ON-CALL
AGREEMENT WITH TRANSPORTATION STUDIES INC. TO PROVIDE
TRAFFIC COUNTING SERVICES
THIS AGREEMENT is made and entered into on this 6 th day of May , 2025 by and between Transportation Studies, Inc. (TSI), a California corporation, (“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. On J
anuary 21, 2025, City issued Request for Proposal (“RFP”) No. 25- 012, by which it sought qualified consultants to provide on- call traffic counting services for the City’s Public Works Agency.
B. C
onsultant submitted a responsive proposal that was among t hose selected by the City.
Consultant represents that it is able and willing to provide the services described in the scope of work that was included in RFP 25-012.
C. In und
ertaking 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. SCO
PE OF SERVICES
On a
n on-call basis, and at the City’s sole discretion, 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 the scope of work that was included in RFP No. 25- 012, which is attached hereto as Exhibit A and incorporated by reference.
2. COM
PENSATION
a. Ci
ty neither warrants nor guarantees any minimum or maximum compensation to Consultant under this Agreement. Consultant shall be paid only for actua l services performed under this Agreement at the rates and charges identified in Exhibit B.
Consultant is one of two (2) consultants selected to provide services on an on-call basis under RFP 25- 012. The total compensation for these services provided by all such consultants selected under RFP 25 -012 shall not exceed the shared aggregate amount of Five Hundred Thousand Dollars ($500,000) during the term of the Agreement, including any extension periods.
b. Pa
yment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. City and EXHIBIT 1
Consultant agree that all payments due and owing under this Agreement shall be made through Automated Clearing House (ACH) transfers. Consultant agrees to execute the City’s standard ACH Vendor Payment Authorization and provide required documentation. Upon verification of the data provided, the City will be authorized to deposit payments directly into Consultant’s account(s) with financial i nstitutions.
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 May 6, 2025 for a three (3) year term and end on May 5th, 2028, unless terminated earlier in accordance with Section 15, below. The term of this Agreement may be extended for up to two (2), one -year periods upon a writing executed by the City Manager and the City Attorney.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant 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 rela tionship, 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.
5. OWNERSHIP OF MATERIALS
This Agreement creates a non -exclusive and perpetual license for City to copy, use, 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 sub contractor prepares under this Agreement.
Consultant represents an d 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.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maint ain and shall require any subcontractors to obtain and maintain insurance as described below for the entire Term of this Agreement against claims for injuries to persons or damage to property which may arise from or in connection with services, products and materials supplied to City. Total cost of such insurance shall be borne by Consultant.
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence and $2,000,000 aggregate. Required policy limits can be met with primary and umbrella/excess insurance policies.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), with limits no less than $1,000,000 combined single limits. In the event Consultant does not maintain commercial automobile liability insurance, City will accept evidence of personal automobile insurance.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Coverage is not required if Consultant has no employees and signs request to waive such insurance.
4. Professional Liability: with limits no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
If the Consultant maintains broader coverage and/or higher limits than the minimum requirements for each line of coverage shown above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. City, its City Council, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds, under Consultant’s CGL, Professional Liability, and Automobile Liability policies, with respect to any liability arising out of work or operations performed by or on behalf of the Instructor including materials, parts, equipment, and personnel furnished in connection with such work or operations.
2. Consultant’s Insurance company(ies) agrees to waive all rights of subrogation against City, its City Cou ncil, its officers, officials, employees, agents, and volunteers for losses paid under the terms of any policy which arise from work performed by Consultant under this Agreement.
3. For any claims related to this contract, Consultant’s insurance coverage shal l be primary and any insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall not contribute with it.
4. A severability of interest provision must apply for all the additional insureds, ensuring that Consultant’s insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the insurer’s limits of liability.
5. Insurance policies required herein shall provide that coverage shall not be canceled, suspended, voided, reduced in coverage or in limits, non- renewed by the carrier, or materially changed except after thirty (30) days prior written notice has been given to City. Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renewal due to non-payment of premium.
6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana, Attention: Azadeh Azad. 20 Civic Center Plaza, M -43, Santa Ana, CA 92701.
The name and location of project must be included in the Description of Operations section of each certificate.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the State of California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to City.
Verification of Coverage
Consultant shall furnish City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Consultant’s obligation to provide them.
City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
7. 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, whic h 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 terms 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 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.
8. 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 City pursuant to this Agreement.
9. 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 other 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.
10. 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 it s 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 Consultant 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; or (e) is independently developed by the Consultant without reference to information disclosed by the City.
11. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have i nterests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement.
12. 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 veteran 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.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between 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.
14. 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 prior 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 of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City.
15. 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 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 C ity 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.
16. 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 remedy 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.
17. 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.
18. 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 shall 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.
19. 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:
City Clerk
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:
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.
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.
Transportation Studies, Inc.
Attn: Patti A. Tolton, President
2640 Walnut Avenue, Suite L
Tustin, CA 92780
Fax: (714) 508-3602
Nabil Saba
Digitally signed by
Nabil Saba
Date: 2025.04.21
16:34:33 -07'00'
EXHIBIT A
CITY OF SANTA ANA
Consultant shall perform services as set forth below.
DESCRIPTION AND SCOPE OF WORK
The City of Santa Ana is issuing this Request for Proposals (RFP) for Traffic Counting Services.
Neighborhood requests for City assistance in solving intrusive traffic problems often require a series of traffic counts to be taken at specific locations over several days to confirm and then to monitor the intrusive traffic. In such a situati on, it is important that the same firm be used throughout the study for consistency and reliability.
In addition to typical counts for traffic safety warrants, the annual contract for traffic counting services may also include the bi-annual citywide Average Daily Traffic study, Citywide Turning Movement study, and traffic counts for our signal priority list studies. Pedestrian counts, speed surveys, vehicle classifications (using machines) and/or other services may also be requested as part of this contract. For services not specifically listed, a price for such services will be agreed to, if requested.
From the proposals received, one or up to three firm(s) may be selected. The City will enter into an agreement with the firm(s). As traffic counting needs are identified, they will be requested on as needed basis. The City reserves the right to assign the work in any manner which will best serve the City's interests.
A. IMPLEMENTATION
I. City staff shall have the right to modify, reduce, or delete the services as needed by City.
II. The term of the contract shall be for an initial 3 years which shall commence on the date that City Council approves the award or the date that all required bonds and insurance have been approved by the City Attorney, whichever occurs last.
III. City shall retain an option to renew on the same terms and conditions as set forth herein for up to two (2) additional one-year terms, for a total maximum of 5 years.
B. SCOPE OF WORK
The Consultant shall provide necessary services for collecting traffic count data for various studies on an as -needed basis. This may include, but not be limited to 24- hour ADT counts, 24-hour entering traffic volume counts, intersection turning movement counts for 2, 4, or 6-hour, etc. periods, hourly pedestrian counts, speed surveys, and machine vehicle classifier data.
For the assigned tasks, the Consultant shall compile the traffic data and provide the following to the City:
• For each ADT volume count, a two-directional 15-minute count sheet with hourly totals per direction of travel, similar in format to the sample in EXHIBIT IV. Note: Consultant must be able to provide up to 25 simultaneous count locations for neighborhood traffic counts.
EXHIBIT I
SCOPE OF SERVICES
CITY OF SANTA ANA
• For each entering traffic volume count, a 15 -minute count sheet with hourly totals per direction of travel, containing all legs of the intersection (sample in Attachment 5).
• For each manual turning movement count, a 15-minute count sheet for each count period, with the actual peak hour(s) identified (sample in Attachment 5). Note: Consultant must be able to provide up to 15 simultaneous count locations for neighborhood traffic counts or for various intersection locations throughout the City.
• For each intersection pedestrian count, a 15-minute count sheet for each count period, plus a count sheet of manual (vehicle) turning movements, if requested. Note: Counts categorized by age group may be requested for certain locations.
• For the Citywide Average Daily Traffic (ADT) study:
a. Count sheets as described above. Note: Consultant should be prepared to conduct counts at 280 locations within a 2-month period.
b. "Traffic Census" booklet (summary of ADTs), 25 bound copies and the associated electronic files.
c. Traffic Flow Maps, sample in Exhibit I, will be included in the "Traffic Census" booklet.
City will furnish the street map on computer diskette, compatible with AutoCAD or Microstation. Depending on the cost provided by the Consultant, the City may choose to complete this map in-house.
d. If, due to the cost limit of the contract, more than one Consultant is needed to complete the study, the City will furnish the count data collected by the "secondary" Consultant to the "prime" Consultant who is compiling the "Traffic Census" booklet.
The "prime" Consultant will include this data in the count summary and on the flow maps of the "Traffic Census" booklet.
e. Before the Consultant(s) begin the study, a schedule will be developed in cooperation with the Consultant(s) regarding when the counts will be conducted, and when the count data and "Traffic Census" booklet will be delivered.
• Computer file(s) for all counts conducted by the consultant, including manual or machine counts, in Excel spreadsheet format every three (3) months. Computerized files shall also be provided upon city’ staff request.
EXHIBIT B