EXHIBIT 1
City of Santa Ana RFP 23-123
NOTICE INVITING PROPOSALS
NOTICE IS HEREBY GIVEN that proposals will be received from qualified firms for On -Call Geotechnical Engineering Services.
Responses to this Request for Proposals (RFP) must be submitted electronically to the PlanetBids system no later than August 28, 2023 at 2:00 p.m. Proposals received after this date/time will not be considered. It is the responsibility of the proposer to ensure that any proposals submitted have sufficient time to be received by the City of Santa Ana prior to this proposal due date and time.
Additionally, it is a requirement that hard copy proposals also be sent by courier service , mailed, or hand delivered in an enclosed sealed envelope and marked clearly with the following “SEALED PROPOSAL FOR
ON-CALL GEOTECHNICAL ENGINEERING SERVICES
RFP NO. 23-123
IN THE CITY OF SANTA ANA
DO NOT OPEN WITH REGULAR MAIL.”
City of Santa Ana
Attn.: Gilbert Castillo
Public Works Agency; M-36
20 Civic Center Plaza; Ross Annex
Santa Ana, CA 92701
For hard copy drop offs, visitors will be routed to deliver in the blue drop box on the 1st floor of Ross Annex across from the Public Works counter. Gentle note: staff will not timestamp or sign any hard copy deliveries as the electronic submittal by the deadline is suffice.
All notifications, requests for information, updates and addenda will be posted online on PlanetBids at https://www.planetbids.com/portal/portal.cfm?CompanyID=20137. Proposers shall be responsible for monitoring the site to obtain information regarding this solicitation. Failure to respond to required updates may result in a determination of a nonresponsive qualification.
City of Santa Ana RFP 23-123
TABLE OF CONTENTS
I. INTRODUCTION / PROJECT DESCRIPTION 4
II. INSTRUCTIONS TO PROPOSERS 6 A. CITY RESPONSIBILITIES
B. PROPOSER RESPONSIBILITIES
C. REQUEST FOR INFORMATION OR CLARIFICATION
D. ADDENDA
E. LICENSES & PERMITS
F. INSURANCE
G. INFORMATION PACKET
H. PRE-PROPOSAL MEETING
I. CITY RIGHT TO REJECT
J. BID PROTESTS
III. SUBMITTAL REQUIREMENTS 8
A. GENERAL
B. PROPOSAL CONTENTS
1. STATEMENT OF QUALIFICATIONS
2. SCOPE OF SERVICES AND SCHEDULE
3. FEE PROPOSAL
4. CERTIFICATIONS
IV. PROPOSAL REVIEW (CONSULTANT SELECTION) 10 A. EVALUATION AND RATING
B. SELECTION
V. CONTRACT AWARD 10
A. REQUEST FOR COUNCIL ACTION
B. EXECUTION OF AGREEMENT
VI. IMPLEMENTATION 10
A. KICK-OFF MEETING
B. NOTICE TO PROCEED
VII. P UBLIC RECORDS 11
VIII. APPENDIX
ATTACHMENT 1: SCOPE OF WORK
ATTACHMENT 2: AGREEMENT
ATTACHMENT 3: CERTIFICATION
City of Santa Ana RFP 23-123
I. INTRODUCTION / PROJECT DESCRIPTION
Nature of Work:
The City of Santa Ana is seeking geotechnical engineering services. A detailed Scope of Work is included in the Appendix of this RFP as Attachment I.
Number of Proposals and Signature:
Five (5) hard copies are required to accompany an electronic submittal of the complete proposal package on PlanetBids. One of the hard copies shall be marked as “ORIGINAL” and be signed by a company official with the power to bind the company , and submitted to the City of Santa Ana. Please be explicit in identifying the appropriate person with legal authority to bind the company.
The Statement of Qualifications (SOQ) shall be limited to a maximum of (10) pages, which may be double-sided (excluding front and back covers, section dividers and attachments such as resumes, forms). Font size shall be minimum 11 -point Arial. Proposal exhibits shall be maximum 11” x 17”.
Proposal Evaluation and Rating:
The criteria for evaluating the SOQ submitted will take the following items into consideration:
• Firm/Team Experience 25%
• Understanding of Need 35%
• Relevant Project Experience 25%
• Schedule 10%
• References 5%
The City has established a proposal review committee to evaluate proposers based on the response to this RFP, which includes adherence to outlined directions and format, and the City evaluation criteria set forth above. A final score will be calculated for each submitted proposal and used to rank the proposers.
City of Santa Ana RFP 23-123
Project Funding:
Funding sources for each project may vary and shall comply with the funding agency’s requirements. Special conditions may apply. Refer to Attachment 1 (Scope of Work) in the Appendix of this RFP.
Prevailing Wages:
In accordance with the California State Labor Code, prevailing wage rates apply. Copies of the prevailing rate of per diem wages are on file with the Public Works Agency and shall be made available to any interested party on request.
Term of Contract Agreement:
The City desires to enter into a contract with the top scoring firm for an initial three (3) year term with a City option for one (1) two (2) year extension period. This term is outlined in the Standard Consultant Agreement, as contained in the Appendix of this RFP as Attachment 2.
City of Santa Ana RFP 23-123
II. INSTRUCTIONS TO PROPOSERS
A. CITY RESPONSIBILITIES
The City will provide information in its possession relevant to preparation of required information in this RFP. The City will provide only the staff assistance and documentation specifically referred to herein.
B. PROPOSER RESPONSIBILITIES
Point of Contact: The selected proposer will assume responsibilities for all services in its proposal. The selected pro poser shall identify a sole point of contact with the greatest knowledge concerning the required service operations and contractual matters, including payment of all charges resulting from the Agreement. Contact information such as email and phone number must be included into the proposal.
Evidence of Financial Capacity : Proposer may be requested to submit its most recent audited financial statement, evidencing proposer’s financial capacity to fully perform the required services, including provision of equipment and personnel expenses over a ninety (90) day period. If said financial statement does not reflect full ninety (90) day operational capacity, proposer may include a letter of credit as evidence of suppl emental capacity.
C. REQUEST FOR INFORMATION OR CLARIFICATION
All questions or requested clarifications shall be made only in writing to the Q&A section located in PlanetBids no fewer than five (5) calendar days prior to the date and time set f or opening of proposals. No verbal requests or responses will be accepted. Significant interpretations or clarifications will be addressed via addenda to this RFP.
D. ADDENDA
Any changes in RFP from the date of release to date of submittal will result in an addendum or amendment. Notification of such addendum or amendment shall be posted on PlanetBids at https://www.planetbids.com/portal/portal.cfm?CompanyID=20137 as
set forth in the Notice Inviting Proposals. Addenda shall become part of the agreement documents.
E. LICENSES & PERMITS
The selected proposer shall be required to obtain a City of Santa Ana Business license within ten (10) business days of selection and must provide a copy to the City ’s project manager or designee prior to commencing any work in Santa Ana.
Additionally, Proposer will be responsible for obtaining any licenses/permits required by the Scope of Work.
City of Santa Ana RFP 23-123
F. INSURANCE
The Selected Proposer shall provide the required evidence of insurance coverage as set forth in the Scope of Work within ten (10) business days after receipt of notice that the contract has been awarded. Failure to provide the required insurance certificates shall be cause for the annulment of the award and the forfeiture of the proposal guaranty. The City will provid e the Selected Proposer with a “New Vendor Checklist” , which outlines insurance requirements.
G. PAYMENT INFORMATION PACKET
The selected proposer shall return a completed payment information packet within ten (10) business days after the successf ul proposer has received notice that the contract has been awarded.
H. PRE-PROPOSAL MEETING
Should a pre-proposal meeting be scheduled, the date, time , and location is identified on the cover page of this RFP . The meeting will include discussion of the project scope and a question- and-answer session. It is highly recommended that the Proposer’s key team members attend this meeting. Significant interpretations or clarifications will be addressed via addenda to this RFP, as described above in “Section D: Addenda.”
I. CITY RIGHT TO REJECT
The City reserves the right to reject any or all proposals submitted and no representation is made hereby that any contract will be awarded pursuant to this RFP or otherwise.
The City reserves the right to accept or reject the combined or separate components of this p roposal in part or in its entir ety or to waive any minor inconsistency, informality or technical defect in the proposal.
The City reserves the righ t to reject, replace, and approve any and all subcontractors. All subcontractor(s) shall be identified in response to this RFP. Subcontractors shall be the responsibility of the successful proposer and the City shall assume no liability of such subcontractors.
J. BID PROTESTS
Proposers with concerns or rebuttal of any staff determination of non- responsiveness or non- responsibility may submit, in writing within five (5) business days, to the Project Manager, any concerns regarding the RFP pro cess or staff determination. Such writing shall be consi dered by the City Manager or her designated representative, and may be acted upon within five (5) business days. If no action is taken within such time, there shall be no change to the staff determination. The exercise by the Proposer of its right to submit written concerns shall be a condition precedent to seeking judicial review of any award of a contract hereunder.
City of Santa Ana RFP 23-123
III. SUBMITTAL REQUIREMENTS
A. GENERAL
1. The number of Proposal Copies and signature is specified in:
RFP SECTION I - INTRODUCTION / PROJECT DESCRIPTION
2. Deadline:
Proposals are due to the City of Santa Ana at the date, time, and location specified in the Notice Inviting Proposals.
B. PROPOSAL CONTENTS
The proposal format and page limitation, if any, is specified in:
RFP SECTION I - INTRODUCTION / PROJECT DESCRIPTION
1. STATEMENT OF QUALIFICATIONS
a. Cover Letter: Proposals shall include a letter signed by a principal or authorized representative who can make legally binding commitments for the entity.
b. Contract Agreement Statement: Proposal shall include a statement outlining your concurrence or concerns with any and all provisions contained in the Agreement attached herein as Attachment 2 in the Appendix.
c. Firm and Team Experience: Proposal shall include a profile of the firm’s experience. Include resumes of project team/sub-consultants that will be providing services which outline their technical and design experience. At a minimum, this should include the project manager/principal agent, associates in charge when project manager/principal agent is unavailable, key personnel, firm size, and an organization chart identifying only those who will perform work for the proposed project and the percentage of each individual’s time devoted to this project. The project manager/principal agent shall be the primary contact person to represent your firm and will be the person to conduct the presentation, if invited for an interview.
d. Understanding of Need: Proposal shall include an outline, which demonstrates the firm’s understanding of the work. This outline should include anticipated approach, tasks necessary for successful completion, deliverables, and suggestions or special concerns that the City should be made aware of. Identify any assumptions and/or
City of Santa Ana RFP 23-123
exclusions used in preparation of the scope of work and associated fee estimate.
e. Relevant Project Experience: Proposal shall include a list of relevant projects, which your firm or personnel have completed within the last 5 years, including significant work with public agencies. Project information should include project description, project location, year completed, and client name and contact information. City of Santa Ana staff may conduct site visits at select projects.
f. Willingness to Comply with Agreement Terms: A sample master service agreement is attached. Proposals will be rated based on the exceptions taken to the proposed contract.
g. References: Proposals shall include a listing of relevant projects with references for three public entities with valid current emails for which Proposer has performed similar work within the past five (5) years.
2. SCOPE OF SERVICES AND SCHEDULE:
Proposal shall include Scope of Services and Schedule which details the work phases to be completed, the task to be accomplished, the deliverables to be provided, and the schedule / timeline to complete the project, based upon the requested Scope of Work detailed in Attachment 1 of this RFP.
3. FEE PROPOSAL:
The fee proposal shall be submitted separate and concurrently with the technical proposal, both submitted electronically in PlanetBids and as a hard copy in a separately sealed envelope, clearly labeled as “Fee Proposal.” This shall include the firm’s Standard Hourly Fee Schedule, a table outlining the tasks and team hourly effort for each of the major tasks, and a Project Fee Schedule as outlined in the Scope of Work. Cost, while not determinative, may be considered in the selection process. The selected firm will be expected to maintain the proposed billing rates throughout the first fiscal year of the contract, from November 19, 2023 through November 18, 2026.
4. CERTIFICATIONS:
The following forms shall be signed and included as part of the proposal submittal package:
• Attachment 3 -1: Non-Collusion Affidavit
• Attachment 3 -2: Non-Lobbying Certification
• Attachment 3 -3: Non-Discrimination Certification
City of Santa Ana RFP 23-123
IV. PROPOSAL REVIEW (CONSULTANT SELECTION)
A. EVALUATION AND RATING
The criteria for evaluating the proposals are specified in:
RFP SECTION I - INTRODUCTION / PROJECT DESCRIPTION.
B. SELECTION
The selection committee will be comprised of at least (3) City staff from multiple departments. The committee may interview the top ranking propose rs. The City will recommend award of contracts to the proposer s who will provide the best value to the City. The City reserves the right to begin negotiations and enter into a contract without interview or further discussions.
V. CONTRACT AWARD
A. REQUEST FOR COUNCIL ACTION
Following evaluation and rating by the proposal review committee and acceptance from Funding agency following financial audit, the Project Manager will recommend award contracts to the three top-ranking proposers that will provide the best value to the City.
B. EXECUTION OF AGREEMENT
The Scope of Services, Schedule, and Fees submitted in the proposal will be the basis of any negotiation of final terms, which will lead to a completed agreement ready for execution based on the standard Agreement attached herein as Attachment 2 in the Appendix.
VI. IMPLEMENTATION
A. KICK-OFF MEETING
A kick -off meeting will be held after award of contrac ts. Consultants and their team will meet with City of Santa Ana staff to conduct introductions, discuss scope of services, and implementation process es.
B. NOTICE TO PROCEED
Prior to issuance of a formal Notice to Proceed (NTP), Consultants shall provide all required bonds, insurance documents, and contents of the Information Packet for review and approval by the City.
For “On-Call” contracts, individual City Project Managers will request pr oject/task specific proposals from Consultants on a n as-needed basis. City staff will then evaluate proposals and written NTPs will be issued accordingly per each task order.
City of Santa Ana RFP 23-123
VII. PUBLIC RECORDS
All data, documents and other products used, developed, or produced during response preparation of this RFP wil l become property of the City. All responses to this RFP shall become property of the City. Proposer information identified as proprietary information be maintained confidential, to the extent allowed under the California Public Records Act.
Proposals will become public record after award of contrac t. Proposer information identified as proprietary information shall be mainta ined confidential, to the extent allowed under the California Public Records Act.
City of Santa Ana RFP 23-123
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Appendix
ATTACHMENT 1
SCOPE OF WORK
CITY OF SANTA ANA
REQUEST FOR PROPOSALS
FOR
ON-CALL GEOTECHNICAL ENGINEERING SERVICES
RFP NO. 23-123
Introduction / Background
The City of Santa Ana intends to retain Geotechnical Engineering Consultants on an as-needed or “on-call” basis. A Professional Services Agreement will be entered into with several of the qualified firms/consultant(s) to provide geotechnical engineering services for a variety of projects on an on-call basis. On an on-call, as-needed basis, the selected firm(s) may be asked to provide professional services on specific, project-by-project basis, based on an agreed-upon specific scope of services and fees.
In general, work consists of general geotechnical engineering services for Public Works Projects and or related to City facilities. The funding sources for each project may vary for each project/task order assignment shall comply with the funding agency’s requirements.
The consultant shall be able to assist the City through this contract to provide the necessary services. The consultant shall utilize in -house staff and/or sub- consultants to complete the assignments to meet the City standards. For specialized work for which the prime consultant shall require a sub-consultant, the prime consultant shall serve as an administrative liaison between the City and the sub-consultant.
Prime consultant mark-ups for sub-consultant work will not be allowed.
All proposals, plans, drawings, specifications, estimates, grant applications, and/or studies will be subject to the final approval and satisfaction of the City of Santa Ana.
Scope of Services
On as needed basis, the selected firm/s shall provide the City with th e following services as described herein.
The consulting firm/s are responsible for any damage to utilities during the locating efforts.
The consulting firm/s selected for these services shall demonstrate the ability and experience in the following types or work and not limited to:
• Soil Classification and Analysis
• Material Testing
• Ground Water- Dewatering and Seepage Control Analysis • Seismic Stability
• Soil Liquefaction
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• Slope Stability and Protection
• Construction Inspection
• Open and Braced Excavations (shallow)
• Grading and Site Clearing
• Pavement Design
• Foundation Design
• Retaining Structures- submerged and partially submerged • Fill Compaction
• Special Inspections
• Subsurface Geotechnical Investigation
• Infiltration Testing
The Consultant/s shall also provide services such as: field exploration, laboratory testing and instrumentation. If there are any exceptions to the core of requested services, proposers shall list said exceptions in their proposal (matrix form). For specialized work for which the prime consultant shall require a sub-consultant, the prime consultant shall serve as an administrative liaison between the City and the sub- consultant. The selected consultants must have the expertise, experience, and demonstrated resources available to perform the work described in this RFP.
General Requirements and Project Deliverables
The Consultant’s services for the project preparation, special studies/investigations shall include and in be in conformance with the latest editions of the following: The City of Santa Ana Municipal Code (SAMC), professional Standards established by the City, and or federal, state and local guidelines established in the project.
The Consultant shall have complete responsibility for the accuracy and completeness of all documents and plans prepared. The plans will be reviewed by the City of Santa Ana for conformity with the requirements of the Agreement. Reviews by the City of Santa Ana do NOT include detailed review or checking of design or the accuracy with which such designs are depicted in the documents and the plans. The documents and plans furnished under the Agreement shall be of a quality acceptable to the City of Santa Ana. The criteria for acceptance shall be a product of neat appearance, well organized, technically and grammatically correct, checked, and dated and having the maker and checker identified.
The Consultant shall have project management control procedures in effect during the entire time work is being performed under the Agreement. This task shall include the following:
• Project Management Plan- the consultant shall provide a detail management plan including information and coordination with other agencies to ensure compliance and completion of the tasks. This plan shall include all milestones and task breakdown for each of the tasks and subtasks included therein. The project management shall be submitted to the Project Manager for review and within 15 calendar days of the issued Notice to Proceed • Deliverables
• Quality Control/Quality Assurance (QA/QC) Plan
• Project Schedule/Invoicing
• Project Correspondence
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In case of conflict, ambiguities, discrepancies, errors, or omissions, the consultant shall submit the matter to the City for clarification.
However, work tasks may include studies or a variet y of engineering tasks. If requested by the City, the Consultant shall provide a Work Plan which includes a detailed schedule of the assigned project prior to the issuance of Notice to Proceed and/or Task Order. Specific Task Orders with Notices to Proceed (“NTPs”) will be provided for project(s) at the discretion of the City. Work required per Task Order shall comply with the Scope of Services and additional provisions in each Task Order and this agreement.
The following services/items shall include, but are not be limited to:
1. Research existing records of utility companies and agencies and coordinate with the involved parties.
2. City may opt to receive only PDF versions of the plans, reports, and studies for reviewing purposes. If so, the Consultant team will provided plans and/or specifications accordingly.
3. The Consultant shall monitor the project progress, maintain project files, and control the quality of the work performed by in- house staff and/or sub -consultants. Incomplete (not meeting targeted completion) or poor quality work will not be accepted. The Consultant shall revise the documents within a revised schedule set by the City, which may require overtime.
No additional compensation necessary for the consultant to complete this work to the satisfaction of the City shall be approved by the City for the required revisions. It is the responsibility of the Consultant to produce a professional-level quality of work product.
4. If included in the on-call project scope, attend meetings with the City staff as required.
5. If included in the on-call project scope, the Consultant shall coordinate permits and any other issues with the City, other Agencies, and all utility companies as required. At the direction of the City, the Consultant shall be the liaison with affected agencies.
6. If included in the on-call project scope, the Consultant shall be responsible for reviewing and approving addenda and clarifications.
All information regarding the plans and specifications and or documentation related to the project and approved by the City, will then become property of the City.
A more detailed scope of work will be provided when/if a specific project or Task Order proposal is requested of a consultant. All tasks orders shall include the staff title, hours, hourly ra te and totals as related to the project.
Project Schedule and Progress:
Progress review meetings shall be held at intervals deemed appropriate by the City. The Consultant shall furnish two copies of all completed work or partially completed update/status since the last progress review meeting. Progress reports shall be submitted monthly in electronic format indicating achievements and project schedule progress.
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City Responsibilities:
The City will provide information in its possession relevant to the preparation of the required information in the RFP. The City will provide only the staff assistance and the documentation specifically in referred to herein.
• Furnish scope of work and provide general direction as needed for the assigned project • All reporting and coordination within the City
• Advertise, award, and administer of construction contract • Electronic files (sample plans & specifications, City of Santa Ana’s CADD Standards) • Electronic files for title sheets and sheet borders
• Facilitate meeting space and coordination and City facilities Fee Proposal:
In addition to Section IV.B.3 (Submittal Requirements: Fee Proposal) fee schedule shall be structured as follows:
The fee proposal shall include the firm’s standard hourly fee schedule, and/or project fee schedule where applicable and as outlined in this this documents. A list of all positions and hourly rates required to perform the services described herein. A more detailed scope of work will be provided when/if a specific project or Task Order proposal is requested of a consultant.
Other Terms and Conditions:
1. The project will be implemented in compliance with the City of Santa Ana’s policies, as well as Prevailing Wages and State/Federal Requirements.
2. The City regards the inclusion of California based designs, engineering, and construction professionals, facilities, and services as part of the Team to be highly desirable, but not mandatory.
3. The City reserves the right to amend this Request for Proposal by addendum prior to the final dates of submission.
4. All reports, proposals, or other data or materials which are submitted shall become the sole property of the City of Santa Ana with the exception of the confidential Financial Capacity information and sealed fee proposals which will be returned to all propos ers after award of contract to the selected Team.
5. All products used or developed in the execution of any contract resulting from this request will remain in the public domain at the completion of this project.
6. The City has an affirmative action program. The purpose of the affirmative action program is to encourage certified minority business enterprises and women business enterprises. All submitting firms must have established affirmative action pr ograms approvable by the City.
During the RFP stage, all firms will need to complete a “Certification of Non -Discrimination by Contractors” for each firm on their team.
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Appendix
ATTACHMENT 2
STANDARD AGREEMENT
CONSULTANT AGREEMENT
CITY OF SANTA ANA
CITY OF SANTA ANA
REQUEST FOR PROPOSALS
FOR
ON-CALL GEOTECHNICAL ENGINEERING SERVICES
RFP NO. 23-123
THIS AGREEMENT is made and entered into on this day of , 2023 by and between ___________________________________________________________, (“Consultant”), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (“City”).
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of:
B. Consultant represents that Consultant is able and willing to provide such services to the City.
C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services - Exhibit A, attached hereto and incorporated by reference.
Geotechnical engineering services for a variety of projects on an “on-call” basis.
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2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Compensation - Exhibit B. The total amount to be expended under this Agreement shall not exceed $xxxxxx during the term of this Agreement, including any extension periods exercised under Section 3. b. Payment by City shall be made within 45 days (forty-five) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures.
Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first w ritten above for a number (#) year term with the option for the City to grant up to a number (#)-year renewals, exercisable by a writing by the City Manager and the City Attorney, unless terminated earlier in accordance with Section 16, below.
4. PREVAILING WAGES
Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects. If the services being performed are part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
5. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services.
Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes.
6. OWNERSHIP OF MATERIALS
This Agreement creates a non -exclusive and perpetual license for City to copy, use, City of Santa Ana RFP 23-123
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modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other doc uments or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”). Consultant shall require all subcontractors to agree in writing that City is granted a non- exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
7. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occur rence arising out of Consultant’s operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insureds provisions.
b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles.
c. Worker’s Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Cons ultant, if Consultant has any employees, is required to be insured against liability for worker’s compensation or to undertake self -insurance.
Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain a ny employer’s liability insurance with limits not less than $1,000,000 per accident.
d. If Consultant is or employs a licensed professional such as an architect or engineer:
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Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section:
i. Consultant shall maintain all insurance required above in full force and effec t for the entire period covered by this Agreement.
ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City.
iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City.
iv. Where the amounts or coverage provided by the certificates of insurance provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into the Agreement.
v. Consultant shall supply City with a fully executed additional insured endorsement.
f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City’s election, to forthwith terminate this Agreement. Suc h termination shall not affect Consultant’s right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City.
8. INDEMNIFICATION
Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the term s of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including City of Santa Ana RFP 23-123
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fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding.
Notwithstanding the foregoing, to the extent Consultant’s services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
9. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States’ letters patent, trademark, or copyright infringement , including costs, contained in the work product or documents provided by Consultant to the C ity pursuant to this Agreement.
10. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any othe r documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement.
11. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. “Confidential Information” shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non- use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consult ant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; City of Santa Ana RFP 23-123
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or (e) is independently developed by the Consultant without referen ce to information disclosed by the City.
12. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement.
13. NON-DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veter an status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations.
14. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement bet ween the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein.
15. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the p rior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void.
Nothing in this Agreement shall be construed to limit the City’s ability to have any o f the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City.
16. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such City of Santa Ana RFP 23-123
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notice of termination, subject to the following conditions:
a As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement.
17. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or re medy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
18. JURISDICTION – VENUE
This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.
19. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant s hall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement.
20. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney’s fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement.
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21. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
Nabil Saba
Executive Director, Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M-21)
P.O. Box 1988
Santa Ana, California 92702
Fax: 714-647-5635
To Consultant:
A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded.
First & Last Name
Title
Consultant Firm Name
Address
City, State, Zip
Fax:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written.
ATTEST: CITY OF SANTA ANA
Jennifer L. Hall Kristine Ridge
Clerk of the Council City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO CONSULTANT:
City Attorney
By:
John Funk
Chief Assistant City Attorney (title)
Tax ID#
RECOMMENDED FOR APPROVAL:
Nabil Saba, P.E.
Executive Director
Public Works Agency
(name)
(title)
City of Santa Ana RFP 23-123
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EXHIBIT A
SCOPE OF SERVICES
City of Santa Ana RFP 23-123
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EXHIBIT B
COMPENSATION
Fee Proposal including hourly rates if applicable
Appendix
ATTACHMENT 3-1: NON-COLLUSION AFFIDAVIT
CERTIFICATIONS
City of Santa Ana RFP 23-123
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NON-COLLUSION AFFIDAVIT
(Title 23 United States Code Section 112 and
Public Contract Code Section 7106)
To the CITY OF SANTA ANA DEPARTMENT OF PUBLIC WORKS
In ac cordance with T itle 23 United States Code Section 112 and Public Contract Code 7106 the BIDDER declares that the bid is not made in th e interest of, or on behalf of, an y undisclosed person, partnership, company, association, organization, or corporation; that the bid is ge nuine and not collusive or sham; that the BIDDER has not directly or indirectly induced or solicited any other BIDDER to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived or agreed with any BIDDER or anyone else to put in a sha m bid, or that anyone shall refrain from bidding; that the BI DDER has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the BIDDER or any BIDDER, or to fix any overhead, profit, or cost element of the bid price, or of that of any other BIDDER, or to secure any advantage against the public body awarding the co ntr act of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the BIDDER has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and w ill not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid.
Note:
The a bove Non-collusion Affidavit is par t of the Proposal. Si gning this Proposal on the signature portion thereof shall also constitute signature of this Non-collusion Affidavit. BIDDERS are cautioned that making a false certification may subject the certifier to criminal prosecution.
Signed
State of California
County of
Subscribed and sworn to (or affirmed) before me on this day of , 20 , by
before me.
, proved to me on the basis of s atisfactory evidence to be the person(s) who appe ared
Notary Public Signature Notary Public Seal
City of Santa Ana RFP 23-123
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Appendix
ATTACHMENT 3-2: NON-LOBBYING CERTIFICATION
CERTIFICATIONS
The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
1. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the ent er ing into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence any officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant loan, loan or cooperative agreement, the undersigned shall complete and submit a “Disclosure of Lobbying Activities”.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
Firm
Signed and Printed Name:
Title
Date
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Appendix
ATTACHMENT 3-3: NON-DISCRIMINATION CERTIFICATION
CERTIFICATIONS
The undersigned consultant or corporate officer, during the performance of this contract, certifies as follows:
1. The Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or tra nsfer; recruitment or re cruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
2. The Consultant shall, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.
3. The Consultant shall send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers’ representatives of the Consultant’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
4. The Consultant shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
5. The Consultant shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders.
6. In the event of the Consultant’s non-compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the Consultant may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Execution Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rul e, regulations, or order of the Secretary of Labor, or as otherwise provided by law.
7. The Consultant shall include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted City of Santa Ana RFP 23-123
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by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of Se ptember 24, 1965, so that such provisions will be binding upon each subcontr act or purchase order as the administe ring agency may dir ect as means of enforc ing such provisions, including sanctions for noncompliance; provided, however, that in the event the Consultant becomes involved in, or is thr eatened with, litigation with a su b-consultant or v endor as a r esult of su ch direction by the administering agency, the Consul tant may request that the United S tates enter into such litigation to protect the interests of the United States.
8. Pursuant to Cali fornia Labor Code S ection 1735, as added by Chapter 643 S tats. 1939, and a s amended,
No discrim ination shall be made in the e mployment of persons upon public works because of ra ce, religious creed, color, national origin, ancest ry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any consultant of public works violating this Section is subject to all the penalties imposed for a violation of the Chapter.
Signed:
Title:
Firm:
Date: