South Coast Lighting and Design CONTRACT SERVICES AGREEMENT
By and Between
CITY OF RANCHO PALOS VERDES
and
SOUTH COAST LIGHTING AND DESIGN
01203.0006/467212.7
CONTRACT SERVICES AGREEMENT
BETWEEN THE CITY OF RANCHO PALOS VERDES AND
SOUTH COAST LIGHTING AND DESIGN
THIS AGR1JMENT F RLONTRACT SERVICES (herein "Agreement") is made and
entered into this 4 ay of 2018, by and between the City of Rancho Palos Verdes, a
California munici al corporation ("City") and South Coast Lighting and Design, a California
corporation ("Consultant"). City and Consultant may be referred to, individually or collectively,
as "Party"or"Parties."
RECITALS
A. Pursuant to Sections 2.44.060 and 2.42.050(A)of the City of Rancho Palos Verdes
Municipal Code, City has authority to enter into and execute this Agreement.
OPERATIVE PROVISIONS
NOW,THEREFORE, in consideration of the mutual promises and covenants made by the
Parties and contained herein and other consideration, the value and adequacy of which are hereby
acknowledged,the parties agree as follows:
ARTICLE 1. WORK OF CONSULTANT
1.1 Scope of Work.
In compliance with all terms and conditions of this Agreement,the Consultant shall
provide those services specified in the "Scope of Work" attached hereto as Exhibit "A" and
incorporated herein by this reference, which may be referred to herein as the"services"or"work"
hereunder. As a material inducement to the City entering into this Agreement, Consultant
represents and warrants that it has the qualifications, experience, and facilities necessary to
properly perform the work required under this Agreement in a thorough, competent, and
professional manner,and is experienced in performing the work and services contemplated herein.
Consultant shall at all times faithfully, competently and to the best of its ability, experience and
talent, perform all services described herein. Consultant covenants that it shall follow the highest
professional standards in performing the work and services required hereunder and that all
materials will be both of good quality as well as fit for the purpose intended. For purposes of this
Agreement, the phrase "highest professional standards" shall mean those standards of practice
recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Bid Documents.
The Scope of Work shall include the"General Provisions"and"Special Provisions"
in the bid documents for the project entitled PVIC Outdoor Lighting, Project No. 8411,
including any documents or exhibits referenced therein (collectively, "bid documents"), all of
which are incorporated herein by this reference. In the event of any inconsistency between the
terms of the bid documents and this Agreement, the terms of this Agreement shall govern.
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1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services
hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the
City and any Federal, State or local governmental entity having jurisdiction in effect at the time
service is rendered.
1.4 Compliance with California Labor Law.
(a) Public Work. The Parties acknowledge that the work to be
performed under this Agreement is a "public work" as defined in Labor Code Section 1720 and
that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1
(commencing with Section 1720)of the California Labor Code relating to public works contracts
and the rules and regulations established by the Department of Industrial Relations ("DIR")
implementing such statutes. The work performed under this Agreement is subject to compliance
monitoring and enforcement by the DIR. Consultant shall post job site notices, as prescribed by
regulation.
(b) Prevailing Wages. Consultant shall pay prevailing wages to the
extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of
the prevailing rate of per diem wages are on file at City Hall and will be made available to any
interested party on request. By initiating any work under this Agreement, Consultant
acknowledges receipt of a copy of the Department of Industrial Relations (DIR)determination of
the prevailing rate of per diem wages, and Consultant shall post a copy of the same at each job site
where work is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages. Consultant shall
comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning
the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing
wages. The Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each
calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined
by the DIR for the work or craft in which the worker is employed for any public work done
pursuant to this Agreement by Consultant or by any subcontractor.
(d) Payroll Records. Consultant shall comply with and be bound by the
provisions of Labor Code Section 1776,which requires Consultant and each subcontractor to:keep
accurate payroll records and verify such records in writing under penalty of perjury, as specified
in Section 1776; certify and make such payroll records available for inspection as provided by
Section 1776; and inform the City of the location of the records.
(e) Apprentices. Consultant shall comply with and be bound by the
provisions of Labor Code Sections 1777.5, 1777.6,and 1777.7 and California Code of Regulations
Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects.
Consultant shall be responsible for compliance with these aforementioned Sections for all
apprenticeable occupations. Prior to commencing work under this Agreement, Consultant shall
provide City with a copy of the information submitted to any applicable apprenticeship program.
Within sixty(60) days after concluding work pursuant to this Agreement, Consultant and each of
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its subcontractors shall submit to the City a verified statement of the journeyman and apprentice
hours performed under this Agreement.
(f) Eight-Hour Work Day. Consultant acknowledges that eight (8)
hours labor constitutes a legal day's work. Consultant shall comply with and be bound by Labor
Code Section 1810.
(g) Penalties for Excess Hours. Consultant shall comply with and be
bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work
excess hours. The Consultant shall, as a penalty to the City, forfeit twenty-five dollars ($25) for
each worker employed in the performance of this Agreement by the Consultant or by any
subcontractor for each calendar day during which such worker is required or permitted to work
more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week
in violation of the provisions of Division 2,Part 7,Chapter 1,Article 3 of the Labor Code.Pursuant
to Labor Code section 1815, work performed by employees of Consultant in excess of eight (8)
hours per day,and forty(40)hours during any one week shall be permitted upon public work upon
compensation for all hours worked in excess of 8 hours per day at not less than one and one-half
(11/2)times the basic rate of pay.
(h) Workers' Compensation. California Labor Code Sections 1860 and
3700 provide that every employer will be required to secure the payment of compensation to its
employees if it has employees. In accordance with the provisions of California Labor Code Section
1861, Consultant certifies as follows:
"I am aware of the provisions of Section 3700 of the Labor Code which require
every employer to be insured against liability for workers' compensation or to
undertake self-insurance in accordance with the provisions of that code, and I will
comply with such provisions before commencing the performance of the work of
this contract."
Consultant's Authorized Initials 0"
(i) Consultant's Respons'i:ifn' for Subcontractors. For every
subcontractor who will perform work under this Agreement, Consultant shall be responsible for
such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section
1720)of the California Labor Code,and shall make such compliance a requirement in any contract
with any subcontractor for work under this Agreement. Consultant shall be required to take all
actions necessary to enforce such contractual provisions and ensure subcontractor's compliance,
including without limitation, conducting a review of the certified payroll records of the
subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to
pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take
corrective action to halt or rectify any such failure by any subcontractor.
1.5 Licenses,Permits,Fees and Assessments.
Consultant shall obtain at its sole cost and expense such licenses, permits,
registrations,and approvals as may be required by law for the performance of the services required
by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and
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taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are
necessary for the Consultant's performance of the services required by this Agreement, and shall
indemnify, defend and hold harmless City, its officers, employees or agents of City, against any
such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City
hereunder.
1.6 Familiarity with Work.
(a) By executing this Agreement, Consultant warrants that Consultant
(i)has thoroughly investigated and considered the scope of work to be performed,(ii)has carefully
considered how the services should be performed, and (iii) fully understands the facilities,
difficulties and restrictions attending performance of the services under this Agreement. If the
services involve work upon any site, Consultant warrants that Consultant has or will investigate
the site and is or will be fully acquainted with the conditions there existing,prior to commencement
of services hereunder.
(b) Consultant shall promptly, and before the following conditions are
disturbed, notify the City, in writing, of any: (i) material Consultant believes may be hazardous
waste as defined in Section 25117 of the Health& Safety Code required to be removed to a Class
I, II, or III disposal site in accordance with existing law; (ii) subsurface, unknown or latent
conditions, materially different from those indicated; or (iii) unknown physical conditions at the
site of any unusual nature, different from those ordinarily encountered and generally recognized
as inherent in work of the character provided for in this Agreement, and will materially affect the
performance of the services hereunder.
(c) City shall promptly investigate the conditions, and if it finds that
the conditions do materially differ,or do involve hazardous waste,and cause a decrease or increase
in Consultant's cost of,or the time required for, performance of any part of the work, shall issue a
change order per Section 1.10 of this Agreement.
(d) In the event that a dispute arises between City and Consultant
whether the conditions materially differ, or involve hazardous waste, or cause a decrease or
increase in Consultant's cost of, or time required for, performance of any part of the work,
Consultant shall not be excused from any scheduled completion date set,but shall proceed with all
work to be performed under the Agreement. Consultant shall retain any and all rights provided
either by contract or by law, which pertain to the resolution of disputes and protests between the
contracting parties.
(e) City will compensate Consultant to the extent required by
Government Code Section 4215 by issuing a change order per Section 1.10 of this Agreement.
1.7 Protection and Care of Work and Materials.
The Consultant shall adopt reasonable methods, including providing and
maintaining storage facilities, during the life of the Agreement to furnish continuous protection to
the work,and the equipment,materials,papers,documents,plans,studies and/or other components
thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or
property, until acceptance of the work by City, except such losses or damages as caused by City's
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own negligence. Stored materials shall be reasonably accessible for inspection. Consultant shall
not,without City's consent,assign, sell,mortgage, hypothecate, or remove equipment or materials
which have been installed or delivered and which may be necessary for the completion of the work.
1.8 Warranty.
Consultant warrants all work under the Agreement (which for purposes of this
Section shall be deemed to include unauthorized work which has not been removed and any
non-conforming materials incorporated into the work) to be of good quality and free from any
defective or faulty material and workmanship. Consultant agrees that for a period of one year(or
the period of time specified elsewhere in the Agreement or in any guarantee or warranty provided
by any manufacturer or supplier of equipment or materials incorporated into the work, whichever
is later)after the date of final acceptance,Consultant shall within ten(10)days after being notified
in writing by the City of any defect in the work or non-conformance of the work to the Agreement,
commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty
at its sole cost and expense. Consultant shall act as soon as requested by the City in response to an
emergency. In addition, Consultant shall, at its sole cost and expense, repair, remove and replace
any portions of the work (or work of other contractors) damaged by its defective work or which
becomes damaged in the course of repairing or replacing defective work. For any work so
corrected, Consultant's obligation hereunder to correct defective work shall be reinstated for an
additional one year period, commencing with the date of acceptance of such corrected work.
Consultant shall perform such tests as the City may require to verify that any corrective actions,
including,without limitation,redesign,repairs,and replacements comply with the requirements of
the Agreement. All costs associated with such corrective actions and testing, including the
removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall
be the sole responsibility of the Consultant. All warranties and guarantees of subcontractors,
suppliers and manufacturers with respect to any portion of the work, whether express or implied,
are deemed to be obtained by Consultant for the benefit of the City, regardless of whether or not
such warranties and guarantees have been transferred or assigned to the City by separate agreement
and Consultant agrees to enforce such warranties and guarantees, if necessary, on behalf of the
City. In the event that Consultant fails to perform its obligations under this Section, or under any
other warranty or guaranty under this Agreement, to the reasonable satisfaction of the City, the
City shall have the right to correct and replace any defective or non-conforming work and any
work damaged by such work or the replacement or correction thereof at Consultant's sole expense.
Consultant shall be obligated to fully reimburse the City for any expenses incurred hereunder upon
demand.
1.9 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective
obligations under this Agreement. Both parties agree to act in good faith to execute all instruments,
prepare all documents and take all actions as may be reasonably necessary to carry out the purposes
of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of
the other.
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1.10 Additional Work and Change Orders.
(a) City shall have the right at any time during the performance of the
services, without invalidating this Agreement, to order extra work beyond that specified in the
Scope of Work or make changes by altering,adding to or deducting from said work.No such extra
work may be undertaken unless a written change order is first given by the Contract Officer to the
Consultant, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to
perform this Agreement, which said adjustments are subject to the written approval of the
Consultant ("Change Order"). All Change Orders must be signed by the Consultant and Contract
Officer prior to commencing the extra work thereunder.
(b) Any increase in compensation of up to ten percent (10%) of the
Contract Sum or $25,000, whichever is less; or any increase in the time to perform of up to one
hundred eighty(180)days; and does not materially affect the Work and which are not detrimental
to the Work or to the interest of the City, may be approved by the Contract Officer. Any greater
increases,taken either separately or cumulatively, must be approved by the City Council.
(c) Any adjustment in the Contract Sum for a Change Order must be in
accordance with the rates set forth in the Schedule of Compensation in Exhibit"C". If the rates in
the Schedule of Compensation do not cover the type of work in the Change Order,the cost of such
work shall not exceed an amount agreed upon in writing and signed by Consultant and Contract
Officer. If the cost of the Change Order cannot be agreed upon, the City will pay for actual work
of the Change Order completed,to the satisfaction of the City, as follows:
(i) Labor: the cost of labor shall be the actual cost for wages of
workers and subcontractors performing the work for the Change Order at the time such work is
done. The use of labor classifications that would increase the cost of such work shall not be
permitted.
(ii) Materials and Equipment: the cost of materials and
equipment shall be at cost to Consultant or lowest current price which such materials and
equipment are reasonably available at the time the work is done, whichever is lower.
(iii) If the cost of the extra work cannot be agreed upon, the
Consultant must provide a daily report that includes invoices for labor, materials and equipment
costs for the work under the Change Order.The daily report must include:list of names of workers,
classifications, and hours worked; description and list of quantities of materials used; type of
equipment, size, identification number, and hours of operation, including loading and
transportation, if applicable;description of other City authorized services and expenditures in such
detail as the City may require. Failure to submit a daily report by the close of the next working day
may, at the City's sole and absolute discretion, waive the Consultant's rights for that day.
(d) It is expressly understood by Consultant that the provisions of this
Section 1.10 shall not apply to services specifically set forth in the Scope of Work. Consultant
hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope
of Work may be more costly or time consuming than Consultant anticipates and that Consultant
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shall not be entitled to additional compensation therefor. City may in its sole and absolute
discretion have similar work done by other contractors.
(e) No claim for an increase in the Contract Sum or time for
performance shall be valid unless the procedures established in this Section are followed.
1.11 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part
hereof are set forth in the"Special Requirements"attached hereto as Exhibit"B"and incorporated
herein by this reference. In the event of a conflict between the provisions of Exhibit"B" and any
other provisions of this Agreement, the provisions of Exhibit"B" shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement,City agrees to pay Consultant
the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and
incorporated herein by this reference. The total compensation, including reimbursement for actual
expenses,shall not exceed)Ninety Six Thousand Five Hundred($96,500)(the"Contract Sum"),
unless additional compensation is approved pursuant to Section 1.10.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon
completion;(ii)payment in accordance with specified tasks or the percentage of completion of the
services less the contract retention; (iii) payment for time and materials based upon the
Consultant's rates as specified in the Schedule of Compensation, provided that(a) time estimates
are provided for the performance of sub tasks, (b) contract retention is maintained and (c) the
Contract Sum is not exceeded; or(iv) such other methods as may be specified in the Schedule of
Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures
for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer
in advance,or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,
and only if specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If
Consultant is required to attend additional meetings to facilitate such coordination, Consultant
shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work
performed and expenses incurred during the preceding month in a form approved by City's
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Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is
certifying compliance with all provisions of the Agreement. The invoice shall detail charges for
all necessary and actual expenses by the following categories: labor (by sub-category), travel,
materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be
detailed by such categories.Consultant shall not invoice City for any duplicate services performed
by more than one person.
City shall, as soon as practicable, independently review each invoice submitted by
the Consultant to determine whether the work performed and expenses incurred are in compliance
with the provisions of this Agreement. Except as to any charges for work performed or expenses
incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will cause
Consultant to be paid within thirty (30) days of receipt of Consultant's correct and undisputed
invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures,
the City cannot guarantee that payment will occur within this time period. In the event that City
does not cause Consultant to be paid within thirty (30) days of receipt of an undisputed and
properly submitted invoice, Consultant shall be entitled to the payment of interest to the extent
allowed under Public Contract Code Section 20104.50. In the event any charges or expenses are
disputed by City,the original invoice shall be returned by City to Consultant, not later than seven
(7) days after receipt by the City, for correction and resubmission. Returned invoices shall be
accompanied by a document setting forth in writing the reasons why the payment request was
rejected. Review and payment by the City of any invoice provided by the Consultant shall not
constitute a waiver of any rights or remedies provided herein or any applicable law.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed
to waive any defects in work performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt
of a written notice to proceed and shall perform all services within the time period(s) established
in the "Schedule of Performance" attached hereto as Exhibit"D" and incorporated herein by this
reference. When requested by the Consultant, extensions to the time period(s) specified in the
Schedule of Performance may be approved in writing by the Contract Officer but not exceeding
one hundred eighty(180) days cumulatively.
3.3 Force Majeure.
The time period(s)specified in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of the Consultant,
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including,but not restricted to,acts of God or of the public enemy,unusually severe weather, fires,
earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars,
litigation, and/or acts of any governmental agency, including the City, if the Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing of
the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and
extend the time for performing the services for the period of the enforced delay when and if in the
judgment of the Contract Officer such delay is justified.The Contract Officer's determination shall
be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled
to recover damages against the City for any delay in the performance of this Agreement, however
caused, Consultant's sole remedy being extension of the Agreement pursuant to this Section.
3.4 Inspection and Final Acceptance.
City may inspect and accept or reject any of Consultant's work under this
Agreement, either during performance or when completed. City shall reject or finally accept
Consultant's work within forty-five(45)days after submitted to City. City shall accept work by a
timely written acceptance, otherwise work shall be deemed to have been rejected. City's
acceptance shall be conclusive as to such work except with respect to latent defects,fraud and such
gross mistakes as to amount to fraud.Acceptance of any work by City shall not constitute a waiver
of any of the provisions of this Agreement including,but not limited to,Articles 1 and 5,pertaining
to warranty and indemnification and insurance, respectively.
3.5 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this
Agreement shall continue in full force and effect until completion of the services but not exceeding
one (1) year from the date hereof, except as otherwise provided in the Schedule of Performance
(Exhibit"D").
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant ("Principals") are hereby designated as
being the principals and representatives of Consultant authorized to act in its behalf with respect
to the work specified herein and make all decisions in connection therewith:
Gary Keller President
(Name) (Title)
Matt Keller Vice-President
(Name) (Title)
It is expressly understood that the experience,knowledge,capability and reputation
of the foregoing Principals were a substantial inducement for City to enter into this Agreement.
Therefore, the Principals shall be responsible during the term of this Agreement for directing all
activities of Consultant and devoting sufficient time to personally supervise the services hereunder.
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All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive
direction and control of the Principals. For purposes of this Agreement, the Principals may not be
replaced nor may their responsibilities be substantially reduced by Consultant without the express
written approval of City. Additionally, Consultant shall make every reasonable effort to maintain
the stability and continuity of Consultant's staff and subcontractors, if any, assigned to perform
the services required under this Agreement. Consultant shall notify City of any changes in
Consultant's staff and subcontractors, if any, assigned to perform the services required under this
Agreement, prior to and during any such performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any
obligation, debt or liability of any kind on behalf of or against City, whether by contract or
otherwise, unless such authority is expressly conferred under this Agreement or is otherwise
expressly conferred in writing by City. Consultant shall not at any time or in any manner represent
that Consultant or any of Consultant's officers, employees, or agents are in any manner officials,
officers, employees or agents of City. Neither Consultant, nor any of Consultant's officers,
employees or agents, shall obtain any rights to retirement, health care or any other benefits which
may otherwise accrue to City's employees.Consultant expressly waives any claim Consultant may
have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be Elias Sassoon, Director of Public Works. It shall be
the Consultant's responsibility to assure that the Contract Officer is kept informed of the progress
of the performance of the services and the Consultant shall refer any decisions which must be made
by City to the Contract Officer. Unless otherwise specified herein, any approval of City required
hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have
authority, if specified in writing by the City Manager,to sign all documents on behalf of the City
required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner,
mode or means by which Consultant, its agents or employees,perform the services required herein,
except as otherwise set forth herein. City shall have no voice in the selection, discharge,
supervision or control of Consultant's employees, servants, representatives or agents, or in fixing
their number, compensation or hours of service. Consultant shall perform all services required
herein as an independent contractor of City and shall remain at all times as to City a wholly
independent contractor with only such obligations as are consistent with that role. Consultant shall
not at any time or in any manner represent that it or any of its agents or employees are agents or
employees of City. City shall not in any way or for any purpose become or be deemed to be a
partner of Consultant in its business or otherwise or a joint venturer or a member of any joint
enterprise with Consultant.
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•
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals
and employees were a substantial inducement for the City to enter into this Agreement. Therefore,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of the City. All subcontractors shall
obtain,at its or Consultant's expense,such licenses,permits,registrations and approvals(including
from the City) as may be required by law for the performance of any services or work under this
Agreement. In addition, neither this Agreement nor any interest herein may be transferred,
assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for
the benefit of creditors or otherwise,without the prior written approval of City.Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in concert of more
than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all
transfers into account on a cumulative basis. In the event of any such unapproved transfer,
including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall
release the Consultant or any surety of Consultant of any liability hereunder without the express
consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
Without limiting Consultant's indemnification of City, and prior to commencement of any
services under this Agreement, Consultant shall obtain, provide and maintain at its own expense
during the term of this Agreement, policies of insurance of the type and amounts described below
and in a form satisfactory to City.
(a) General liability insurance. Consultant shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in
an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily
injury,personal injury,and property damage.The policy must include contractual liability that has
not been amended.Any endorsement restricting standard ISO"insured contract" language will not
be accepted.
(b) Automobile liability insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and
property damage for all activities of the Consultant arising out of or in connection with Services
to be performed under this Agreement, including coverage for any owned, hired, non-owned or
rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance. Consultant shall
maintain professional liability insurance that covers the Services to be performed in connection
with this Agreement, in the minimum amount of$1,000,000 per claim and in the aggregate. Any
policy inception date, continuity date, or retroactive date must be before the effective date of this
Agreement and Consultant agrees to maintain continuous coverage through a period no less than
three(3)years after completion of the services required by this Agreement.
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(d) Workers' compensation insurance. Consultant shall maintain Workers'
Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at
least $1,000,000).
(e) Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor.All coverages for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required
in the Special Requirements in Exhibit"B".
5.2 General Insurance Requirements.
(a) Proof of insurance.Consultant shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver of subrogation
endorsement for workers' compensation. Insurance certificates and endorsements must be
approved by City's Risk Manager prior to commencement of performance. Current certification
of insurance shall be kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required insurance policies, at any
time.
(b) Duration of coverage. Consultant shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the Services hereunder by
Consultant, its agents, representatives, employees or subconsultants.
(c) Primary/noncontributing. Coverage provided by Consultant shall be
primary and any insurance or self-insurance procured or maintained by City shall not be required
to contribute with it. The limits of insurance required herein may be satisfied by a combination of
primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be
endorsed to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of City before the City's own insurance or self-insurance shall
be called upon to protect it as a named insured.
(d) City's rights of enforcement. In the event any policy of insurance required
under this Agreement does not comply with these specifications or is canceled and not replaced,
City has the right but not the duty to obtain the insurance it deems necessary and any premium
paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient
to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(e) Acceptable insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance or
that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned
policyholders' Rating of A- (or higher) and Financial Size Category Class VI (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the
City's Risk Manager.
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(f) Waiver of subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or
appointed officers, agents, officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance clauses from each of
its subconsultants.
(g) Enforcement of contract provisions (non-estoppel). Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to inform
Consultant of non-compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or
limits contained in this section are not intended as a limitation on coverage, limits or other
requirements,or a waiver of any coverage normally provided by any insurance. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a given issue and
is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or
a waiver of any type. If the Consultant maintains higher limits than the minimums shown above,
the City requires and shall be entitled to coverage for the higher limits maintained by the
Consultant. Any available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
(i) Notice of cancellation. Consultant agrees to oblige its insurance agent or
broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for
nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each
required coverage.
(j) Additional insured status. General liability policies shall provide or be
endorsed to provide that City and its officers,officials,employees,and agents,and volunteers shall
be additional insureds under such policies. This provision shall also apply to any excess/umbrella
liability policies.
(k) Prohibition of undisclosed coverage limitations. None of the coverages
required herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved of in writing.
(1) Separation of insureds. A severability of interests provision must apply for
all additional insureds ensuring that Consultant's insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the insurer's limits of
liability. The policy(ies) shall not contain any cross-liability exclusions.
(m) Pass through clause. Consultant agrees to ensure that its subconsultants,
subcontractors, and any other party involved with the project who is brought onto or involved in
the project by Consultant, provide the same minimum insurance coverage and endorsements
required of Consultant. Consultant agrees to monitor and review all such coverage and assumes
all responsibility for ensuring that such coverage is provided in conformity with the requirements
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of this section. Consultant agrees that upon request, all agreements with consultants,
subcontractors, and others engaged in the project will be submitted to City for review.
(n) Agency's right to revise specifications. The City reserves the right at any
time during the term of the contract to change the amounts and types of insurance required by
giving the Consultant ninety (90) days advance written notice of such change. If such change
results in substantial additional cost to the Consultant, the City and Consultant may renegotiate
Consultant's compensation.
(o) Self-insured retentions.Any self-insured retentions must be declared to and
approved by City. City reserves the right to require that self-insured retentions be eliminated,
lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these
specifications unless approved by City.
(p) Timely notice of claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant's performance
under this Agreement,and that involve or may involve coverage under any of the required liability
policies.
(q) Additional insurance.Consultant shall also procure and maintain,at its own
cost and expense, any additional kinds of insurance, which in its own judgment may be necessary
for its proper protection and prosecution of the work.
5.3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend and
hold harmless the City, its officers,employees and agents("Indemnified Parties")against,and will
hold and save them and each of them harmless from, any and all actions, either judicial,
administrative, arbitration or regulatory claims, damages to persons or property, losses, costs,
penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims
or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in
connection with the negligent performance of the work, operations or activities provided herein of
Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity
for which Consultant is legally liable("indemnitors"),or arising from Consultant's or indemnitors'
reckless or willful misconduct,or arising from Consultant's or indemnitors' negligent performance
of or failure to perform any term, provision, covenant or condition of this Agreement, and in
connection therewith:
(a) Consultant will defend any action or actions filed in connection with
any of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the
City, its officers, agents or employees for any such claims or liabilities arising out of or in
connection with the negligent performance of or failure to perform such work, operations or
activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers,
agents, and employees harmless therefrom;
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(c) In the event the City, its officers, agents or employees is made a
party to any action or proceeding filed or prosecuted against Consultant for such damages or other
claims arising out of or in connection with the negligent performance of or failure to perform the
work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its
officers, agents or employees, any and all costs and expenses incurred by the City, its officers,
agents or employees in such action or proceeding, including but not limited to, legal costs and
attorneys' fees.
In addition, Consultant agrees to indemnify, defend and hold harmless the
Indemnified Parties from, any and all claims and liabilities for any infringement of patent rights,
copyrights or trademark on any person or persons in consequence of the use by the Indemnified
Parties of articles to be supplied by Consultant under this Agreement,and of which the Consultant
is not the patentee or assignee or has not the lawful right to sell the same.
Consultant shall incorporate similar indemnity agreements with its subcontractors
and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore,
and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This
indemnification includes claims or liabilities arising from any negligent or wrongful act, error or
omission, or reckless or willful misconduct of Consultant in the performance of professional
services and work hereunder. The provisions of this Section do not apply to claims or liabilities
occurring as a result of City's sole negligence or willful acts or omissions, but,to the fullest extent
permitted by law, shall apply to claims and liabilities resulting in part from City's negligence,
except that design professionals' indemnity hereunder shall be limited to claims and liabilities
arising out of the negligence, recklessness or willful misconduct of the design professional. The
indemnity obligation shall be binding on successors and assigns of Consultant and shall survive
termination of this Agreement.
5.4 Notification of Third-Party Claims.
City shall timely notify Consultant of the receipt of any third-party claim relating
to the work under this Agreement. City shall be entitled to recover from Consultant its reasonable
costs incurred in providing such notification.
5.5 Performance and Labor Bonds.
Concurrently with execution of this Agreement Consultant shall deliver to the City,
the following:
(a) A performance bond in the amount of the Contract Sum of this
Agreement, in the form provided by the City Clerk,which secures the faithful performance of this
Agreement.
(b) A labor and materials bond in the amount of the Contract Sum of
this Agreement, in the form provided by the City Clerk, which secures the payment of all persons
furnishing labor and/or materials in connection with the work under this Agreement.
Both the performance and labors bonds required under this Section 5.5 shall contain
the original notarized signature of an authorized officer of the surety and affixed thereto shall be a
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certified and current copy of his power of attorney. The bond shall be unconditional and remain in
force during the entire term of the Agreement and shall be null and void only if the Consultant
promptly and faithfully performs all terms and conditions of this Agreement and pays all labor and
materials for work and services under this Agreement.
5.6 Sufficiency of Insurer or Surety.
Insurance and bonds required by this Agreement shall be satisfactory only if issued
by companies qualified to do business in California, rated "A"or better in the most recent edition
of Best's Rating Guide,The Key Rating Guide or in the Federal Register,and only if they are of a
financial category Class VII or better, unless such requirements are waived by the Risk Manager
of the City ("Risk Manager") due to unique circumstances. If this Agreement continues for more
than 3 years duration, or in the event the Risk Manager determines that the work or services to be
performed under this Agreement creates an increased or decreased risk of loss to the City, the
Consultant agrees that the minimum limits of the insurance policies and the performance bond
required by Section 5.5 may be changed accordingly upon receipt of written notice from the Risk
Manager.
5.7 Substitution of Securities.
Pursuant to Public Contract Code Section 22300, substitution of eligible equivalent
securities for any funds withheld to ensure performance under this Agreement may be permitted
at the request and sole expense of the Consultant. Alternatively, the Consultant may, pursuant to
an escrow agreement in a form prescribed by Public Contract Code Section 22300, request
payment of retentions funds earned directly to the escrow agent at the sole expense of the
Consultant.
5.8 Release of Securities.
City shall release the Performance and Labor Bonds when the following have occurred:
(a) Consultant has made a written request for release and provided
evidence of satisfaction of all other requirements under Article 5 of this Agreement;
(b) the Work has been accepted; and
(c) after passage of the time within which lien claims are required to be
made pursuant to applicable laws; if lien claims have been timely filed, City shall hold the Labor
Bond until such claims have been resolved, Consultant has provided statutory bond, or otherwise
as required by applicable law.
ARTICLE 6. RECORDS,REPORTS,AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers, books of
accounts, invoices, vouchers, canceled checks, reports, studies, certified and accurate copies of
payroll records in compliance with all applicable laws, or other documents relating to the
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disbursements charged to City and services performed hereunder (the "books and records"), as
shall be necessary to perform the services required by this Agreement and enable the Contract
Officer to evaluate the performance of such services. Any and all such documents shall be
maintained in accordance with generally accepted accounting principles and shall be complete and
detailed.The Contract Officer shall have full and free access to such books and records at all times
during normal business hours of City, including the right to inspect, copy, audit and make records
and transcripts from such records. Such records shall be maintained for a period of 3 years
following completion of the services hereunder, and the City shall have access to such records in
the event any audit is required. In the event of dissolution of Consultant's business, custody of the
books and records may be given to City, and access shall be provided by Consultant's successor
in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in
providing access to the books and records if a public records request is made and disclosure is
required by law including but not limited to the California Public Records Act.
6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such
reports concerning the performance of the services required by this Agreement as the Contract
Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the
cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant
agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that
may or will materially increase or decrease the cost of the work or services contemplated herein
or, if Consultant is providing design services, the cost of the project being designed, Consultant
shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the
estimated increased or decreased cost related thereto and, if Consultant is providing design
services,the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data,
notes, computer files, reports, records, documents and other materials (the "documents and
materials") prepared by Consultant, its employees, subcontractors and agents in the performance
of this Agreement shall be the property of City and shall be delivered to City upon request of the
Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim
for further employment or additional compensation as a result of the exercise by City of its full
rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use,
reuse or assignment of such completed documents for other projects and/or use of uncompleted
documents without specific written authorization by the Consultant will be at the City's sole risk
and without liability to Consultant, and Consultant's guarantee and warranties shall not extend to
such use, reuse or assignment. Consultant may retain copies of such documents for its own use.
Consultant shall have an unrestricted right to use the concepts embodied therein. All
subcontractors shall provide for assignment to City of any documents or materials prepared by
them,and in the event Consultant fails to secure such assignment, Consultant shall indemnify City
for all damages resulting therefrom. Moreover, Consultant with respect to any documents and
materials that may qualify as"works made for hire"as defined in 17 U.S.C. § 101, such documents
and materials are hereby deemed "works made for hire" for the City.
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6.4 Confidentiality and Release of Information.
(a) information gained or work product produced by Consultant in
performance of this Agreement shall be considered confidential, unless such information is in the
public domain or already known to Consultant. Consultant shall not release or disclose any such
information or work product to persons or entities other than City without prior written
authorization from the Contract Officer.
(b) Consultant, its officers, employees, agents or subcontractors, shall
not, without prior written authorization from the Contract Officer or unless requested by the City
Attorney,voluntarily provide documents,declarations, letters of support,testimony at depositions,
response to interrogatories or other information concerning the work performed under this
Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided
Consultant gives City notice of such court order or subpoena.
(c) If Consultant, or any officer, employee, agent or subcontractor of
Consultant, provides any information or work product in violation of this Agreement, then City
shall have the right to reimbursement and indemnity from Consultant for any damages, costs and
fees, including attorneys' fees, caused by or incurred as a result of Consultant's conduct.
(d) Consultant shall promptly notify City should Consultant, its officers,
employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admissions or other discovery
request,court order or subpoena from any party regarding this Agreement and the work performed
there under. City retains the right, but has no obligation, to represent Consultant or be present at
any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and
to provide City with the opportunity to review any response to discovery requests provided by
Consultant. However, this right to review any such response does not imply or mean the right by
City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted,construed and governed both as to validity and
to performance of the parties in accordance with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Los Angeles, State of California, or any other
appropriate court in such county, and Consultant covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District
Court, venue shall lie exclusively in the Central District of California, in the County of Los
Angeles, State of California.
7.2 Disputes.
(a) Default; Cure. In the event that Consultant is in default under the
terms of this Agreement, the City shall not have any obligation or duty to continue compensating
Consultant for any work performed after the date of default. Instead, the City may give notice to
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Consultant of the default and the reasons for the default. The notice shall include the timeframe in
which Consultant may cure the default. This timeframe is presumptively thirty(30)days, but may
be extended, though not reduced, if circumstances warrant. During the period of time that
Consultant is in default, the City shall hold all invoices and shall proceed with payment on the
invoices only when the default is cured. In the alternative,the City may, in its sole discretion,elect
to pay some or all of the outstanding invoices during the period of default. If Consultant does not
cure the default,the City may take necessary steps to terminate this Agreement under this Article.
Any failure on the part of the City to give notice of the Consultant's default shall not be deemed
to result in a waiver of the City's legal rights or any rights arising out of any provision of this
Agreement.
(b) Dispute Resolution. This contract is subject to the provisions of
Article 1.5 (commencing at Section 20104)of Division 2, Part 3 of the California Public Contract
Code regarding the resolution of public works claims of less than $375,000. Article 1.5 mandates
certain procedures for the filing of claims and supporting documentation by the Consultant, for the
response to such claims by the City, for a mandatory meet and confer conference upon the request
of the Consultant, for mandatory non-binding mediation in the event litigation is commenced,and
for mandatory judicial arbitration upon the failure to resolve the dispute through mediation. This
Agreement hereby incorporates the provisions of Article 1.5 as though fully set forth herein.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant
(whether or not arising out of this Agreement) (i) any amounts the payment of which may be in
dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or
damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by
reason of Consultant's acts or omissions in performing or failing to perform Consultant's
obligation under this Agreement. In the event that any claim is made by a third party, the amount
or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear
to be the basis for a claim of lien, City may withhold from any payment due, without liability for
interest because of such withholding, an amount sufficient to cover such claim. The failure of City
to exercise such right to deduct or to withhold shall not, however, affect the obligations of the
Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any
party of any breach of the provisions of this Agreement shall not constitute a waiver of any other
provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of
the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by
a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
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7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in
this Agreement, the rights and remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in
law or in equity, to cure, correct or remedy any default, to recover damages for any default, to
compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to
obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any
contrary provision herein,Consultant shall file a claim pursuant to Government Code Sections 905
et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Liquidated Damages.
Since the determination of actual damages for any delay in performance of this
Agreement would be extremely difficult or impractical to determine in the event of a breach of
this Agreement, the Consultant and its sureties shall be liable for and shall pay to the City the sum
of ($ )as liquidated damages for each working day of delay in the
performance of any service required hereunder, as specified in the Schedule of Performance
(Exhibit"D"). The City may withhold from any monies payable on account of services performed
by the Consultant any accrued liquidated damages. Pursuant to Government Code Section 4215,
Consultant shall not be assessed liquidated damages for delay in completion of the project when
such delay was caused by the failure of the public agency or owner of the utility to provide for
removal or relocation of utility facilities.
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically
provided in the following Section for termination for cause.The City reserves the right to terminate
this Contract at any time,with or without cause,upon thirty(30)days'written notice to Consultant,
except that where termination is due to the fault of the Consultant, the period of notice may be
such shorter time as may be determined by the Contract Officer. In addition, the Consultant
reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60)
days' written notice to City, except that where termination is due to the fault of the City,the period
of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice
of termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Except where the Consultant has initiated
termination, the Consultant shall be entitled to compensation for all services rendered prior to the
effective date of the notice of termination and for any services authorized by the Contract Officer
thereafter in accordance with the Schedule of Compensation or such as may be approved by the
Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated
termination, the Consultant shall be entitled to compensation only for the reasonable value of the
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work product actually produced hereunder. In the event of termination without cause pursuant to
this Section,the terminating party need not provide the non-terminating party with the opportunity
to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under
this Agreement, City may, after compliance with the provisions of Section 7.2,take over the work
and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable
to the extent that the total cost for completion of the services required hereunder exceeds the
compensation herein stipulated(provided that the City shall use reasonable efforts to mitigate such
damages), and City may withhold any payments to the Consultant for the purpose of set-off or
partial payment of the amounts owed the City as previously stated.
7.10 Attorneys' Fees.
If either party to this Agreement is required to initiate or defend or made a party to
any action or proceeding in any way connected with this Agreement, the prevailing party in such
action or proceeding, in addition to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's
fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery and all other
necessary costs the court allows which are incurred in such litigation.All such fees shall be deemed
to have accrued on commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment.
7.11 Unfair Business Practices Claims.
In entering into this Agreement, Consultant offers and agrees to assign to the City
all rights,title,and interest in and to all causes of action it may have under Section 4 of the Clayton
Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700)
of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods,
services or materials related to this Agreement. This assignment shall be made and become
effective at the time the City renders final payment to the Consultant without further
acknowledgment of the Parties.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or
any successor in interest, in the event of any default or breach by the City or for any amount which
may become due to the Consultant or to its successor, or for breach of any obligation of the terms
of this Agreement.
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8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or
shall acquire any interest, directly or indirectly, which would conflict in any manner with the
interests of City or which would in any way hinder Consultant's performance of services under
this Agreement.Consultant further covenants that in the performance of this Agreement,no person
having any such interest shall be employed by it as an officer, employee, agent or subcontractor
without the express written consent of the Contract Officer.Consultant agrees to at all times avoid
conflicts of interest or the appearance of any conflicts of interest with the interests of City in the
performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or
indirect, in this Agreement nor shall any such officer or employee participate in any decision
relating to the Agreement which effects his financial interest or the financial interest of any
corporation,partnership or association in which he is,directly or indirectly, interested, in violation
of any State statute or regulation. The Consultant warrants that it has not paid or given and will
not pay or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all
persons claiming under or through them, there shall be no discrimination against or segregation
of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual
orientation, marital status, national origin, ancestry, or other protected class in the performance of
this Agreement.Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed, religion,
sex, gender, sexual orientation, marital status, national origin, ancestry, or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the
Federal Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in connection
therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ
such unauthorized aliens for the performance of work and/or services covered by this Agreement,
and should any liability or sanctions be imposed against City for such use of unauthorized aliens,
Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions
imposed, together with any and all costs, including attorneys' fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand, request, document, consent, approval, or communication
either party desires or is required to give to the other party or any other person shall be in writing
and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City
Manager and to the attention of the Contract Officer (with her/his name and City title), City of
Rancho Palos Verdes, 30940 Hawthorne Boulevard, Ranchos Palos Verdes, California 90275 and
in the case of the Consultant, to the person at the address designated on the execution page of this
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Agreement. Either party may change its address by notifying the other party of the change of
address in writing. Notice shall be deemed communicated at the time personally delivered or in
seventy-two (72) hours from the time of mailing if mailed as provided in this Section. All
correspondence relating to this Agreement shall be serialized consecutively.
9.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of
the language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed
to be an original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and
exclusive expression of the understanding of the parties. It is understood that there are no oral
agreements between the parties hereto affecting this Agreement and this Agreement supersedes
and cancels any and all previous negotiations, arrangements, agreements and understandings, if
any, between the parties, and none shall be used to interpret this Agreement.No amendment to or
modification of this Agreement shall be valid unless made in writing and approved by the
Consultant and by the City Council. The parties agree that this requirement for written
modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or
sections contained in this Agreement shall be declared invalid or unenforceable by a valid
judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall
not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder unless the invalid provision is so material that its invalidity deprives either
party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty& Representation of Non-Collusion.
No official,officer,or employee of City has any financial interest,direct or indirect,
in this Agreement, nor shall any official, officer, or employee of City participate in any decision
relating to this Agreement which may affect his/her financial interest or the financial interest of
any corporation, partnership, or association in which(s)he is directly or indirectly interested, or in
violation of any corporation, partnership, or association in which (s)he is directly or indirectly
interested, or in violation of any State or municipal statute or regulation. The determination of
"financial interest" shall be consistent with State law and shall not include interests found to be
"remote" or "noninterests" pursuant to Government Code Sections 1091 or 1091.5. Consultant
warrants and represents that it has not paid or given, and will not pay or give, to any third party
-23-
01203.0006/467212.7
including, but not limited to, any City official, officer, or employee, any money, consideration, or
other thing of value as a result or consequence of obtaining or being awarded any agreement.
Consultant further warrants and represents that(s)he/it has not engaged in any act(s), omission(s),
or other conduct or collusion that would result in the payment of any money, consideration, or
other thing of value to any third party including, but not limited to, any City official, officer, or
employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is
aware of and understands that any such act(s), omission(s) or other conduct resulting in such
payment of money, consideration, or other thing of value will render this Agreement void and of
no force or effect.
Consultant's Authorized Initials !
4
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that
(i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver
this Agreement on behalf of said party, (iii)by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound. This Agreement shall
be binding upon the heirs, executors, administrators, successors and assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
-24-
01203.0006/467212.7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first-above written.
CITY:
CITY OF RANCHO PALOS VERDES, a
municipal corporation
Mayor
ATTEST:
i
irim.
1
mom
APPROVED AS TO FORM:
ALESHIRE & WYNDER,LLP
7/0'
City Attorney
CONSULTANT:
SOUT OAST L P G AND DESIGN
By: —
ame ary Keller
Title. 'resident
By: 97/24,404-,..
Name: Matt Keller
Title: Vice President
Address:_1101 Via Callejon, Suite 200
San Clemente, CA 92673
Two corporate officer signatures required when Consultant is a corporation,with one signature required from
each of the following groups:1)Chairman of the Board,President or any Vice President;and 2)Secretary,any
Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
-25-
01203.0006/467212 7
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
A.
On + ,,2018 before me, rr • A-personally appeared ,proved to me on the
basis of satisfactory evidence to be the p- son(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS m and o is eal.
Signatur •
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT DOCUMEN
El INDIVIDUAL Ar ,- (4A—n� T
O OFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
❑ PARTNER(S) ❑ LIMITED a(---S
❑ GENERAL NUMBER OF PAGES
❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PFQSOl oakOR s- TY(�ES)) ,�/ / SIGNER(S)OTHER THAN NAMED ABOVE
01203.0006/467212.7
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
OnAt,6 ►,2018 before me, I � personally appeared ,proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS m and and ffi a� 1.
Signatur •
OPTIONAL
Though the data below is not required by law,it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL CE PcftiS
. `� De.,—'(l''t—r--'bte
�-FFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
❑ PARTNER(S) ❑ LIMITED ��\
0 GENERAL NUMBER OF PAGES
O ATTORNEY-IN-FACT
❑ TRUSTEE(S)
El GUARDIAN/CONSERVATOR
O OTHER DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSONS)OR ENTI Y )4_77 SIGNER(S)OTHER THAN NAMED ABOVE
01203.0006/467212.7
•
EXHIBIT "A"
SCOPE OF WORK
Consultant shall perform the following services relating to the project entitled PVIC
Outdoor Lighting,Project No. 8411 (the"Services"):
A. Phase I: Analysis and Design.
Consultant shall prepare a rough site survey plan (a non-construction document) in
preparation for installing contractor's construction drawing. Provide site
photometric plan based on survey, specifications and cost estimate for materials
and installation at:
• For existing concrete bollards with lighting, provide solar option to replace
entire bollards.
• Perform a photometric analysis to verify if there is any deficiencies (i.e.
does City need to fill in the gaps between the current bollard lights are
adequate). Recommend locations for areas in need of new lighting.
• Recommend three (3) new solar main parking lot solar light pole locations
and two (2) additional solar safety light location in the overflow parking
lot.
• Recommend two (2) solar bollards by the entrance/driveway/steps to
PVIC's main building.
• Any recommended solar curb or sidewalk lighting options should not
exceed the height of the existing bollards due to adjacent resident concerns.
• Recommendations should account for general maintenance schedule of
lighting improvements. Analysis shall include, but not be limited to,
lighting levels of the existing bollard lighting along the trail and walkways,
existing lighting within the amphitheater and porch steps, and existing
lighting along the roof soffit of the PVIC building.
B. Phase II. Materials Purchase.
Consultant shall assist City in procuring materials and supplies (for City purchase)
based on the City-approved design.
C. Phase III. Installation Construction Services.
Consultant shall provide construction management services during installation.
• Check installation quality per industry best practices and be present on site
twice per week as construction is performed.
01203.0006/467212.7 B-1
• Provide key contact/liaison services with construction contractor.
II. All work is subject to review and acceptance by the City, and must be revised by the
Consultant without additional charge to the City until found satisfactory and accepted by
City.
III. Consultant shall provide safe and continuous passage for pedestrian and vehicular traffic
in accordance with the Work Area Traffic Control Handbook(WATCH), latest edition.
01203.0006/467212.7 B-2
•
EXHIBIT "B"
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
New text is indicated in bold italics, deleted text is indicated in stfikettireiagh.
I. Section 1.2,Bid Documents,is deleted in its entirety.
II. Section 5.5, Performance and Labor Bonds,is deleted in its entirety.
III. Section 7.7,Liquidated Damages,is deleted in its entirety.
01203.0006/467212.7 B-3
EXHIBIT "C"
SCHEDULE OF COMPENSATION
I. Consultant shall perform all work at the rates on the Bid Sheet submitted as part of
Consultant's Proposal, and listed below:
A. Phase I. Design and Estimation Work.
SERVICE RATE TIME SUB-BUDGET
Site Survey, Survey Visits And $75/hr 44 hours $3,300
CAD Plan Creation
Photometrics And Site Lighting $95/hr 18 hours $1,710
Analysis with AIG Site Plan
Supervising Project Manager, $125/hr 18 hours $2,250
Project Collation
TOTAL FOR DESIGN AND $7,260
ESTIMATION SERVICES
B. Phase II. LED and Solar Materials Purchase.
SERVICE COST/UNIT QTY* SUB-BUDGET
New Complete Lighted Solar $998 52 $51,896
Bollard Replacement
New Drive Area Solar $998 2 $1,996
Lighting, Bollards
New Main Parking Lot Solar $3,000 3 $9,000
Light Poles
Theater Step Light LED $200 16 $3,200
Porch Step Lights LED $200 16 $3,200
Building Soffit LED Lamp $250 12 $3,000
Flood Light LED $400 8 $3,200
01203.0006/467212.7 C-1
New Gravel Lot Solar Safety $3,000 2 $6,000
Light Poles
Total For Materials Direct $81,492
Purchase**
Sales Tax 9.5% $7,741.74
TOTAL COST $89,233.74
MATERIALS
*Material quantities may change and all changes+or-will be reflected in final materials invoice.
**Shipping for materials included in pricing
C. Phase III. Installation Construction Management Services.
Management Services and Cost included in Phase I and Phase II.
II. Within the budgeted amounts for each item on the proposal, and with the approval of the
Contract Officer, funds may be shifted from one item's subbudget to another so long as the
Contract Sum is not exceeded per Section 2.1, unless Additional Work is approved per
Section 1.10.
III. The City will compensate Consultant for the Services performed upon submission of a
valid monthly invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours
worked, and the hourly rate.
B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting
documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials, and
travel properly charged to the Services.
V. The total compensation for the Services shall not exceed $96,500 as provided in Section
2.1 of this Agreement.
01203.0006/467212.7 C-2
•
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Consultant shall perform all work timely in accordance with the following schedule:
Days to Perform Deadline Date
A. Design 15 working days 9/27/2018
B. Material Purchase 35 working days 10/24/2018
C. Installation/construction/conversion 20 working days 11/2/2018
oversight
II. Consultant shall deliver the following tangible work products to the City by the following
dates.
A. Conceptual site plan with photometric by 9/27/2018
B. Manufacturer's Order Delivery by 10/24/2018
C. Project Sign off(completed punch list) by 11/2/2018
III. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2.
01203.0006/467212.7 D-1
•
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
t: A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
-,K document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
4:h
State of California b
'` County of Orange } ss.
LA
,,M On AlAttlyr 2q- , 2018 before me, James Pak Notary Public, N.
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who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) M
is/are subscribed to the within instrument and acknowledged to me that he/she/they ,"
iM executed the same in his/her/their authorized ca acit les , and that byhis/her/their
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signatures(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
M I
. I certify under PENALTY OF PERJURY under the laws of the State of California that the r
foregoing paragraph is true and correct.
WITNESS my hand and official seal. It
„..r JAMES PAK It
i ._ ,;".,„ l',.. Notary Public-California z
Z i Orange County
' Commission t#21903
My Comm.Expires May 6"2 021
Signature
(seal)
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OPTIONAL INFORMATION
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4 Type or Title of Document Or
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Number of Pages in Documents
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M Capacity of Signer:
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