted (1) "have passed" for "has passed" in the first sentence of subds (f)(I) and (f)(2); (2) "or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter" for "of firefighter" in subd (f)(4); and (3) "Judges' Retirement System" for "Judges' Retirement System I" in subd (i). 57 of 61
March 1, 2022, Item #6
GUARANTY
To the City of Poway, City Council, for:
TRUCKING AND OPERATOR SERVICES
The undersigned guarantees the work included in this project(s).
Should any of the materials or equipment prove defective or should the work as a whole prove defective, due to faulty workmanship, material furnished or methods of installation, or should the work or any part thereof fail to operate properly as originally intended and in accordance with the Plans and Specifications, due to any of the above causes, all within the number of months the site is to be maintained after date on which this Agreement is accepted by the City, or the date of recordation of Notice of Completion, whichever is the later, the undersigned agrees to reimburse the City upon demand, for its expenses incurred in restoring said work to the condition contemplated in said project, including the cost of any such equipment or materials replaced and the cost of removing and replacing any other work necessary to make such replacement or repairs, or upon demand by the City, to replace any such material and to repair said work completely without cost to the City so that said work will function successfully as originally contemplated.
The City shall have the unqualified option to make any needed replacements or repairs itself or to have such replacements or repairs done by the undersigned. In the event the City elects to have said work performed by the undersigned, the undersigned agrees that the repairs shall be made and such materials as are necessary shall be furnished and installed within a reasonable time after the receipt of demand from the City. If the undersigned shall fail or refuse to comply with his obligations under this guaranty, the City shall be entitled to all cost and expenses, including attorney's fees, reasonably incurred by reason of the said failure or refusal.
Contractor Signature
Date
**TO BE SUBMITTED WITH EXECUTED AGREEMENT**
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March 1, 2022, Item #6
WORKERS' COMPENSATION INSURANCE CERTIFICATE
Pursuant to Section 1861 of the State Labor Code, each Consultant to whom a public works Contract has been awarded shall sign the following certificate and shall submit same to the City of Poway prior to performing any work on the Agreement:
"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 will comply with such provisions before commencing the performance of the work of this Agreement." Consultant
By:
Title
Date
Section 3700 of the State Labor Code reads in part as follows:
"Every employer except the State shall secure the payment of compensation in one or more of the following ways:
(a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this state. (b) By securing from the Director of Industrial Relations a certificate of consent to self insure, either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-insure and to pay any compensation that may become due to his employees."
**TO BE SUBMITTED WITH EXECUTED AGREEMENT**
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March 1, 2022, Item #6
Addendum No. 1
Trucking and Operator Services
RFP No. 22-011
November 16, 2021
To All Prospective Bidders:
The following changes to the contract specifications and plans for the above referenced project. This addendum is hereby made part of the contract documents to the same extent as if they were originally included therein. Receipt of this addendum shall be acknowledged with the bid submittal for this project.
1. "All questions about the Contract and technical portions of the Request for Bid, must be submitted in writing by January 10, 2021 to the City Representative as follows: Amelia Dominguez, (858) 668-4757, [email protected]"
2. "Sealed bids will be received the Public Works Administration Office, 14467 Lake Poway Road, Poway, CA 92064, until 2:00 p.m., January 25, 2022, at which time they will be publicly opened by a City representative and read. Bids shall be submitted in plain, sealed envelopes and marked on the outside with the bid title: TRUCKING AND OPERA TOR SERVICES No. 22-011"
All bidders shall acknowledge receipt and acceptance of this Addendum No. 1 by signing in the space provided and submitting the signed Addendum with the bid.
Failure to do so will render your bid non-responsive.
11/16/2021
Amelia Dominguez, Management Analyst Date
Receipt acknowledged by:
Authorized Signature/Company Name
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March 1, 2022, Item #6
ATTACHMENT #2
FEE SCHEDULE
Price(s) shall include overhead:
--~···-··---·-•---· -·
Service Type: One Operator, One Vehicle
..
Mon-Fri Total $112.00 per hour
7:00 arn -6:00 pm Total (In Words):
One Hundred Twelve oer hour
Total $112.00 .9-er hour
After Hours & Saturday Total (In Words):
One Hundred Twelve per hour
--···--------··--·-·-·••·--··---------·
Total $ 112.00 per hour
Sunday & Holidays Total (In Words):
One Hundred Twelve per hour
-~~-------------··--
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