HomeMy WebLinkAbout2018-2481
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RESOLUTION NO. 2018-248
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING A CONSULTANT SERVICES
AGREEMENT WITH PARAGON PARTNERS, LTD FOR RIGHT-OF-WAY
ACQUISITION SERVICES FOR THE WIDENING OF 40TH STREET BETWEEN
JOHNSON STREET AND ELECTRIC AVENUE (SSO4-014)
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. Paragon Partners, LTD, located at 5660 Katella Avenue, Suite 100,
Cypress, CA 90630, is a competent, experienced real estate right-of-way consulting firm and
has provided the most advantageous and best proposal to provide Right -of -Way Acquisition
Services for the Widening of 40th Street between Johnson Street and Electric Avenue, CII'
Project No. SSO4-014. An Agreement in the not -to -exceed amount of $123,100.00, with said
firm to perform said right-of-way acquisition services, is attached hereto as Exhibit "A" and
incorporated herein. Pursuant to this determination, the Purchasing Manager is hereby
authorized and directed to issue a Purchase Order for said services to said firm, which
references this Resolution.
SECTION 2. The City Manager or designee is hereby authorized and directed to
execute said Agreement on behalf of the City.
SECTION 3. The authorization to execute the above -referenced Agreement is
rescinded, if it is not executed within sixty (60) days of the passage of this resolution.
►//
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RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING A CONSULTANT SERVICES
AGREEMENT WITH PARAGON PARTNERS, LTD FOR RIGHT-OF-WAY
ACQUISITION SERVICES FOR THE WIDENING OF 40TH STREET BETWEEN
JOHNSON STREET AND ELECTRIC AVENUE (SSO4-014)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the
5th day of September 2018, by the following vote, to wit:
Council Members:
AYES
MARQUEZ
_ C�
BARRIOS
VALDIVIA
_
SHORETT
NICKEL
RICHARD
MULVIHILL
NAYS ABSTAIN ABSENT
Georgeann nna, CMC, 6y Clerk
The foregoing Resolution is hereby approved this 5"' day of September 2018.
l
. �� /-,
J
_.(.�
R. Carey DavisA4ayor
City of San Bernardino
Approved as to form:
Gary D. Saenz, City Attorney
By: t
CITY OF SAN BERNARDINO
PUBLIC WORKS DEPARTMENT
To: Candice Alvarez, Deputy City Clerk
From: Mike Grubbs, Project Manager
290 North `D"Street
San Bernardino, CA 92401
909.384.5140
Subject: Transmittal of fully executed Original of Consultant Services Agreement for
Right -of -Way Acquisition Services Agreement for the Widening of 40th
Street between Johnson Street and Electric Avenue
Date: October 3, 2018
Attached is a fully executed original of the subject Amendment approved on September 5, 2018
by Resolution No. 2018-248.
If you have any questions regarding these documents please contact the undersigned at (909)
384-5179.
Michael W. Grubbs, P.E.
Project Manager
enc.
CONSULTANT SERVICES AGREEMENT
City of San Bernardino
and
Paragon Partners, LTD
CITY= CITY OF SAN BERNARDINO
290 North "D" Street
San Bernardino, California 92401
CONSULTANT= Paragon Partners
5660 Katella Avenue, Suite 100
Cypress, CA 90630
Phone No. 714-379-3376
SERVICES= Right -of -Way Acquisition Services for the Widening of Fortieth Street
between Johnson Street and Electric Avenue (SSO4-014)
AMOUNT= '-,'123,100.00
EXPIRATION DATE= Until -completion of the Scope of Services or December 31, 2019,
whichever is earliest.
MANAGING DEPARTMENT: Public Works
c(7y
ary
eeT: tiRN
TABLE OF CONTENTs
1.0 SCOPE OF AGREEMENT .............................................................................................................................1
1.1 SCOPE OF SERVICES.................................................................................................................................1
12 DUTY TO INFORM CITY OF CHANGES IN SCOPE OF SERVICES................................................................. 1
1.3 AGREEMENT NON-EXCLUSIVE..................................................................................................................1
1.4 AGREEMENT INTERPRETATION................................................................................................................ 2
1.5 ORDER OF PRECEDENCE.......................................................................................................................... 2
1.6 CITY MANAGER. ........................................................................................................................................ 2
1.7 NOTICES....................................................................................................................................................2
2.0 TERM. 2
2.1 EFFECTIVE DATE...................................................................................................................................... 2
2.2 AGREEMENT EXTENSION.......................................................................................................................... 3
3.0 CITY'S RIGHT TO SUSPEND FOR CONVENIENCE....................................................................................... 3
3.1 CITY'S RIGHT TO TERMINATE FOR CONVENIENCE................................................................................... 3
3.2 CITY'S RIGHT TO TERMINATE FOR DEFAULT............................................................................................ 3
3.3 TERMINATION FOR BANKRUPTCY OR ASSIGNMENT FOR THE BENEFIT OF CREDITORS .......................... 4
3.4 CONSULTANTS RIGHT TO PAYMENT FOLLOWING AGREEMENT TERMINATION ...................................... 4
3.5 REMEDIES CUMULATIVE.......................................................................................................................... 4
4.0 INVOICE DATE........................................................................................................................................... 4
4.1 MANNER OF PAYMENT.............................................................................................................................. 4
4.2 INVOICE DETAIL....................................................................................................................................... 4
4.3 AMOUNT OF COMPENSATION................................................................................................................... 5
4.4 ADDITIONAL SERVICES............................................................................................................................. 5
4.5 ADDITIONAL COSTS.................................................................................................................................. 5
4.6 EIGHTY PERCENT NOTIFICATION............................................................................................................. 5
4.7 ANNUAL APPROPRIATION OF FUNDS....................................................................................................... 5
4.8 PRICE ADJUSTMENTS............................................................................................................................... 6
5.0 RIGHT TO AUDIT....................................................................................................................................... 6
5.1 AUDIT........................................................................................................................................................6
5.2 COST AUDIT.............................................................................................................................................. 6
5.3 ACCOUNTING RECORDS............................................................................................................................ 6
5.4 SUBCONTRACTORS...................................................................................................................................6
5.5 CONSULTANT AND SUBCONTRACTOR PRINCIPALS FOR CONSULTANT SERVICES ................................... 7
5.6 RESPONSIBILITY FOR ERRORS.................................................................................................................. 8
5.7 DELAY.............................................................::........................................................................................8
5.8 RESTRICTIONS AND REGULATIONS REQUIRING AGREEMENT MODIFICATION ........................................ 8
5.9 INDUSTRY STANDARDS............................................................................................................................. 8
5.10 RECORDS RETENTION AND EXAMINATION ............................................................................................... 9
5.11 QUALITY ASSURANCE MEETINGS ............................................................................................................. 9
5.12 DUTY TO COOPERATE WITH AUDITOR...................................................................................................... 9
5.13 CRIMINAL BACKGROUND CERTIFICATION............................................................................................... 9
5.14 PHOTO IDENTIFICATION BADGE.............................................................................................................. 9
5.15 STANDARDS OF CONDUCT.......................................................................................................................10
5.16 SUPERVISION...........................................................................................................................................10
5.17 CITY PREMISES......................................................:.................................................................................10
5.18 REMOVAL OF EMPLOYEES.......................................................................................................................10
5.19 LICENSES AND PERMITS .....:....................................................................................................................10
6.0 RIGHTS IN DATA......................................................................................................................................10
6.1 INTELLECTUAL PROPERTY RIGHTS ASSIGNMENT..................................................................................10
6.2 CONSULTANT WORKS..............................................................................................................................11
6.3 SUBCONTRACTING...................................................................................................................................11
6.4 INTELLECTUAL PROPERTY WARRANTY AND INDEMNIFICATION............................................................11
6.5 SOFTWARE LICENSING............................................................................................................................12
6.6 PUBLICATION...........................................................................................................................................12
6.7 ROYALTIES, LICENSES, AND PATENTS.....................................................................................................12
7.0 INDEMNIFICATION..................................................................................................................................12
7.1 INSURANCE..............................................................................................................................................12
8.0 CITY POLICIES.........................................................................................................................................16
8.2 AMERICANS WITH DISABILITIES ACT (ADA) AND STATE ACCESS LAWS AND REGULATIONS..................16
8.3 NON-DLSCRDIINATION.............................................................................................................................16
8.4 BUSINESS REGISTRATION CERTInCATE.................................................................................................16
9.0 CONFLICT OF INTEREST LAWS................................................................................................................ 16
9.1 CONSULTANT'S RESPONSIBILITY FOR EMPLOYEES AND AGENTS..........................................................17
9.2 CONSULTANT'S FINANCIAL OR ORGANIZATIONAL INTERESTS ...............................................................17
9.3 CERTIFICATION OF NON-COLLUSION......................................................................................................17
9.4 HIRING CITY EMPLOYEES........................................................................................................................17
10.0 MEDIATION..............................................................................................................................................17
10.1 SELECTION OF MEDIATOR.......................................................................................................................17
10.2 EXPENSES ................................................................................................................................................17
10.3 CONDUCT OF MEDIATION SESSIONS.......................................................................................................17
10.4 MEDIATION RESULTS...............................................................................................................................18
11.0 MANDATORY ASSISTANCE.......................................................................................................................18
11.1 COMPENSATION FOR MANDATORY ASSISTANCE.....................................................................................18
11.2 ATTORNEYS' FEES RELATED TO MANDATORY ASSISTANCE....................................................................18
12.0 BEADINGS................................................................................................................................................18
12.1 NON-ASSIGNMENT................................................................................................................................... 18
12.2 INDEPENDENT CONTRACTORS................................................................................................................19
12.3 SUBCONTRACTORS..................................................................................................................................19
12.4 COVENANTS AND CONDITIONS................................................................................................................19
-12.5 COMPLIANCE WITH CONTROLLING LAW.................................................................................................19
12.6 GOVERNING LAW.....................................................................................................................................19
12.7 VENUE.....................................................................................................................................................19
12.8 SUCCESSORS ININTEREST......................................................................................................................19
12.9 NO WAIVER..............................................................................................................................................19
12.10 SEVERABILITY.........................................................................................................................................19
12.11
DRAFTING AMBIGUTTIES.........................................................................................................................20
12.12
AMENDMENTS.........................................................................................................................................20
12.13
CONFLICTS BETWEEN TERMS.................................................................................................................20
12.14
SURVIVAL OF OBLIGATIONS....................................................................................................................20
12.15
CONF]DmTIILITY OF SERVICES.............................................................................................................20
12.17
NO THIRD PARTY BENEFICIARIES...........................................................................................................20
12.18
ACTIONS OF CITY IN ITS GOVERNMENTAL CAPACITY.............................................................................21
12.19
COUNTERPARTS.......................................................................................................................................21
CONSULTANT SERVICES AGREEMENT
This Consultant Services Agreement is entered into by and between the City of _ San
Bernardino, a charter city and municipal corporation (City), and Paragon Partners, LTD
(Consultant).
RECITALS
WHEREAS, City wishes to retain a Consultant for Right -of -Way Acquisition
Services for the Widening of Fortieth Street between Johnson Street and Electric Avenue
(SSO4-014) in accordance with Consultant's Proposals dated May 31, 2018, attached to this
Agreement as Attachments "A" which is made a part of this Agreement by reference.
(Services); and
WHEREAS, Consultant has the expertise, experience, and personnel necessary to
provide the Services including, as applicable, that degree of specialized expertise
contemplated by Government Code section 37103; and
WHEREAS, City and Consultant (collectively, the Parties) wish to enter into an
agreement whereby City will retain Consultant to provide the Services.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
acknowledged, City and Consultant agree as follows:
ARTICLE I
SCOPE OF AGREEMENT AND AGREEMENT MANAGEMENT
1.0 Scope of Agreement. This scope of the entire agreement between the parties is
described in the Agreement Documents. The Agreement Documents are comprised of the
Request for Proposal or other solicitation document (Solicitation); the successful bid or
proposal; the letter awarding the Agreement to Consultant; the City's written acceptance of
exceptions or clarifications to the Solicitation, if any; and this Consultant Services
Agreement (Agreement) including any exhibits hereto.
1.1 Scope of Services. Consultant shall provide the Services as described in the Scope of
Services contained in said Attachment "A".
1.2 Duty to Inform City of Changes in Scope of Services. Consultant shall immediately
advise the City in writing of any anticipated change in the Scope of Services, stipulated
remuneration, or time schedule, and shall obtain the City's written consent to the change
prior to making any changes. In no event shall the City's consent be construed to relieve
Consultant from its duty to render all Services in accordance with applicable law and
industry standards.
1.3 Agreement Non -Exclusive. Consultant acknowledges that City may enter into
agreements with other consultants for services similar to the Services or may have its own
employees perform services similar to the Services.
pg. 1
Consultant Services Agreement
1.4 Agreement Interpretation. The Agreement Documents completely describe the
Services. Consultant will provide any services that may reasonably be inferred from the
Agreement Documents or from prevailing custom or trade usage as being required to
produce the intended result whether or not specifically called for or identified in the
Agreement Documents. Words or phrases which have a well-known technical or
construction industry or trade meaning and are used to describe Services will be
interpreted in accordance with that meaning unless a definition has been provided in the
Agreement Documents.
1.5 Order of Precedence. In resolving conflicts resulting from errors or discrepancies in
any of the Agreement Documents, the terms of this Agreement shall prevail over any
inconsistent provision in any other Agreement Document, including exhibits to this
Agreement.
1.6 City Manager. The City Manager, or designee named below in Section 1.7, is the
authorized representative of the City for purposes of this Agreement, and has the
responsibilities described in this Agreement, in the San Bernardino Charter, and in
Chapter 3.04 of the San Bernardino Municipal Code. The City Manager must sign all
Agreement amendments.
1.7 Notices. Unless otherwise specified, in all cases where written notice is required
under this Agreement, service shall be deemed sufficient if the notice is personally
delivered or deposited in the United States mail, with first class postage paid, attention to
the City Manager. Proper notice is effective on the date of personal delivery or five (5) days
after deposit in a United States postal mailbox unless provided otherwise in the Agreement.
Notices for each party shall be sent to:
FOR THE CITY=
Andrea M. Miller, City Manager
City of San Bernardino
290 North D St
San Bernardino, CA 92401
FOR THE CONSULTANT
Mark Mendoza
Paragon Partners, LTD
5660 Katella Avenue, Suite 100
Cypress, CA 90630
Phone: 714-379-3376
ARTICLE II
TERM OF AGREEMENT
2.0 Term. Unless otherwise terminated, this Agreement shall be effective until
completion of the Scope of Services or DECEMBER 31, 2019, whichever is earliest.
2.1 Effective Date. This Agreement shall be effective on the date it is executed by the
pg. 2
Consultant Services Agreement
last Party to sign the Agreement, and approved as to form by the City Attorney.
2.2 Agreement Extension. The City Manager may, in his sole discretion, unilaterally
extend the Agreement on a month-to-month basis following Agreement expiration.
Consultant shall not increase its pricing described in Exhibit A without prior express
written consent from the City Manager.
ARTICLE III
SUSPENSION AND TERMINATION
3.0 City's Right to Suspend for Convenience. City may suspend all or any portion of
Consultant's performance under this Agreement at its sole option and for its convenience
for a reasonable period of time not to exceed six (6) months. City must first give ten (10)
days' written notice to Consultant of such suspension. City will pay to Consultant a sum
equivalent to the reasonable value of the services satisfactorily provided up to the date of
suspension. City may rescind the suspension prior to or at six (6) months by providing
Consultant with written notice of the rescission, at which time Consultant would be
required to resume performance in compliance with the terms and conditions of this
Agreement. Consultant will be entitled to an extension of time to complete performance
under the Agreement equal to the length of the suspension unless otherwise agreed to in
writing by the Parties.
3.1 City's Right to Terminate for Convenience. City may, at its sole option and for its
convenience, terminate all or any portion of this Agreement by giving thirty (30) days'
written notice of such termination to Consultant. The termination of the Agreement shall
be effective upon receipt of the notice by Consultant. After termination of all or any portion
of the Agreement, Consultant shall= (1) immediately discontinue all affected performance
(unless the notice directs otherwise); and (2) complete any and all additional work
necessary for the orderly filing of documents and closing of Consultant's _affected
performance under the Agreement. After filing of documents and completion of
performance, Consultant shall deliver to City all data, drawings, specifications, reports,
estimates, summaries, and such other information and materials created or received by
Consultant in performing this Agreement, whether completed or in process. By accepting
payment for completion, filing, and delivering documents as called for in this section,
Consultant discharges City of all of City's payment obligations and liabilities under this
Agreement with regard to the affected performance.
3.2 City's Right to Terminate for Default. Consultant's failure to satisfactorily perform
any obligation required by this Agreement constitutes a default. Examples of default
include a determination by City that Consultant has: (1) failed to perform the services of
the required quality or within the time specified; (2) failed to perform any of the obligations
of this Agreement; and (3) failed to make sufficient progress in performance which may
jeopardize full performance.
3.2.1 If Consultant fails to satisfactorily cure a default within ten (10) calendar
days of receiving written notice from City specifying the nature of the default,
City may immediately cancel and/or terminate this Agreement, and
terminate each and every right of Consultant, and any person claiming any
pg. 3
Consultant Services Agreement
rights by or through Consultant under this Agreement.
3.2.2 If City terminates this Agreement, in whole or in part, City may procure,
upon such terms and in such manner as the City Manager may deem
appropriate, equivalent services and Consultant shall be liable to City for any
excess costs. Consultant shall also continue performance to the extent not
terminated.
3.3 Termination for Bankruptcy or Assignment for the Benefit of Creditors. If
Consultant files a voluntary petition in bankruptcy, is adjudicated bankrupt, or makes a
general assignment for the benefit of creditors, the City may at its option and without
further notice to, or demand upon Consultant, terminate this Agreement, and terminate
each and every right of Consultant, and any person claiming rights by and through
Consultant under this Agreement.
3.4 Consultant's Right to Payment Following Agreement Termination.
3.4.1 Termination for Convenience. If the termination is for the convenience of City
an equitable adjustment in the Agreement price shall be made. No amount
shall be allowed for anticipated profit on unperformed services, and no
amount shall be paid for an as needed Agreement beyond the Agreement
termination date.
3.4.2 Termination for Default. If, after City gives notice of termination for failure
to fulfill Agreement obligations to Consultant, it is determined that
Consultant had not so failed, the termination shall be deemed to have been
effected for the convenience of City. In such event, adjustment in the
Agreement price shall be made as provided in Section 3.1. City's rights and
remedies are in addition to any other rights and remedies provided by law or
under this Agreement.
3.5 Remedies Cumulative. City's remedies are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which City may be lawfully entitled
in case of any breach or threatened breach of any provision of this Agreement.
ARTICLE IV
COMPENSATION
4.0 Invoice Date. Consultant must submit invoices for services to City by the 10th day of
the month following the month in which Consultant provided services.
4.1 Manner of Payment. Consultant will be paid monthly, in arrears, for services
provided in accordance with the terms and conditions specified in the Agreement within
forty-five (45) days of receiving an invoice. City shall pay Consultant in accordance with the
terms contained within Attachment B. Consultant is not entitled to fees, including fees for
expenses, that exceed the amounts specified in Attachment B.
4.2 Invoice Detail. Consultant's invoice must be on Consultant's stationary with
pg. 4
Consultant Services Agreement
Consultant's name, address, and remittance address if different. Consultant's invoice must
have a date, an invoice number, a purchase order number, a description of the services
provided, and an amount due. Invoices must include the address of the location where
services were performed and the dates in which services were provided. Consultant shall
also -submit one statement of progress with the invoice and at least once per calendar
month to the Director of Public Works. Consultant shall include with each statement of
progress a description of completed Services, reasonably related expenses, if any, and all
other information, including but not limited to the progress percentage of the Scope of
Services and/or deliverables completed prior to the reporting date, as required by the City.
4.3 Amount of Compensation. City shall pay Consultant for performance of all Services
rendered in accordance with this Agreement, including, fees for Additional Services, as
defined below, and out-of-pocket expenses (Expenses), in an amount not to exceed one
hundred twenty three thousand one hundred dollars.,, and no cents (5123.100 00). Progress
billing rates shall be based on the rates indicated in Attachment B. The rates are valid
throughout the term of the Agreement or until the Scope of Services are completed unless
otherwise amended and agreed by both parties in writing.
4.4 Additional Services. City may require Consultant to perform additional Services
beyond those described in the Scope of Services (Additional Services). Before Consultant
commences such work, the Parties must agree in writing upon a fee for the Additional
Services, including reasonably related expenses, in accordance with Section 4.3. City will
not pay Consultant for Additional Services unless Consultant receives prior written
authorization from the City Manager. Failure to do so will result in payment being
withheld for services. If approved, Consultant will separately invoice for all Additional
Services and include a copy of the City Manager's written authorization.
4.5 - Additional Costs. Additional Costs are costs that can be reasonably determined to be
related to Consultant's errors or omissions. Consultant shall not be paid for the Services
required due to the Consultant's errors or omissions, and Consultant shall be responsible
for any Additional Costs incurred by the City, including overhead, associated with such
errors or omissions. These Additional Costs may be deducted from monies due, or that
become due, to Consultant. Whether or not there are any monies due, or becoming due,
Consultant shall reimburse City for Additional Costs due to Consultant's errors or
omissions.
4.6 Eighty Percent Notification. Consultant shall promptly notify City in writing of any
potential cost overruns. Cost overruns include, but are not limited to the following= (1)
where anticipated costs to be incurred in the next sixty calendar days, when added to all
costs previously incurred, will exceed 80 percent of the maximum compensation for this
Agreement; or (2) where the total cost for performance of the Scope of Services appears that
it may be greater than the maximum compensation for this Agreement.
4.7 Annual Appropriation of Funds. Consultant acknowledges that the Agreement term
may extend over multiple City fiscal years, and that work and compensation under this
Agreement is contingent on the Mayor and City Council appropriating funding for and
authorizing such work and compensation for those fiscal years. This Agreement may be
terminated at the end of the fiscal year for which sufficient funding is not appropriated and
pg. 5
Consultant Services Agreement
authorized. City is not obligated to pay Consultant for any amounts not duly appropriated
and authorized by Mayor and City Council.
4.8 Price Adjustments. Based on Consultant's written request and justification, the City
may approve an increase in unit prices on Consultant's pricing pages consistent with the
amount requested in the justification in an amount not to exceed the increase in the
Consumer Price Index, Riverside -San Bernardino -Ontario Area, for All Urban Customers
(CPI -U) as published by the Bureau of Labor Statistics, or 5.0%, whichever is less, during
the preceding one year term. If the CPI -U is a negative number, then the unit prices. shall
not be adjusted for that option year (the unit prices will not be decreased). A negative CPI -
U shall be counted against any subsequent increases in the CPI -U when calculating the
unit prices for later option years. Consultant must provide such written request and
justification no less than sixty days before the date in which City may exercise the option to
renew the Agreement, or sixty days before the anniversary date of the Agreement.
Justification in support of the written request must include a description of the basis for the
adjustment, the proposed effective date and reasons for said date, and the amount of the
adjustment requested with documentation to support the requested change (e.g. CPI -U or
5.0%, whichever is less). City's approval of this request must be in writing.
ARTICLE V
CONSULTANT'S OBLIGATIONS
5.0 Right to Audit. City retains the right to review and audit, and the reasonable right
of access to Consultant's and any Subcontractor's premises, to review and audit
Consultant's or Subcontractor's compliance with the provisions of this Agreement (City's
Right). City's Right includes the right to inspect, photocopy, and retain copies of any and all
books, records, documents and any other information (Records) relating to this Agreement
outside of Consultant's premises if deemed necessary by City in its sole discretion. City
shall keep these Records confidential to the extent permitted by law.
5.1 Audit. City's Right includes the .right to examine Records of procedures and practices
that City determines are necessary to discover and verify that Consultant or Subcontractor
is in compliance with all requirements under this Agreement.
5.2 Cost Audit. If there is a claim for additional compensation or for Additional Services,
the City's Right includes the right to Records that the City determines are necessary to
discover and verify all direct and indirect costs, of whatever nature, which are claimed to
have been incurred, or anticipated to be incurred.
5.3 Accounting Records. Consultant and all subcontractors shall maintain complete and
accurate Records in accordance with generally accepted accounting practices. Consultant
and Subcontractors shall make available to City for review and audit all Records relating to
the Services. Upon City's request, Consultant and Subcontractors shall submit exact
duplicates of originals of all requested records to City.
5A Subcontractors. Consultant's hiring or retaining of any third parties
(Subcontractors) to perform Services (Subcontractor Services) is subject to City's prior
written approval. Consultant shall list all Subcontractors known to Consultant on the
pg. 6
Consultant Services Agreement
Subcontractor List at the time this Agreement is entered. Consultant shall give written
notice to the City of the need at least 45 days before entering into a contract for such
Subcontractor Services. Consultant's notice shall include a justification, a description of the
Scope of Services, and an estimate of all costs for Subcontractor Services. Consultant may
request that City reduce the 45 -day notice period. City agrees to consider such requests in
good faith.
5.4.1 City's Right Binding on Subcontractors. Consultant shall include City's Right
as described in this Section 5.0 in any and all of their subcontracts, and shall
ensure that these sections are binding upon all Subcontractors.
5.4.2 Subcontractor Contract. Consultant shall require Subcontractor to obtain and
maintain insurance policies as required by City for the duration of this
Agreement. Consultant shall determine Subcontractor policy limits and
required endorsements proportionate to the services performed by
Subcontractor.
5.4.3 Payment to Subcontractor. Consultant is obligated to pay Subcontractor, for
Consultant and City- approved invoice amounts, out of amounts paid by City
to Consultant not later than fourteen (14) working days from Consultant's
receipt of payment from City. Nothing in this paragraph shall be construed to
impair the right of Consultant and any Subcontractor to negotiate fair and
reasonable pricing and payment provisions among themselves.
5.4.4 Withholding Subcontractor Payment. If - Subcontractor's performance is
deficient, Consultant shall notify City in writing of any withholding of
payment to Subcontractor, specifying: (a) the amount withheld; (b) the
specific cause under the terms of the subcontract for withholding payment; (c)
the connection between the cause for withholding payment and the amount
withheld; and (d) the remedial action Subcontractor must take in order to
receive the amount withheld. Once Subcontractor corrects the deficiency,
Consultant shall pay Subcontractor the amount withheld within fourteen
working days of the Consultant's receipt of City's next payment.
5.4.5 Disputes with Subcontractor. City shall not be made a party to any judicial or
administrative proceeding to resolve any dispute between Consultant and
Subcontractor. Consultant agrees to defend and indemnify the City as
described in Section 7.0 in any dispute between Consultant and
Subcontractor should City be made a party to any judicial or administrative
proceeding to resolve the dispute in violation of this position.
5.4.6 City as Beneficiary. City is an intended beneficiary of any work performed by
Subcontractor for purposes of establishing a duty of care between
Subcontractor and City.
5.5 Consultant and Subcontractor Principals for Consultant Services. This Agreement is
for unique Services. City has retained Consultant based on Consultant's particular
professional expertise as exhibited by the following members of the Consultant's
pg. 7
Consultant Services Agreement
organization= Mark Mendoza, Dan Akins, Thomas Boyle, Peter Rhoads, Amy Betonte, Brett
Brown, John Penner and Chris Maziar. Consultant may not delegate the performance of
Services to Subcontractors without City's prior written consent. It is mutually agreed that
the members of the Project Team are the principal persons responsible for delivery of all
Services and may not be removed from the Project without the City's prior written
approval. City may consider Consultant in default of this Agreement if any member of the
Project Team is prevented from providing Services without City's prior written approval.
Consultant must consult City as to any replacement if any member of the Project Team
becomes unavailable. City may terminate this Agreement if City does not approve of a
proposed replacement. Further, City reserves the right, after consultation with Consultant,
to require any of Consultant's employees or agents to be removed from providing Services
under this Agreement.
5.6 Responsibility for Errors. Consultant shall be responsible for its services and results
under this Agreement. Consultant, when requested, shall furnish clarification and/or
explanation as may be required by the City Manager or designee, regarding any services
rendered under this Agreement at no additional cost to City.
5.7 Delay. Unless otherwise specified herein, time is of the essence for each and every
provision of the Agreement. Consultant must immediately notify City in writing if there is,
or it is anticipated that there will be, a delay in performance. The written notice must
explain the cause for the delay and provide a reasonable estimate of the length of the delay.
City may terminate this Agreement as provided herein if City, in its sole discretion,
determines the delay is material. If a delay in performance is caused by any unforeseen
event(s) beyond the control of the parties, City may allow Consultant to a reasonable
extension of time to complete performance, but Consultant will not be entitled to damages
or additional compensation. Any such extension of time must be approved in writing by
City. The following conditions may constitute such a delay= war; changes in law or
government regulation; labor disputes; strikes; fires, floods, adverse weather or other
similar condition of the elements necessitating cessation of the performance; inability to
obtain materials, equipment or labor; or other specific reasons agreed to between City and
Consultant. This provision does not apply to a delay caused by Consultant's acts or
omissions. Consultant is not entitled to an extension of time to perform if a delay is caused
by Consultant's inability to obtain materials, equipment, or labor unless City has received,
in a timely manner, documentary proof satisfactory to City of Consultant's inability to
obtain materials, equipment, or labor, in which case City's approval must be in writing.
5.8 Restrictions and Regulations Requiring Agreement Modification. Consultant shall
immediately notify City in writing of any regulations or restrictions that may or will
require Consultant to alter the services to be provided. City reserves the right to accept any
such alteration, including any resulting reasonable price adjustments, or to cancel the
Agreement at no expense to the City.
5.9 Industry Standards. Consultant shall provide services acceptable to City in strict
conformance with the Agreement. Consultant shall also provide services in accordance with
the standards customarily adhered to by an experienced and competent provider of the
services called for under this Agreement using the degree of care and skill ordinarily
exercised by reputable providers of such services. Where approval by City Manager or other
pg. 8
Consultant Services Agreement
representative of City is required, it is understood to be general approval only and does not
relieve Consultant of responsibility for complying with all applicable laws, codes, policies,
regulations, and good business practices.
5.10 Records Retention and Examination. Consultant shall retain, protect, and maintain
in an accessible location all records and documents, including paper, electronic, and
computer records, relating to this Agreement for five (5) years after receipt of final payment
by City under this Agreement. Consultant shall make all such records and documents
available for inspection, copying, or other reproduction, and auditing by authorized
representatives of City, including the City Manager or designee. Consultant shall make
available all requested data and records at reasonable locations within City or County of
San Bernardino at any time dw-ing normal business hours, and as often as City deems
necessary. If records are not made available within the City or County of San Bernardino,
Consultant shall pay City's travel costs to the location where the records are maintained
and shall pay for all related travel expenses. Failure to make requested records available
for inspection, copying, or other reproduction, or auditing by the date requested may result
in termination of the Agreement. Consultant must include this provision in all subcontracts
made in connection with this Agreement. Consultant shall maintain records of all
subcontracts entered into with all firms, all project invoices received from Subcontractors
and Suppliers, all purchases of materials and services from Suppliers, and all joint venture
participation. Records shall show name, telephone number including area code, and
business address of each Subcontractor and Supplier, and joint venture partner, and the _
total amount actually paid to each firm. Project relevant records, regardless of tier, may be
periodically reviewed by the City.
5.11 Quality Assurance Meetings. Upon City's request, Consultant shall schedule one or
more quality assurance meetings with City Manager or designee to discuss Consultant's
performance. If requested, Consultant shall schedule the first quality assurance meeting no
later than eight (8) weeks from the date of commencement of work under the Agreement. At
the quality assurance meeting(s), City Manager or designee will provide Consultant with
feedback, will note any deficiencies in Agreement performance, and provide Consultant
with an opportunity to address and correct such deficiencies. The total number of quality
assurance meetings that may be required by City will depend upon Consultant's
performance.
5.12 Duty to Cooperate with Auditor. The City Manager or designee may, in his sole
discretion, at no cost to the City, and for purposes of performing the City's audit
responsibilities under Charter section 704, review Consultant's records to confirm
Agreement compliance. Consultant shall make reasonable efforts to cooperate with City
Manager's requests.
5.13 Criminal Background Certification. Consultant certifies that all employees working
on this Agreement have had a criminal background check and that said employees are clear
of any felony convictions.
5.14 Photo Identification Badge. Consultant shall provide a company photo identification
badge to any individual assigned by Consultant or subcontractor to perform services on City
premises. Such badge must be worn at all times while on City premises. City reserves the
pg- 9
Consultant Services Agreement
right to require Consultant to pay fingerprinting fees for personnel assigned to work in
sensitive areas. All employees shall turn in their photo identification badges to Consultant
upon completion of services and prior to final payment of invoice.
5.15 Standards of Conduct. Consultant is responsible for maintaining standards of
employee competence, conduct, courtesy, appearance, honesty, and integrity satisfactory to
the City.
5.16 Supervision. Consultant shall provide adequate and competent supervision at all
times during the Agreement term. Consultant shall be readily available to meet with the
City. Consultant shall provide the telephone numbers where its representative(s) can be
reached.
5.17 City Premises. Consultant's employees and agents shall comply with all City rules
and regulations while on City premises.
5.18 Removal of Employees. City may request Consultant immediately remove from
assignment to the City any employee found unfit to perform duties at the City. Consultant
shall comply with all such requests.
5.19 Licenses and Permits. Consultant shall, without additional expense to the City, be
responsible for obtaining any necessary licenses, permits, certifications, accreditations, fees
and approvals for complying with any federal, state, county, municipal, and other laws,
codes, and regulations applicable to Agreement performance. This includes, but is not
limited to, any laws or regulations requiring the use of licensed Consultants to perform
parts of the work.
ARTICLE VI
INTELLECTUAL PROPERTY RIGHTS
6.0 Rights in Data. If, in connection with the services performed under this Agreement,
Consultant or its employees, agents, or subcontractors, create artwork, audio recordings,
blueprints, designs, diagrams, documentation, photographs, plans, reports, software, source
code, specifications, surveys, system designs, video recordings, or any other original works
of authorship, whether written or readable by machine (Deliverable Materials), all rights of
Consultant or its subcontractors in the Deliverable Materials, including, but not limited to
publication, and registration of copyrights, and trademarks in the Deliverable Materials,
are the sole property of City. Consultant, including its employees, agents, and
subcontractors, may not use any Deliverable Material for purposes unrelated to
Consultant's work on behalf of the City without prior written consent of City. Consultant
may not publish or reproduce any Deliverable Materials, for purposes unrelated to
Consultant's work on behalf of the City, without the prior written consent of the City.
6.1 Intellectual Property Rights Assignment. For no additional compensation,
Consultant hereby assigns to City all of Consultant's rights, title, and interest in and to the
content of the Deliverable Materials created by Consultant or its employees, agents, or
subcontractors, including copyrights, in connection with the services performed under this
Agreement. Consultant shall promptly execute and deliver, and shall cause its employees,
pg. 10
Consultant Services Agreement
agents, and subcontractors to promptly execute and deliver, upon request by the City or any
of its successors or assigns at any time and without further compensation of any kind, any
power of attorney, assignment, application for copyright, patent, trademark or other
intellectual property right protection, or other papers or instruments which may be
necessary or desirable to fully secure, perfect or otherwise protect to or for the City, its
successors and assigns, all right, title and interest in and to the content of the Deliverable
Materials. Consultant also shall cooperate and assist in the prosecution of any action or
opposition proceeding involving such intellectual property rights and any adjudication of
those rights.
6.2 Consultant Works. Consultant Works means tangible and intangible information
and material that: (a) had already been conceived, invented, created, developed or acquired
by Consultant prior to the effective date of this Agreement; or (b) were conceived, invented,
created, or developed by Consultant after the effective date of this Agreement, but only to
the extent such information and "material do not constitute part or all of the Deliverable
Materials called for in this Agreement. All Consultant Works, and all modifications or
derivatives of such Consultant Works, including all intellectual property rights in or
pertaining to the same, shall be owned solely and exclusively by Consultant.
6.3 Subcontracting. In the event that Consultant utilizes a subcontractor(s) for any
portion of the work that comprises the whole or part of the specified Deliverable Materials
to the City, the agreement between Consultant and the subcontractor shall include a
statement that identifies the Deliverable Materials as a "works for hire" as described in the
United States Copyright Act of 1976, as amended, and that all intellectual property rights
in the Deliverable Materials, whether arising in copyright, trademark, service mark or
other forms of intellectual property rights, belong to and shall vest solely with the City.
Further, the agreement between Consultant and its subcontractor shall require that the
subcontractor, if necessary, shall grant, transfer, sell and assign, free of charge, exclusively
to City, all titles, rights and interests in and to the Deliverable Materials, including all
copyrights, trademarks and other intellectual property rights. City shall have the right to
review any such agreement for compliance with this provision.
6.4 Intellectual Property Warranty and Indemnification. Consultant represents and
warrants that any materials or deliverables, including all Deliverable Materials, provided
under this Agreement are either original, or not encumbered, and do not infringe upon the
copyright, trademark, patent or other intellectual property rights of any third party, or are
in the public domain. If Deliverable Materials provided hereunder become the subject of a
claim, suit or allegation of copyright, trademark or patent infringement, City shall have the
right, in its sole discretion, to require Consultant to produce, at Consultant's own expense,
new non -infringing materials, deliverables or works as a means of remedying any claim of
infringement in addition to any other remedy available to the City under law or equity.
Consultant further agrees to indemnify, defend, and hold harmless the City, its officers,
employees and agents from and against any and all claims, actions, costs, judgments or
damages, of any type, alleging or threatening that any Deliverable Materials, supplies,
equipment, services or works provided under this Agreement infringe the copyright,
trademark, patent or other intellectual property or proprietary rights of any third party
(Third Party Claim of Infringement). If a Third Party Claim of Infringement is threatened
or made before Consultant receives payment under this Agreement, City shall be entitled,
pg. 11
Consultant Services Agreement
upon written notice to Consultant, to withhold some or all of such payment.
6.5 Software Licensing. Consultant represents and warrants that the software, if any,
as delivered to City, does not contain any program code, virus, worm, trap door, back door,
time or clock that would erase data or programming or otherwise cause the software to
become inoperable, inaccessible, or incapable of being used in accordance with its user
manuals, either automatically, upon the occurrence of licensor -selected conditions or
manually on command. Consultant further represents and warrants that all third party
software, delivered to City or used by Consultant in the performance of the Agreement, is
fully licensed by the appropriate licensor.
6.6 Publication. Consultant may not publish or reproduce any Deliverable Materials, for
purposes unrelated to Consultant's work on behalf of the City without prior written consent
from the City.
6.7 Royalties, Licenses, and Patents. Unless otherwise specified, Consultant shall pay
all royalties, license, and patent fees associated with providing services under this
Agreement. Consultant warrants that any goods, materials, supplies, and equipment to be
supplied do not infringe upon any patent, trademark, or copyright, and further agrees to
defend any and all suits, actions and claims for infringement that are brought against the
City, and to defend, indemnify and hold harmless the City, its elected officials, officers, and
employees from all liability, loss and -damages, whether general, exemplary. or punitive,
suffered as a result of any actual or claimed infringement asserted against the City,
Consultant, or those furnishing goods, materials, supplies, or equipment to Consultant
under the Agreement.
ARTICLE VII
INDEMNHICATION AND INSURANCE
7.0 Indemnification. To the fullest extent permitted by law, Consultant shall defend
(with legal counsel reasonably acceptable to City), indemnify, protect, and hold harmless
City and its elected officials, officers, employees, agents, and representatives (Indemnified
Parties) from and against any and all claims, losses, costs, damages, injuries (including,
without limitation, injury to or death of an employee of Consultant or its subcontractors),
expense, and liability of every kind, nature and description (including, without limitation,
incidental and consequential damages, court costs, and litigation expenses and fees of
expert consultants or expert witnesses incurred in connection therewith and costs of
investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in
part, any goods provided or performance of services under this Agreement by Consultant,
any subcontractor, anyone directly or indirectly employed by either of them, or anyone that
either of them control. Consultant's duty to defend, indemnify, protect and hold harmless
shall not include any claims or liabilities arising from the sole negligence or willful
misconduct of the Indemnified Parties.
7.1 Insurance. Consultant shall not begin any performance under this Agreement until
it has (1) provided City insurance certificates and endorsements reflecting evidence of all
insurance and endorsements required and described herein; (2) obtained City approval of
each insurance company or companies; and (3) confirmed that all policies contain the
pg. 12
Consultant Services Agreement
special provisions required herein. Consultant's liabilities, including but not limited to
Consultant's indemnity obligations, under this Agreement, shall not be deemed limited in
any way to the insurance coverage required herein. Maintenance of specified insurance
coverage is a material element of this Agreement, and Consultant's failure to maintain or
renew coverage or to provide evidence of renewal during the term of this Agreement may .be
treated by City as a material breach of Agreement. City reserves the right to require
Consultant to submit copies of any policy upon reasonable request by City.
7.1.1 All policies shall include, and the insurance certificates shall reflect, a 30 -day
non -cancellation clause that provides thirty (30) days written notice by
certified mail to City prior to any material change or cancellation of any of
said policies.
7.1.2 Consultant shall not modify any policy or endorsement thereto which
increases City's exposure to loss for the duration of this Agreement.
7.1.3 Consultant shall maintain insurance coverage at its own expense as follows:
7.1.3.1 Commercial General Liability. Commercial General Liability (CGL)
insurance written on an ISO Occurrence form CG 00 01 07 98 or an
equivalent form providing coverage at least as broad which shall cover
liability arising from any and all bodily injury, personal injury,
advertising injury or property damage in the amount of $1 million per
occurrence and subject to an annual aggregate of $2 million. There
shall be no endorsement or modification of the CGL limiting the scope
of coverage for either insured claims or contractual liability. All
defense costs shall be outside the limits of the policy.
7.1.3.2 Commercial. Automobile Liability. For all of Consultant's automobiles
including owned, hired and non -owned automobiles, Consultant shall
keep in full force and effect, automobile insurance written on an ISO
form CA 00 01 12 90 or a later version of this form or an equivalent
form providing coverage at least as broad for bodily injury and
property damage for a combined single limit of $1 million per
occurrence. The insurance certificate shall reflect coverage for any
automobile (any auto).
7.1.3.3 Workers' Compensation. For all of Consultant's employees who are
subject to this Agreement and to the extent required by the applicable
state or federal law, Consultant shall keep in full force and effect, a
Workers' Compensation policy. That policy shall provide a minimum
of $1 million of employer's liability coverage, and Consultant shall
provide an endorsement that the insurer waives the right of
subrogation against City and its respective elected officials, officers,
employees, agents, and representatives.
7.1.3.4 Professional Liability. Consultant shall obtain Professional Liability
coverage with limits of at least $1 million per occurrence and $2
pg. 13
Consultant Services Agreement
million aggregate, covering the risk of errors and omissions, negligent
acts and costs of claims/litigation, including investigation and court
costs. If the coverage is written on a "claims -made" form, Consultant
must ensure that the policy retroactive date is before the date of the
Agreement is awarded, that coverage is maintained during the
duration of performance of the Agreement or the Agreement period
(whichever is longer) and the policy has a reporting period or run-off
provision of at least three (3) years following completion or
termination of the performance of professional services under this
Agreement.
7.1.4 Deductibles. All deductibles or retentions on any policy shall be the sole
responsibility of Consultant and shall be disclosed to City at the time the
evidence of insurance is provided.
7.1.5 Acceptability of Insurers. Except for the State Compensation Insurance
Fund, all insurance required by this Agreement, shall only be carried by
insurance companies with a current rating of at least "A-, VI" by A.M. Best
Company that are authorized by the California Insurance Commissioner to
do business in the State of California, and that have been approved by City.
7.1.5.1 City will accept insurance provided by non -admitted, "surplus lines"
carriers only if the carrier is authorized to do business in the State of
California and is included on the List of Approved Surplus Lines
Insurers (LASLI list). All policies of insurance carried by non -
admitted carriers are subject to all of the requirements for policies of
insurance provided by admitted carriers described herein.
7.1.6 Required Endorsements. The following endorsements to the policies of
insurance are required to be provided to City before any performance is
initiated under this Agreement=
7.1.6.1 Commercial General Liability Insurance Endorsements.
7.1.6.1.1 Additional Insured. To the fullest extent allowed by law,
including but not limited to California Insurance Code section
11580.04, the policy or policies must be endorsed to include as an
insured City of San Bernardino and its respective elected officials,
officers, employees, agents and representatives with respect to
liability arising out of (a) ongoing operations performed by you or on
your behalf, (b) your products, (c) your work, including but not limited
to your completed operations performed by you or on your behalf, or
(d) premises owned, leased, controlled or used by you.
7.1.6.1.2 Primary and Non-contributory Coverage. The policy or
policies must be endorsed to provide that the insurance afforded by
the Commercial General Liability policy or policies is primary to any
insurance or self-insurance of City, its elected officials, officers,
pg. 14
Consultant Services Agreement
employees, agents and representatives as respects operations of the
Named Insured. Any insurance maintained by City, its elected
officials, officers, employees, agents and representatives shall be in
excess of Consultant's insurance and shall not contribute to it.
7.1.6.1.3 Severability of Interest. The policy or policies must be
endorsed to provide that Consultant's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except
with respect to the limits of the insurer's liability and shall provide
cross -liability coverage.
7.1.6.2 Automobile Liability Insurance Endorsements.
7.1.6.2.1 Additional Insured. To the fullest extent allowed by law,
including but not limited to California Insurance Code section
11580.04, the policy or policies must be endorsed to include as an
insured City of San Bernardino and its respective elected officials,
officers, employees, agents and representatives with respect to
liability arising out of automobiles owned, leased, hired or borrowed
by or on behalf of Consultant.
7.1.6.2.2 Primary and Non-contributory Coverage. The policy or
policies must be endorsed to provide that the insurance afforded by
the Automobile Liability policy or policies is primary to any insurance
or self-insurance of City, its elected officials, officers, employees,
agents and representatives as respects operations of the Named
Insured. Any insurance maintained by City, its elected officials,
officers, employees, agents and representatives shall be in excess of
Consultant's insurance and shall not contribute to it.
7.1.6.2.3 Severability of Interest. The policy or policies must be
endorsed to provide that Consultant's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except
with respect to the limits of the insurer's liability and shall provide
cross -liability coverage.
7.1.6.3 Worker's Compensation Insurance Endorsements.
7.1.6.3.1 Waiver of Subrogation. The Worker's Compensation
policy or policies must be endorsed to provide that the insurer will
waive all rights of subrogation against City of San Bernardino, its
elected officials, officers, employees, agents and representatives for
losses paid under the terms of this policy or these policies which arise
from work performed by the Named Insured for City.
7.1.6.3.2 Reservation of Rights. City reserves the right, from time
to time, to review Consultant's insurance coverage, limits, deductible,
and self-insured retentions to determine if they are acceptable to City.
pg. 15
Consultant Services Agreement
City will reimburse Consultant for the cost of the additional premium
for any coverage requested by City in excess of that required by this
Agreement, without overhead, profit, or any other markup.
7.1.7 Additional Insurance. Consultant may obtain additional insurance not
required by this Agreement.
7.1.8 Excess Insurance. All policies providing excess coverage to City shall follow
the form of the primary policy or policies including but not limited to all
endorsements.
ARTICLE VIII
CITY REQUIREMENTS
8.0 City Policies. By signing this Agreement, Consultant certifies that Consultant is
aware of, and will comply with, these policies throughout the duration of the Agreement.
Consultant shall ensure that this language is included in Agreements between Consultant
and any Subcontractors, vendors and suppliers.
8.1 Drug -Free Workplace. Consultant shall comply with City's Drug -Free Workplace
requirements.
8.2 Americans with Disabilities Act (ADA) and State Access Laws and Regulations.
Consultant shall comply with all accessibility requirements under the ADA and under Title
24 of the California Code of Regulations (Title 24). When a conflict exists between the ADA
and Title 24, Consultant shall comply with the most restrictive requirement (i.e., that
which provides the most access).
8.3 Non -Discrimination. nation. Consultant shall not discriminate on the basis of race, gender,
gender expression, gender identity, religion, national origin, ethnicity, sexual orientation,
age, or disability in the solicitation, selection, hiring or treatment of subcontractors,
vendors or suppliers. Consultant shall provide equal opportunity for subcontractors to
participate in subcontracting opportunities. Consultant understands and agrees that
violation of this clause shall be considered a material breach of the Agreement and may
result in Agreement termination, debarment, or other sanctions. Consultant shall ensure
that this language is included in Agreements between Consultant and any subcontractors,
vendors and suppliers.
8.4 Business Registration Certificate. Any company doing business with the City of San
Bernardino is required to obtain a Business Registration Certificate and to provide a copy
of its Business Registration Certificate to the City before an Agreement is executed.
ARTICLE IX
CONFLICTS OF INTEREST AND VIOLATIONS OF LAw
9.0 Conflict of Interest Laws. Consultant is subject to all federal, state and local conflict
of interest laws, regulations, and policies applicable to public contracts and procurement
practices including, but not limited to, California Government Code sections 1090, et. seq.
pg. 16
Consultant Services Agreement
and 81000, et. seq. City may determine that Consultant must complete one or more
statements of economic interest disclosing relevant financial interests. Upon City's request,
Consultant shall submit the necessary documents to City.
9.1 Consultant's Responsibility for Employees and Agents. Consultant is required to
establish and make known to its employees and agents appropriate safeguards to prohibit
employees from using their positions for a purpose that is, or that gives the appearance of
being, motivated by the desire for private gain for themselves or others, particularly those
with whom they have family, business or other relationships.
9.2 Consultant's Financial or Organizational Interests. In connection with any task,
Consultant shall not recommend or specify any product, supplier, or Consultant with whom
Consultant has a direct or indirect financial or organizational interest or relationship that
would violate conflict of interest laws, regulations, or policies.
9.3 Certification of Non -Collusion. Consultant certifies that: (1) Consultant's bid or
proposal was not made in the interest of or on behalf of any person, firm, or corporation not
identified; (2) Consultant did not directly or indirectly induce or solicit any other bidder or
proposer to put in .a sham bid or proposal; (3) Consultant did not directly or indirectly
induce or solicit any other person, firm or corporation to refrain from bidding; and (4)
Consultant did not seek by collusion to secure any advantage over the other bidders or
proposers.
9.4 Airing City Employees. This Agreement shall be unilaterally and immediately
terminated by City if Consultant employs an individual who within the twelve (12) months
immediately preceding such employment did in his/her capacity as a City officer or
employee participate in negotiations with or otherwise have an influence on the selection of
Consultant.
ARTICLE X
DISPUTE RESOLUTION
10.0 Mediation. If a dispute arises out of or relates to this Agreement and cannot be
settled through normal Agreement negotiations, Consultant and City shall use mandatory
non-binding mediation before having recourse in a court of law.
10.1 Selection of Mediator. A single mediator that is acceptable to both parties shall be
used to mediate the dispute. The mediator will be knowledgeable in the subject matter of
this Agreement, if possible.
10.2 Expenses. The expenses of witnesses for either side shall be paid by the party
producing such witnesses. All other expenses of the mediation, including required traveling
and other expenses of the mediator, and the cost of any proofs or expert advice produced at
the direct request of the mediator, shall be borne equally by the parties, unless they agree
otherwise.
10.3 Conduct of Mediation Sessions. Mediation hearings will be conducted in an informal
manner and discovery will not be allowed. The discussions, statements, writings and
pg. 17
Consultant Services Agreement
admissions will be confidential to the proceedings (pursuant to California Evidence Code
sections 1115 through 1128) and will not be used for any other purpose unless otherwise
agreed by the parties in writing. The parties may agree to exchange any information they
deem necessary. Both parties shall have a representative attend the mediation who is
authorized to settle the dispute, though City's recommendation of settlement may be
subject to the approval of the Mayor and City Council. Either party may have attorneys,
witnesses or experts present.
10.4 Mediation Results. Any agreements resulting from mediation shall be memorialized
in writing. The results of the mediation shall not be final or binding unless otherwise
agreed to in writing by the parties. Mediators shall not be subject to any subpoena or
liability, and their actions shall not be subject to discovery.
ARTICLE XI
MANDATORY ASSISTANCE
11.0 Mandatory Assistance. If a third party dispute or litigation, or both, arises out of, or
relates in any way to the services provided to the City under the Agreement, Consultant,
its agents, officers, and employees agree to assist in resolving the dispute or litigation upon
City's request. Consultant's assistance includes, but is not limited to, providing professional
consultations, attending mediations, arbitrations, depositions, trials or any event related to
the dispute resolution and/or litigation.
11.1 Compensation for Mandatory Assistance. City will compensate Consultant for fees
incurred for providing Mandatory Assistance. If, however, the fees incurred for the
Mandatory Assistance are determined, through resolution of the third party dispute or
litigation, or both, to be attributable in whole, or in part, to the acts or omissions of
Consultant, its agents, officers, and employees, Consultant shall reimburse City for all fees
paid to Consultant, its agents, officers, and employees for Mandatory Assistance.
11.2 Attorneys' Fees Related to Mandatory Assistance. In providing City with dispute or
litigation assistance, Consultant or its agents, officers, and employees may incur expenses
and/or costs. Consultant agrees that any attorney fees it may incur as a result of assistance
provided under Section 11.0 are not reimbursable.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.0 Headings. All headings are for convenience only and shall not affect the
interpretation of this Agreement.
12.1 Non -Assignment. Consultant may not assign the obligations under this Agreement,
whether by express assignment or by sale of the company, nor any monies due or to become
due under this Agreement, without City's prior written approval. Any assignment in
violation of this paragraph shall constitute a default and is grounds for termination of this
Agreement at the City's sole discretion. In no event shall any putative assignment create a
contractual relationship between City and any putative assignee.
pg. 18
Consultant Services Agreement
12.2 Independent Contractors. Consultant and any subcontractors employed by
Consultant are independent contractors and not agents of City. Any provisions of this
Agreement that may appear to give City any right to direct Consultant concerning the
details of performing the services, or to exercise any control over performance of the
Agreement, shall mean only that Consultant shall follow the direction of City concerning
the end results of the performance.
12.3 Subcontractors. All persons assigned to perform any work related to this Agreement,
including any subcontractors, are deemed to be employees of Consultant, and Consultant
shall be directly responsible for their work.
12.4 Covenants and Conditions. All provisions of this Agreement expressed as either
covenants or conditions on the part of City or Consultant shall be deemed to be both
covenants and conditions.
12.5 Compliance with Controlling Law. Consultant shall comply with all applicable local,
state, and federal laws, regulations, and policies. Consultant's act or omission in violation of
applicable local, state, and federal laws, regulations, and policies is grounds for Agreement
termination. In addition to all other remedies or damages allowed by law, Consultant is
liable to City for all damages, including costs for substitute performance, sustained as a
result of the violation. In addition, Consultant may be subject to suspension, debarment, or
both.
12.6 Governing Law. The Agreement shall be deemed to be made under, construed in
accordance with, and governed by the laws of the State of California without regard to the
conflicts or choice of law provisions thereof.
12.7 Venue. The venue for any suit concerning solicitations or the Agreement, the
interpretation of application of any of its terms and conditions, or any related disputes shall
be in the Superior Court for the State of California, County of San Bernardino.
12.8 Successors in Interest. This Agreement and all rights and obligations created by this
Agreement shall be in force and effect whether or not any parties to the Agreement have
been succeeded by another entity, and all rights and obligations created by this Agreement
shall be vested and binding on any party's successor in interest.
12.9 No Waiver. No failure of either City or Consultant to insist upon the strict
performance by the other of any covenant, term or condition of this Agreement, nor any
failure to exercise any right or remedy consequent upon a breach of any covenant, term, or
condition of this Agreement, shall constitute a waiver of any such breach of such covenant,
term or condition. No waiver of any breach shall affect or alter this Agreement, and each
and every covenant, condition, and term hereof shall continue in full force and effect
without respect to any existing or subsequent breach.
12.10 Severability. The unenforceability, invalidity, or illegality of any provision of this
Agreement shall not render any other provision of this Agreement unenforceable, invalid,
or illegal.
pg. 19
Consultant Services Agreement
12.11 Drafting Ambiguities. The parties acknowledge that they have the right to be
advised by legal counsel with respect to the negotiations, terms and conditions of this
Agreement, and the decision of whether to seek advice of legal counsel with respect to this
Agreement is the sole responsibility of each party. This Agreement shall not be construed in
favor of or against either party by reason of the extent to which each party participated in
the drafting of the Agreement.
12.12 Amendments. Neither this Agreement nor any provision hereof may be changed,
modified, amended or waived except by a written agreement executed by duly authorized
representatives of City and Consultant. Any alleged oral amendments have no force or
effect.
12.13 Conflicts between Terms. If this Agreement conflicts with an applicable local, state,
or federal law, regulation, or court order, the applicable local, state, or federal law,
regulation, or court order shall control. Varying degrees of stringency among the main body
of this Agreement, the exhibits or attachments, and laws, regulations, or orders are not
deemed conflicts, and the most stringent requirement shall control. Each party shall notify
the other immediately upon the identification of any apparent conflict or inconsistency
concerning this Agreement.
12.14 Survival of Obligations. All representations, indemnifications, warranties, and
guarantees made in, required by, or given in accordance with this Agreement, as well as all
continuing obligations indicated in this Agreement, shall survive, completion and
acceptance of performance and termination, expiration or completion of the Agreement.
12.15 Confidentiality of Services. All services performed by Consultant, and any
subcontractors if applicable, including but not limited to all drafts, data, information,
correspondence, proposals, reports of any nature, estimates compiled or composed by
Consultant, are for the sole use of City, its agents, and employees. Neither the documents
nor their contents shall be released by Consultant or any subcontractor to any third party
without the prior written consent of City. This provision does not apply to information that:
(1) was publicly known, or otherwise known to Consultant, at the time it was disclosed to
Consultant by City; (2) subsequently becomes publicly known through no act or omission of
Consultant; or (3) otherwise becomes known to Consultant other than through disclosure by
City.
12.16 Insolvency. If Consultant enters into proceedings relating to bankruptcy, whether
voluntary or involuntary, Consultant agrees to furnish, by certified mail or electronic
commerce method authorized by the Agreement, written notification of the bankruptcy to
the City. This notification shall be furnished within five (5) days of the initiation of the
proceedings relating to bankruptcy filing. This notification shall include the date on which
the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition
was filed, and a listing of City Agreements against which final payment has not been made.
This obligation remains in effect until final payment is made under this Agreement.
12.17 No Third Party Beneficiaries. Except as may be specifically set forth in this
Agreement, none of the provisions of this Agreement are intended to benefit any third party
pg. 20
Consultant Services Agreement
not specifically referenced herein. No party other than City and Consultant shall have the
right to enforce any of the provisions of this Agreement.
12.18 Actions of City in its Governmental Capacity.. Nothing in this Agreement shall be
interpreted as limiting the rights and obligations of City in its governmental or regulatory
capacity.
12.19 Counterparts. This Agreement may be executed in counterparts, which when taken
together shall constitute a -single signed original as though all Parties had executed the
same page.
[Signature Page Follows]
pg. 21
Consultant Services Agreement
IN WITNESS WHEREOF, this Agreement is executed by City and Consultant acting by
and through their authorized officers.
CITY OF SAN BERNARDINO:
Date: 0Q /-1,0-/2018
Andrea . Miller, City Manager
APPROVED AS TO FORM=
Gary D. Saenz, City Attorney
By:
i
Signature Page
Consultant Services Agreement
CONSULTANT
Date= /0 / *7-- / 2018
By: i
Its: � eA.S I Ck P v