City of El Centro PUBLIC WORKS DEPARTMENT – ENGINEERING DIVISION

DIESEL EMISSION RETROFIT DEVICES & INSTALLATION

REQUEST FOR PROPOSALS

PROJECT NO. CML-5169(035)

JUNE 2013

Mandatory Pre-Proposal Meeting

Date: Wednesday June 26th, 2013 @ 9:00 AM Location: 307 W. Brighton Avenue, El Centro CA 92243

Bids Due

Date: Thursday July 11th, 2013 @ 2:00 PM Location: City Clerk’s Office. 1275 W. Main Street, El Centro CA 92243

CITY OF EL CENTRO

INVITATION FOR BIDS

DIESEL EMISSION RETROFIT DEVICES & INSTALLATION 1. GENERAL INFORMATION The City of El Centro is inviting bids for the DIESEL EMISSION RETROFIT DEVICES & INSTALLATION PROJECT NO. CML-5169(035) 2. SCOPE OF WORK To provide Diesel Emission Retrofit Devices and Installation. The goal is to purchase and install the most effective technology for each chosen vehicle or piece of equipment and its duty cycle. Diesel retrofit technologies in this RFP fall into Category III and they are specifically designed to reduce particulate matter (PM), carbon monoxide (CO), and hydrocarbon (HC) emissions from diesel engines. The products that must be offered under an Agreement are required to meet all appropriate automotive and equipment manufacturers warranty standards and related certifications. The Contractor(s) for the Agreement(s) must supply California Air Resources Board (CARB) verified retrofit technology. Both on-road and off-road vehicles and equipment are included and they are listed in Attachment D, Equipment and Vehicle Listing. Maintenance and cleaning of the retrofit devices may be negotiated by an Entity at a future date after installation.

The successful Proposer will be expected to enter into a not-to-exceed Agreement with the City (reference Exhibit A).

Attachments and Exhibits are available with the complete request for proposal/bid. 3. BID REQUIREMENTS SEALED BIDS will be accepted at the Office of the City Clerk, City Hall, 1275 West Main Street, El Centro, California until 2:00 pm on Thursday, July 11th, 2013, at which time all bids will be publicly opened and read aloud. Each bid must be submitted in a sealed envelope bearing on the outside the name of the bidder, his/her address, and the name of the project for which the bid is submitted. If forwarded by mail, the sealed envelope containing the bid must be enclosed in another envelope addressed as specified in the bid form. Copies of plans and specifications may be obtained at the Office of the Director of Public Works, at the above address, for a non-refundable fee of $20.00. Checks are to be made payable to the City of El Centro. MANDATORY PRE-BID MEETING: Bidders are required to attend a pre-bid meeting which will be conducted by the City of El Centro City Engineer (“the Engineer”) at 9:00 AM on Wednesday, June 26th, 2013. The meeting will be held at the City of El Centro, Public Works Yard Conference Room located at 307 W. Brighton Avenue in El Centro. This contract is subject to state contract nondiscrimination and compliance requirements pursuant to Government Code, Section 12990. Inquiries or questions based on alleged patent ambiguity of the plans, specifications or estimate must be communicated as a bidder inquiry prior to bid opening. Any such inquiries or questions, submitted after bid opening, will not be treated as a bid protest.

The City of El Centro affirms that in any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full opportunity to submit bids in response to this invitation. Pursuant to Section 1773 of the Labor Code, the general prevailing wage rates in the county, in which the work is to be done have been determined by the Director of the California Department of Industrial Relations. These wages are set forth in the General Prevailing Wage Rates for this project, available at City of El Centro address and available from the California Department of Industrial Relations’ Internet web site at http://www.dir.ca.gov/DLSR/PWD. The applicable Federal minimum wage rates as predetermined by the United States Secretary of Labor are available in the City of El Centro’s website under the section dedicated to this project which is found at http://www.cityofelcentro.org/rfps.html In addition, a copy may be examined at the offices described above where project plans, special provisions, and bid forms may be seen. Revisions to the applicable Federal Wage Rates, up to 10 days before bid opening, will be identified by the issuance of an addendum with the corresponding Internet Website address of where the revisions can be found. The final contract documents signed by the local agency and the contractor, will physically include the Federal Wage Rates, or the Federal Wage Rates as revised by addendums, if any such addendums have been issued. Future effective general prevailing wage rates, which have been predetermined and are on file with the California Department of Industrial Relations are referenced but not printed in the general prevailing wage rates Attention is directed to the Federal minimum wage rate requirements in the Contract Documents. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the general prevailing wage rates determined by the Director of the California Department of Industrial Relations for similar classifications of labor, the Contractor and subcontractors shall pay not less than the higher wage rate. The Department will not accept lower State wage rates not specifically included in the Federal minimum wage determinations. This includes "helper" (or other classifications based on hours of experience) or any other classification not appearing in the Federal wage determinations. Where Federal wage determinations do not contain the State wage rate determination otherwise available for use by the Contractor and subcontractors, the Contractor and subcontractors shall pay not less than the Federal minimum wage rate, which most closely approximates the duties of the employees in question. The U.S. Department of Transportation (DOT) provides a toll-free “hotline” service to report bid rigging activities. Bid rigging activities can be reported Mondays through Fridays, between 8:00 a.m. and 5:00 p.m., Eastern Time, Telephone No. 1-800-424-9071. Anyone with knowledge of possible bid rigging, bidder collusion, or other fraudulent activities should use the “hotline” to report these activities. The “hotline” is part of the DOT’s continuing effort to identify and investigate highway construction contract fraud and abuse and is operated under the direction of the DOT Inspector General. All information will be treated confidentially and caller anonymity will be respected. All bids are to be compared on the basis of the Director of Public Works estimate of the quantities of work to be done. A bid will only be accepted from a Contractor who is licensed in accordance with the provisions of Chapter 9, Division 3, of the Business and Professions Code of the State of California as amended. DISADVANTAGED BUSINESS ENTERPRISES (DBE) Bidders are advised that, as required by federal law, the City of El Centro is implementing new Disadvantaged Business Enterprise requirements for Disadvantaged Business Enterprises (DBE). This project has a specific contract DBE Contract goal of 0%. No goal has been established; however bidders are encouraged to obtain DBE participation in their contract.

Plans, specifications and bid forms may be obtained at the Office of the City Engineer located at City Hall, 1275 Main Street, El Centro, California.

If bidder is a corporate entity and is awarded the contract, prior to execution of the contract, the contractor shall submit satisfactory, documentary proof that the person(s) executing the contract on the behalf of said corporation has authority to do so. CITY’S RIGHT RESERVED: The City reserves the right to reject any or all bids, to waive any informality in a bid and to make awards in the interest of the City. DATE: _June 10, 2013____________________

END OF INVITATIONS FOR BIDS

DEFINITIONS:

City – The City of El Centro is soliciting for proposals from potential Contractors to provide Diesel Emission Retrofit Devices and Installation. The City is the City of El Centro as stated in this solicitation.

Agreement - For the purpose of this RFP, Agreement means the City of El Centro Agreement, Exhibits A

PART I

PROPOSAL REQUIREMENTS

SECTION A GENERAL INFORMATION 1. SCOPE OF AGREEMENT(S) To provide Diesel Emission Retrofit Devices and Installation. The goal is to purchase and install the most effective technology for each chosen vehicle or piece of equipment and its duty cycle. Diesel retrofit technologies in this RFP fall into Category III and they are specifically designed to reduce particulate matter (PM), carbon monoxide (CO), and hydrocarbon (HC) emissions from diesel engines. The products that must be offered under a Agreement are required to meet all appropriate automotive and equipment manufacturers warranty standards and related certifications. The Contractor(s) for the Agreement(s) must supply California Air Resources Board (CARB) verified retrofit technology. Both on-road and off-road vehicles and equipment are included and they are listed in Attachment D, Equipment and Vehicle Listing. Maintenance and cleaning of the retrofit devices may be negotiated by an Entity at a future date after installation.

The successful Proposer will be expected to enter into a not-to-exceed Agreement with the City (reference Exhibit A).

2. FUELS CURRENTLY USED IN VEHICLES AND EQUIPMENT Currently, the City primarily uses Ultra-Low Sulfur Diesel (ULSD) in vehicles and equipment which will receive Diesel Emission Retrofit Devices. When recommending which Diesel Emission Device to be installed and in testing and monitoring the Contractor shall consider this information.

3. PROPOSAL INVITATION This document constitutes an invitation for sealed competitive proposals. This RFP is for use by the City for the types of Diesel Emission Retrofit Devices and Installation identified herein in accordance with the requirements and provisions herein.

4 ESTIMATED MAGNITUDE OF AGREEMENT(S) Currently, approximately $ 160,000 is available to the City to fund awarded orders under a Agreement(s) for the work covered under this RFP.

SECTION B TECHNICAL SPECIFICATIONS AND WORK REQUIREMENTS 1. WORK PERFORMED BY THE CITY The City shall make available sufficient hours of staff personnel time required to meet with the Contractor to provide information and resolve issues. The Public Works Department has assigned a staff person who will oversee administration of the Agreement and provide support as needed.

The City shall be responsible for implementing and maintaining usual, customary and appropriate internal accounting procedures and controls, internal controls and other appropriate procedures and controls. These controls will include information technology, proprietary information, and trade secret safeguards if appropriate.

2. TECHNICAL REQUIREMENTS and DELIVERABLES

Deliverables shall be the specific Diesel Emission Retrofit Devices and Installation as ordered and delivered under the Agreement.

2.1. OVERVIEW Diesel retrofit technologies to be utilized are classified as Category III in this RFP and is specifically designed to reduce PM, CO, and HC emissions from diesel engines. The products that must be offered under a Agreement are required to meet all appropriate automotive and equipment manufacturers warranty standards and related certifications. Contractors must supply a California Air Resources Board (CARB) verified retrofit technology. The equipment to be offered and installed under this RFP is:

• Category III: Diesel Particulate Filter (DPF) – A DPF is an exhaust after-treatment device that uses wall-flow technology to prevent PM in the exhaust stream from being released to the atmosphere. Particles are trapped in the filter and then oxidized by high temperatures and/or a catalytic coating on the filter. DPFs can reduce PM, CO, and HC emissions by 60 to 90 percent. Products must reduce particulate emissions by at least 60 percent; All necessary mounting hardware, brackets, back-pressure monitors, warning devices, piping and insulation and

other parts necessary for an installation to meet the emission control manufacturer’s warranty and all requirements of CARB verification are included in this category and all such items shall be rust and corrosion resistant; and

The Contractor must commit to perform appropriate engineering analysis, including exhaust temperature datalogging if necessary, prior to installation to ensure that the application meets all verification requirements as described in either the CARB Executive Order.

2.2 PRODUCTS AND TECHNOLOGIES

• Products must be verified under the California Air Resources Board (CARB) Diesel Emission Control Strategies Verification http://www.arb.ca.gov/diesel/verdev/vt/cvt.htm for the specified application. Proposers must include in their Proposal such verifications for each product and/or application being offered. It is desirable that such products not require the aid of secondary technologies or products.

• Proposers must provide only current production equipment. No used equipment or discontinued lines are acceptable. Proposers are cautioned that surplus, seconds, factory rejects, closeout or distressed items are not acceptable and, if furnished, will be rejected. The delivery of substandard items may result in a cancellation of the Agreement in whole or in part with Contractor.

2.3 INSTALLATION AND MAINTENANCE • Contractors must supply and install products. • It is desirable that Contractors install products as close to a vehicle’s engine as feasible. • It is desirable that Contractors offer products (e.g., replacement filters) and services (e.g., DPF cleaning) associated with

the proper maintenance of the installed retrofit devices. • Installation of retrofit equipment will be accomplished so as to minimize any modification to original equipment. • Installation will be accomplished with as little interruption as possible to normal vehicle operations. • Contractors will recycle scrap metal generated as a result of the installation.

2.4. TRAINING AND INSTRUCTION • Contractors must provide to the vehicle owner hard copy written recommendations from the emissions control system

manufacturer on the care and maintenance of the technology provided, as well as the manufacturer’s written labor and materials warranty for services.

• Contractors must provide copies of the CARB verification letters for the installed retrofit technologies. • Contractors must provide the vehicle owner with materials describing maintenance procedures and schedules,

operations procedures, and any updated information about the retrofit devices. • Contractors must be available to respond within a maximum of a 24-hour period should the owner have questions or

concerns regarding the performance of the installed retrofit equipment. 2.5. LABELING • Contractors must place a label for each installed retrofit device in a conspicuous location in the engine compartment

whereby it can be easily read and understood. The label should clearly indicate that the vehicle has been retrofitted with a tailpipe device (Category I, II, or III) and/or an engine filter device (Category IV), and shall state if it is DOC, FTF, DPF, and/or CCV.

2.6 DOCUMENTATION AND REPORTING • Contractors shall provide quarterly reports of retrofit device installations to include: number and type of devices installed,

Entity, vehicle and engine type, date of installation, and cost. Reports shall be submitted electronically and Microsoft Excel is the preferred format.

• Contractor shall email an end-of-project notification to the fleet representatives confirming that all requirements/tasks are complete.

• Contractor shall provide a copy of all electronic or hard copy correspondence between the Contractor and the fleet representatives regarding this project for the project life, and shall provide a copy of any correspondence upon request.

2.7 INSTALLATION LOCATION

It will be the Contractor’s option to determine where installation of the diesel emission retrofit devices are to be installed. If the Contractor prefers to install at the Entity’s location the Entity will make the vehicles or equipment available in an outdoor lot; no power or any other utilities will be provided. No inside shop facilities will be provided. If the Contractor prefers to pick-up the vehicles or equipment and perform the work at their facility, the Contractor is responsible and liable for any damage to the vehicles or equipment in their possession from time of pick-up to return delivery to the Entity’s facility. Prices proposed and incorporated into a Agreement will be inclusive of any transportation costs to the Contractor.

3. PRODUCT DESCRIPTION AND PERFORMANCE SPECIFICATIONS At a minimum, the products supplied must perform at the level specified in the CARB verification letter for the lifetime of the warranty. In addition, at a minimum, installation shall be performed in accordance with the following:

• Component design and materials shall be compatible with conditions and substances normally encountered in an engine compartment of a heavy-duty diesel engine.

• Components shall be securely installed to prevent dislodging. • Hoses and wires shall be securely mounted and routed to prevent interference with other vehicle components or from

being dislocated. • All piping, tubing and ducting connections shall be clamped to be secure and leak free. Clamps shall not be torqued

excessively such as to cause damage to the interfacing components. 4. SPECIFIC TASK REQUIREMENTS TO BE PERFORMED UNDER AGREEMENT

The following tasks describe the flow of testing, installation, and verification to be performed under each Agreement order; the costs for these tasks shall be included in the prices on the Pricing Form:

• Task I (Pre-Installation Testing): The Contractor will work with the Entity to visually inspect the equipment and vehicles listed in Attachment D, Equipment and Vehicle Listing in order to identify the best candidates for retrofit devices. The Contractor will log the exhaust gas temperatures of a representative sampling of vehicles to determine appropriate candidates for retrofit with retrofit devices. All temperature logging must be conducted for a minimum of three (3) working days. The Contractor will provide all equipment necessary to log the exhaust gas temperatures, install said equipment before beginning the logging period, and remove said equipment following the end of the logging period. The Contractor will install the thermocouple at the exhaust inlet to the muffler to measure the temperature of gases entering the muffler. The Contractor will set up the on-board data logger to record the temperature at least every twenty (20) seconds. The Contractor will analyze the results of the data logging and recommend whether it is appropriate to proceed with installing the best available retrofit devices on specific vehicles or equipment based on the results of the representative temperature profiles. The Contractor will provide the Entity with a report that contains a copy of the temperature monitoring data and the Contractor’s analysis of that temperature profile data. The Contractor shall include standard times in the proposal for completing this task.

• Task II: The Entity will determine which vehicles or equipment are appropriate candidates for retrofitting with retrofit devices. The Contractor will identify the best available retrofit kits for those determined vehicles and equipment and develop an installation schedule. The retrofit devices shall be currently verified by the California Air Resources Board. The Contractor shall provide documentation showing that each retrofit device selected has been verified by CARB. The Contractor shall ensure that installation of the retrofit device will not void any existing warranty on any retrofitted vehicle.

• Task III: The Contractor shall provide all retrofit devices and necessary mounting hardware required to install the retrofit devices. The retrofit devices will be attached using lap clamps and the joints will be sealed with high-temperature sealant. The Contractor shall minimize the number of clamps and adapters by replacing the vehicle's existing muffler with the retrofit devices. The retrofit devices shall be installed by the Contractor at the Contractor’s facility unless otherwise accepted by the City.

• Following installation of the retrofit devices, the Contractor shall verify that the installation complies with the requirements of the North American Standard Inspection Procedure – Level I published by the Commercial Vehicle Safety Alliance with respect to leaks from the specific portion of the exhaust system altered by the Contractor’s installation of the retrofit devices. Specifically, for each installation, the Contractor shall check the portion of the exhaust system altered by the retrofit device and backpressure monitor installation for leaks and damage with the engine at idle and the exhaust system unrestricted. The Contractor shall repair any exhaust leak in that altered portion of the exhaust system at a seam or joint that can be felt with the bare hand six inches (6") from the point of the leak, in any direction, with the engine at idle, and without restriction to the exhaust system. The Contractor will complete installations and exhaust system leak checks within standard times as referenced in their proposal or as otherwise negotiate between the Entity and the Contractor.

• Contractor is responsible for pick-up of the vehicle or equipment and transportation to and from the Contractor’s facility, including return of the vehicle or equipment to the Entity’s facility or other mutually agreed upon location. The prices provided on the Pricing Form assume the vehicle or equipment will be located within the City of El Centro.

5. PRODUCT WARRANTY AND REQUIRED CERTIFICATION Proposers must agree to provide at least the minimum CARB full replacement warranty on the emission control system. All products supplied under the Agreement must not void any part of the engine warranty and carry the emission control manufacturer’s warranty for performance, service, and vehicle liability. Products must comply with all safety requirements of the original equipment manufacturer. Contractors will be responsible to correct any damage to engines or equipment that is determined to result from the installation and/or use of their product(s) at no cost to the Entity. Such action will be conditioned on the Entity properly maintaining the vehicle or equipment, and making repairs in a timely manner. All products and services offered under the Agreement must comply with the statements and/or policies issued by the EPA and CARB.

6. PERIOD OF PERFORMANCE

It is anticipated that the Agreement(s) will be available immediately. Contractor must procure the completion of the contract within 60 days of order by the City.

7. INSURANCE – PROOF OF COVERAGE

Work shall not commence until all insurance requirements have been met and certificates thereof have been filed with the Purchasing Agent or the Auditor.

Insurance – Public Liability and Property Damage The contractor shall provide and maintain public liability and property damage insurance in the minimum amount of $1,000,000 per occurrence that protects the contractor and the City and its officers, agents and employees from any and all claims, demands, actions and suits for damage to property or personal injury arising from the contractor’s work under this contract

The insurance shall be without prejudice to coverage otherwise existing, and shall name as additional insureds the City and its officers, agents and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each additional insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer’s liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured.

The coverage shall apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the City Auditor. If the insurance is canceled or terminated prior to completion of the contract, the contractor shall provide a new policy with the same terms. The contractor agrees to maintain continuous, uninterrupted coverage for the duration of the contract.

Automobile Liability Automobile liability insurance with a combined single limit of not less than $1,000,000 each occurrence for bodily injury and property damage. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by the contractor. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by the Contractor.

Workers’ Compensation Prior to the performance of any work under a contract awarded by the City, the contractor shall comply with the workers’ compensation law, ORS Chapter 656, as it may be amended, and if workers’ compensation insurance is required by ORS Chapter 656, the contractor shall maintain coverage for all subject workers as defined by ORS Chapter 656 and shall maintain a current, valid certificate of workers’ compensation insurance on file with the City Auditor for the entire period during which work is performed under the contract.

8. WAGE RATE REQUIREMENTS All laborers and mechanics employed by the Contractor and subcontractors shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Department of Labor (DOL) in accordance with subchapter IV of chapter 31 of title 40, United States Code. Subcontracts must include a term and condition requiring compliance with this provision as well as other lower tiered transactions. The Contractor and subcontractors are required to obtain wage determinations from the DOL. The Contractor and subcontractors shall pay the highest of State or Federal wages for the type of work performed. Certified payrolls will be required upon submission of an invoice to the City.

SECTION C ATTACHMENTS 1. Attachment A – Representations, Certifications, and Acknowledgements

The proposer shall complete these forms and submit them with their proposal.

2. Attachment B – Non-Collusion Affidavit

The proposer shall complete this form and submit it with their proposal. Note that the form must be notarized.

3. Attachment C – Pricing Proposal Requirements

The proposer shall submit their price proposal in accordance with these requirements.

4. Attachment D – Equipment and Vehicle Listing, City

This is the listing of potential candidate vehicles and equipment which may be included in orders for installation of diesel emission retrofit devices.

5. Exhibit A – SAMPLE AGREEMENT (City of El Centro) The sample Agreement, shown as Exhibit A is the City’s standard Agreement which will be the contractual instrument executed as a result of the selection process. Any requested deviations from this Agreement shall be clearly identified in the proposal.

PART II PROPOSAL DEVELOPMENT SECTION A PROPOSAL PREPARATION

1. MANDATORY PRE-PROPOSAL MEETING & SITE VISIT There will be a mandatory pre-proposal conference and site visit for this project on Wednesday, June 26, 2013, starting at 9:00 a.m. at City’s Public Works Yard located at 307 W. Brighton Avenue. This is a mandatory meeting therefore anyone wishing to submit a proposal for this RFP must attend the pre-proposal conference and site visit. Following the initial meeting prospective proposers will visit the City facilities where representative vehicles and equipment will be available for inspection. Prospective proposers are responsible for their own transportation to both sites. An additional date for further investigations at the City facilities may be made based on requests from prospective proposers. 2. INVESTIGATION The proposer shall make all investigations necessary in order to be informed of the items to be furnished

3. QUESTIONS OR CLARIFICATIONS It shall be the respondent’s responsibility to ask questions, request changes or clarifications, or otherwise advise the City of El Centro if any language, specifications or requirements of an RFP appear to be ambiguous, contradictory, or appear to inadvertently restrict or limit the requirements stated in the RFP to a single source.

Every attempt shall be made to ensure that the proposer receives an adequate and prompt response. However, in order to maintain a fair and equitable RFP process, all respondents will be advised, via the issuance of an addendum to the RFP, of any relevant or pertinent information related to the procurement. Questions and requests for clarification regarding this Request for Proposal must be directed in writing, via email or fax, to the person listed below at least ten (10) calendar days prior to the proposal due date. Therefore, respondents are advised that any questions received less than ten (10) calendar days prior to the RFP due date may not be answered.

Hector Guzman 307 W. Brighton Avenue El Centro CA 92243 Phone: (760) 335.3590 hguzman@cityofelcentro.org Fax : (760) 337.3856

If, in the opinion of the Purchasing Agent, additional information or interpretation is needed by the respondents, an addendum will be issued. Any addendum or addenda issued by the Purchasing Agent, that may include changes, corrections, additions, interpretations, clarifications, or information, and issued seventy-two (72) hours or more before the scheduled due date and time for submitting the proposal, Saturday, Sunday, and legal holidays not included, shall be binding upon the respondent. City shall supply copies of such addenda to all respondents who have obtained copies and are on the plan holder list of the RFP documents for the purpose of responding thereon, but failure of the respondent to receive or obtain such addenda shall not excuse the respondent from compliance therewith if awarded the Agreement.

4. AGREEMENT REVIEW The Agreement/Contract as attached hereto contains the terms and conditions that will govern between the City and the Contractor. The City is not inclined to negotiate any portion of the Agreement/Contract, however, if a proposer believes any of the terms and conditions contained in the Agreement/Contract are unnecessarily restrictive, limit competition, or would like to request that specific terms and conditions be considered for negotiation, they must submit a written request for negotiation to the City at least seven (7) working days prior to the proposal due date.

The request shall identify the specific provision(s) the proposer would like to negotiate, an explanation of why the proposer believes the provision should be a negotiable provision, and the suggested revised language. Requests that are not submitted in this format may not be considered. Requests that state the entire Agreement/Contract be negotiated will not be considered. If the City decides that a Agreement/Contract term can be changed, or is willing to consider negotiation of a term, an addendum will be issued. If no addendum is issued, the City will not consider negotiation of their standard Agreement/Contract terms.

THIS WILL BE THE OFFEROR’S ONLY OPPORTUNITY TO TAKE EXCEPTION TO ANY OF THE TERMS AND CONDITIONS CONTAINED WITHIN THE AGREEMENT/CONTRACT AND TO REQUEST THE NEGOTIATION OF PROVISIONS CONTAINED THEREIN. ANY PROPOSAL THAT TAKES EXCEPTION TO THE TERMS AND CONDITIONS OF THE SAMPLE AGREEMENT/CONTRACT WHICH HAVE NOT BEEN IDENTIFIED BY ADDENDUM AS SUBJECT TO NEGOTIATION OR WHICH MAKES THE PROPOSAL CONTINGENT UPON ACCEPTANCE OR NEGOTIATION OF OTHER TERMS AND CONDITIONS MAY BE DEEMED NON-RESPONSIVE AND THE PROPOSAL MAY BE REJECTED.

5. ORAL INSTRUCTIONS Oral instructions or information concerning the RFP documents or the project given out by officers, employees, or agents of the City to prospective respondents shall not bind the City. Any changes or revisions to the specifications shall only be binding if issued in writing by the City by addendum. The City reserves the right to officially amend or cancel an RFP after issuance.

6. PERMITS AND LICENSES The successful respondent shall include in their proposal the cost to obtain or maintain all permits, certifications and licenses that may be required to perform under the Agreement.

7. CHANGES TO THIS RFP The City reserves the right to modify, revise or cancel this RFP. Receipt and evaluation of proposals or the completion of interviews do not obligate the City to award a Agreement.

SECTION B PROPOSAL SUBMISSION

1. PROPOSALS DUE By submitting a proposal, the respondent agrees to provide the types of items specified within the RFP, at the times and prices indicated, pursuant to all requirements and specifications as contained therein.

Sealed proposals must be received in this office no later than the date and time shown on the cover of this solicitation. The outside of the envelope shall plainly identify the subject of the proposal, the RFP number and the name and address of the proposer. Responses received after time or date listed herein shall not be considered. Proposals received after the scheduled closing time for filing will be returned to the proposer unopened.

2. PROPOSAL For purposes of review and in the interest of the City’s Sustainable Paper Use Policy and sustainable business practices in general, the City encourages the use of submittal materials (i.e. paper, dividers, binders, brochures, etc.) that contain post-consumer recycled content and are readily recyclable. The City discourages the use of materials that cannot be readily recycled such as PVC (vinyl) binders, spiral bindings, and plastic or glossy covers or dividers. Firms are encouraged to print/copy on both sides of a single sheet of paper wherever applicable (if sheets are printed on both sides, it is considered to be two pages). Color is acceptable, but content should not be lost by black-and-white printing or copying.

All submittals will be evaluated on the completeness and quality of the content. Only those firms providing complete information as required will be considered for evaluation. The ability to follow these instructions demonstrates attention to detail.

3. PROPOSAL SUBMISSION For purposes of this proposal submission, one (1) complete original printed paper copy of the proposal shall be submitted along with two (2) exact paper copies. The entire proposal shall be received at the place and on or before the time and date specified on the first page of the RFP document.

4. CONFLICT OF INTEREST A respondent submitting a proposal thereby certifies that no officer, agent or employee of the City who has a pecuniary interest in this RFP, has participated in the Agreement negotiations on the part of the City, that the proposal is made in good faith without fraud, collusion, or connection of any kind with any other respondent of the same request for proposal, and that the respondent is competing solely in its own behalf without connection with, or obligation to, any undisclosed person or firm.

5. PROPOSAL ORGANIZATION Respondents must provide all information as requested in this RFP. Responses must follow the format outlined in this RFP. Additional materials in other formats, or pages beyond the stated page limit may not be considered. The City may reject as nonresponsive at its sole discretion any proposal or any part thereof, which is incomplete, inadequate in its response, or departs in any substantive way from the required format. Proposal responses shall be organized in the following manner:

a. Cover Letter b. Demonstrated Ability to Meet or Exceed Environmental Requirements c. Stability and Experience of Proposer d. Demonstrated Ability to Meet or Exceed Quality and Service Levels e. Attachment A f. Attachment B g. Attachment C Pricing

5.a. COVER LETTER The Cover Letter must state that by submitting a response the proposer accepts all instructions and terms and conditions of the Request for Proposals.

At a minimum, the Cover Letter must state the name of the person(s) authorized to represent the proposer in any negotiations, the name(s) of the person(s) authorized to sign any Agreement that may result, the contact person’s name, mailing or street address, phone and fax numbers and email address. A legal representative of the firm, authorized to bind the firm in contractual matters must sign the Cover Letter and the Proposal response.

5.b. STABILITY AND EXPERIENCE OF THE PROPOSER Describe the stability of your company and your company’s experience in providing diesel emission retrofit devices and installation described in this RFP, to include the following:

1 Provide a brief history of your firm and its experience in providing Diesel Emission Retrofit Devices and Installation described in this RFP, to include the types of items on both on-road vehicles as well as heavy duty construction equipment, general size of orders, and yearly volume.

2 Provide a brief list of customers for a municipality or other government subdivision, or comparable private commercial enterprise, as well as a brief description of projects for which your firm has provided Diesel Emission Retrofit Devices and Installation in the past five (5) years, which best characterizes your firm’s capabilities, work quality, and cost control. Provide a minimum of three (3) customer references including business name, address, contact name, contact telephone number, and contact E-Mail address.

3 Briefly describe your procedures for performing investigations, analysis, and making recommendation reports for candidate vehicles and equipment, as well as providing and installing emission control devices and ensuring work is performed in a timely manner including post-installation testing and inspection. Describe how you will meet mission critical installation requirements for essential equipment requiring short turn-around times.

5.c. DEMONSTRATED ABILITY TO MEET OR EXCEED QUALITY AND SERVICE LEVELS

1. Briefly describe your organization’s philosophy toward quality and customer service.

2. State and explain the value-added services your firm provides and give examples.

3. Describe how you ensure work is performed on time and at the required quality level.

4. Describe your complaint escalation procedure and how your firm has been successful in resolving complaints and warranty issues.

5. Outline the various types of diesel emission retrofit devices and installation your company has provided in the past and describe some of the challenges you have been able to overcome in specific situations.

6. Explain how you plan to meet the warranty requirements of the RFP and if you have a better warranty plan include that in your proposal

7. Provide a description of the installation process and include the estimated time required for completing such processes. (Such processes shall comply with emission control manufacturer guidelines.) If you offer maintenance and/or cleaning services for the installed emission control devices please provide a description of those services.

8. Provide a previous report you prepared which shows information such as: number and type of devices installed, vehicle and engine type, pre-installation emission levels (PM, CO, HC), post-emission levels, date of installation, and cost.

9. Provide catalog cuts or other information which shows and describes the devices you propose installing as well as written verification that each diesel emission control device offered meets CARB verification processes.

5.d. PRICING

Pricing shall be provided in the Pricing Proposal section of your proposal which meets the Pricing Proposal Requirements of Attachment C. All costs shall be included in your Pricing Proposal and these prices will be included in award of a Agreement.

5.e DIVERSITY IN EMPLOYMENT AND CONTRACTING REQUIREMENTS The City value diversity in the workforce and in the workforce of those who contract with the City and they have a significant interest in extending contracting opportunities to Minority, Women, and Disadvantage Business Enterprises (M/W/DBE) at both a prime and subcontracting level. The City is committed to ensuring that such firms receive opportunities and equal consideration to be awarded contracts and Agreements.

Contractor shall submit Disadvantaged Business Enterprise Exhibit 10-01 and Exhibit 10-02 with the proposal. Instructions are included in the Exhibits for searching and reporting DBE use with the project. 6. WITHDRAWAL, MODIFICATION OR ALTERATION OF PROPOSAL Prior to the RFP due date and time, changes may be made provided the change is initialed by the respondent or authorized agent. Also, a proposal may be withdrawn upon written request of the respondent prior to the scheduled closing time for accepting proposals. Negligence on the part of the respondent in preparing their proposal confers no right to withdraw their response after the scheduled closing time for filing proposals.

As a result of any of these actions, if the intent of the respondent is not clearly identifiable, the interpretation most advantageous to the City will prevail.

ATTACHMENT A Representations, Certificates, and Acknowledgements.

EXHIBIT 10-F CERTIFICATION OF CONSULTANT, COMMISSIONS & FEES I HEREBY CERTIFY that I am the , and duly authorized representative of the firm of , whose address is , and that, except as hereby expressly stated, neither I nor the above firm that I represent have:

(a) employed or retained for a commission, percentage, brokerage, contingent fee, or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this contract; nor (b) agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the contract; nor (c) paid, or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant) any fee, contribution, donation, or consideration of any kind, for or in connection with, procuring or carrying out this contract.

I acknowledge that this Certificate is to be made available to the California Department of Transportation (Caltrans) in connection with this contract involving participation of federal-aid highway funds, and is subject to applicable state and federal laws, both criminal and civil.

(Date) (Signature)

EXHIBIT 10-I NOTICE TO PROPOSERS DBE INFORMATION

The Agency has not established a goal for this Contract. However, proposers are encouraged to obtain DBE participation for this contract.

1. TERMS AS USED IN THIS DOCUMENT

• The term “Disadvantaged Business Enterprise” or “DBE” means a for-profit small business concern owned and controlled by a socially and economically disadvantaged person(s) as defined in Title 49, Code of Federal Regulations (CFR), Part 26.5.

• The term “Agreement” also means “Contract.”

• Agency also means the local entity entering into this contract with the Contractor or Consultant.

• The term “Small Business” or “SB” is as defined in 49 CFR 26.65.

2. AUTHORITY AND RESPONSIBILITY

A. DBEs and other small businesses are strongly encouraged to participate in the performance of Contracts financed in whole or in part with federal funds (See 49 CFR 26, “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”). The Consultant must ensure that DBEs and other small businesses have the opportunity to participate in the performance of the work that is the subject of this solicitation and should take all necessary and reasonable steps for this assurance. The proposer must not discriminate on the basis of race, color, national origin, or sex in the award and performance of subcontracts.

B. Proposers are encouraged to use services offered by financial institutions owned and controlled by DBEs.

3. SUBMISSION OF DBE INFORMATION

If there is a DBE goal on the contract, Exhibit 10-O1 Consultant Proposal DBE Commitment must be included in the Request for Proposal. In order for a proposer to be considered responsible and responsive, the proposer must make good faith efforts to meet the goal established for the contract. If the goal is not met, the proposer must document adequate good faith efforts. All DBE participation will be counted towards the contract goal; therefore, all DBE participation shall be collected and reported.

Exhibit 10-O2 Consultant Contract DBE Information must be included with the Request for Proposal. Even if no DBE participation will be reported, the successful proposer must execute and return the form.

4. DBE PARTICIPATION GENERAL INFORMATION

It is the proposer’s responsibility to be fully informed regarding the requirements of 49 CFR, Part 26, and the Department’s DBE program developed pursuant to the regulations. Particular attention is directed to the following:

A. A DBE must be a small business firm defined pursuant to 13 CFR 121 and be certified through the California Unified Certification Program (CUCP).

B. A certified DBE may participate as a prime consultant, subconsultant, joint venture partner, as a vendor of material or supplies, or as a trucking company.

C. A DBE proposer not proposing as a joint venture with a non-DBE, will be required to document one or a combination of the following:

1. The proposer is a DBE and will meet the goal by performing work with its own forces.

2. The proposer will meet the goal through work performed by DBE subconsultants, suppliers or trucking companies.

3. The proposer, prior to proposing, made adequate good faith efforts to meet the goal.

D. A DBE joint venture partner must be responsible for specific contract items of work or clearly defined portions thereof. Responsibility means actually performing, managing, and supervising the work with its own forces. The DBE joint venture partner must share in the capital contribution, control, management, risks and profits of the joint venture commensurate with its ownership interest.

E. A DBE must perform a commercially useful function pursuant to 49 CFR 26.55, that is, a DBE firm must be responsible for the execution of a distinct element of the work and must carry out its responsibility by actually performing, managing and supervising the work.

F. The proposer shall list only one subconsultant for each portion of work as defined in their proposal and all DBE subconsultants should be listed in the bid/cost proposal list of subconsultants.

G. A prime consultant who is a certified DBE is eligible to claim all of the work in the Contract toward the DBE participation except that portion of the work to be performed by non-DBE subconsultants.

5. RESOURCES

A. The CUCP database includes the certified DBEs from all certifying agencies participating in the CUCP. If you believe a firm is certified that cannot be located on the database, please contact the Caltrans Office of Certification toll free number 1-866-810-6346 for assistance.

B. Access the CUCP database from the Department of Transportation, Office of Business and Economic Opportunity Web site at: http://www.dot.ca.gov/hq/bep/.

1. Click on the link in the left menu titled Disadvantaged Business Enterprise;

2. Click on Search for a DBE Firm link;

3. Click on Access to the DBE Query Form located on the first line in the center of the page.

Searches can be performed by one or more criteria. Follow instructions on the screen.

6. MATERIALS OR SUPPLIES PURCHASED FROM DBES COUNT TOWARDS THE DBE GOAL UNDER THE FOLLOWING CONDITIONS:

A. If the materials or supplies are obtained from a DBE manufacturer, count 100 percent of the cost of the materials or supplies. A DBE manufacturer is a firm that operates or maintains a factory, or establishment that produces on the premises the materials, supplies, articles, or equipment required under the Contract and of the general character described by the specifications.

B. If the materials or supplies purchased from a DBE regular dealer, count 60 percent of the cost of the materials or supplies. A DBE regular dealer is a firm that owns, operates or maintains a store, warehouse, or other establishment in which the materials, supplies, articles or equipment of the general character described by the specifications and required under the Contract are bought, kept in stock, and regularly sold or leased to the public in the usual course of business. To be a DBE regular dealer, the firm must be an established, regular business that engages, as its principal business and under its own name, in the purchase and sale or lease of the products in question. A person may be a DBE regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone or asphalt without owning, operating or maintaining a place of business provided in this section.

C. If the person both owns and operates distribution equipment for the products, any supplementing of regular dealers’ own distribution equipment shall be, by a long-term lease agreement and not an ad hoc or Agreement-by-Agreement basis. Packagers, brokers, manufacturers’ representatives, or other persons who arrange or expedite transactions are not DBE regular dealers within the meaning of this section.

D. Materials or supplies purchased from a DBE, which is neither a manufacturer nor a regular dealer, will be limited to the entire amount of fees or commissions charged for assistance in the procurement of the materials and supplies, or fees or transportation charges for the delivery of materials or supplies required on the job site, provided the fees are reasonable and not excessive as compared with fees charged for similar services.

EXHIBIT 10-J STANDARD CONTRACT PROVISIONS FOR SUBCONSULTANT/DBE PARTICIPATION

1. Subconsultants

A. Nothing contained in this Contract or otherwise, shall create any contractual relation between the Agency and any subconsultants, and no subcontract shall relieve the Consultant of his/her responsibilities and obligations hereunder. The Consultant agrees to be as fully responsible to the Agency for the acts and omissions of its subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the Consultant. The Consultant's obligation to pay its subconsultants is an independent obligation from the Agency's obligation to make payments to the Consultant.

B. Any subcontract in excess of $25,000, entered into as a result of this Contract, shall contain all the provisions stipulated in this Contract to be applicable to subconsultants.

C. Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to the Consultant by the Agency.

D. Any substitution of subconsultants must be approved in writing by the Agency’s Contract Administrator in advance of assigning work to a substitute subconsultant.

2. Disadvantaged Business Enterprise (DBE) Participation

A. This Contract is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. Proposers who obtain DBE participation on this contract will assist Caltrans in meeting its federally mandated statewide overall DBE goal.

B. If the contract has a DBE goal, the Consultant must meet the goal by committing DBE participation or document a good faith effort to meet the goal. If a DBE subconsultant is unable to perform, the Consultant must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met. A DBE is a firm meeting the definition of a DBE as specified in 49 CFR.

C. DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged to participate in the performance of contracts financed in whole or in part with federal funds. The Consultant or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Contract. The Consultant shall carry out applicable requirements of 49 CFR, Part 26 in the award and administration of US DOT- assisted agreements. Failure by the Consultant to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy as the local agency deems appropriate.

D. Any subcontract entered into as a result of this Contract shall contain all of the provisions of this section.

E. A DBE may be terminated only with prior written approval from the local agency and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting local agency consent for the termination, the prime consultant must meet the procedural requirements specified in 49 CFR 26.53(f).

3. Performance of DBE Consultant and other DBE Subconsultants/Suppliers

A. A DBE performs a commercially useful function when it is responsible for execution of the work of the Contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible with respect to materials and supplies used on the Contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially useful function, evaluate the amount of work subcontracted, industry practices; whether the amount the firm is to be paid under the Contract is commensurate with the work it is actually performing; and other relevant factors.

B. A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, Contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.

C. If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its Contract with its own work force, or the DBE subcontracts a greater portion of the work of the Contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a commercially useful function.

4. Prompt Payment of Funds Withheld to Subconsultants

A. Any subcontract entered into as a result of this Contract shall contain all of the provisions of this section.

(Local agency to include either B, C, or D below; delete the other two.)

B. No retainage will be withheld by the Agency from progress payments due the prime Consultant. Retainage by the prime Consultant or subconsultants is prohibited, and no retainage will be held by the prime Consultant from progress due subconsultants. Any violation of this provision shall subject the violating prime Consultant or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime Consultant or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime Consultants and subconsultants.

C. No retainage will be held by the Agency from progress payments due the prime Consultant. Any retainage held by the prime Consultant or subconsultants from progress payments due subconsultants shall be promptly paid in full to subconsultants within 30 days after the subconsultant’s work is satisfactorily completed. Federal law (49 CFR26.29) requires that any delay or postponement of payment over the 30 days may take place only for good cause and with the Agency’s prior written approval. Any violation of this provision shall subject the violating prime Consultant or subconsultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime Consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime consultant, deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime consultant and subconsultants.

D. The Agency shall hold retainage from the prime consultant and shall make prompt and regular incremental acceptances of portions, as determined by the Agency, of the contract work, and pay retainage to the prime consultant based on these acceptances. The prime consultant, or subconsultant, shall return all monies withheld in retention from a subconsultant within 30 days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the agency. Federal law (49 CFR26.29) requires that any delay or postponement of payment over 30 days may take place only for good cause and with the agency’s prior written approval. Any violation of this provision shall subject the violating prime consultant or subconsultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the prime consultant or subconsultant in the event of a dispute involving late payment or nonpayment by the prime Consultant, deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE prime consultant and subconsultants.

5. DBE Records

A. The Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.

B. Upon completion of the Contract, a summary of these records shall be prepared and submitted on the form entitled, “Final Report-Utilization of Disadvantaged Business Enterprise (DBE), First-Tier Subconsultants,” CEM-2402F (Exhibit 17-F, Chapter 17, of the LAPM), certified correct by the Consultant or the Consultant’s authorized representative and shall be furnished to the Contract Administrator with the final invoice. Failure to provide the summary of DBE payments with the final invoice will result in 25 percent of the dollar value of the invoice being withheld from payment until the form is submitted. The amount will be returned to the Consultant when a satisfactory “Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subconsultants” is submitted to the Contract Administrator.

6. DBE Certification and Decertification Status

If a DBE subconsultant is decertified during the life of the Contract, the decertified subconsultant shall notify the Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the Contract, the subconsultant shall notify the Consultant in writing with the date of certification. Any changes should be reported to the Agency’s Contract Administrator within 30 days.

EXHIBIT 10-O1 CONSULTANT PROPOSAL DBE COMMITMENT (Inclusive of all DBEs listed at bid proposal. Refer to instructions on the reverse side of this form)

Consultant to Complete this Section

1. Local Agency Name: ________________________________________________________________________________________ 2. Project Location: ___________________________________________________________________________________________ 3. Project Description: _________________________________________________________________________________________ 4. Consultant Name: __________________________________________________________________________________________ 5. Contract DBE Goal %: ________________

DBE Commitment Information 6. Description of Services to be Provided 7. DBE Firm

Contact Information 8. DBE Cert.

Number 9. DBE %

Local Agency to Complete this Section 16. Local Agency Contract Number: ________________________________________________

17. Federal-aid Project Number: ___________________________________________________

18. Proposed Contract Execution Date: ________________________

Local Agency certifies that all DBE certifications are valid and the information on this form is complete and accurate: _____________________________________________________________________________ 19. Local Agency Representative Name (Print)

___________________________________________________ ________________________

20. Local Agency Representative Signature 21. Date

___________________________________________________ ________________________ 22. Local Agency Representative Title 23. (Area Code) Tel. No.

10. Total % Claimed

___________ %

________________________________

11. Preparer’s Signature

________________________________ 12. Preparer’s Name (Print)

________________________________ 13. Preparer’s Title

____________ ___________________ 14. Date 15. (Area Code) Tel. No.

Distribution: (1) Original – Consultant submits to local agency with proposal (2) Copy – Local Agency files

INSTRUCTIONS - CONSULTANT PROPOSAL DBE COMMITMENT

Consultant Section

The Consultant shall: 1. Local Agency Name – Enter the name of the local or regional agency that is funding the contract. 2. Project Location - Enter the project location as it appears on the project advertisement. 3. Project Description - Enter the project description as it appears on the project advertisement (Bridge Rehab, Seismic Rehab,

Overlay, Widening, etc.). 4. Consultant Name - Enter the consultant’s firm name. 5. Contract DBE Goal % - Enter the contract DBE goal percentage, as it was reported on the Exhibit 10-I Notice to Proposers DBE

Information form. See LAPM Chapter 10. 6. Description of Services to be Provided - Enter item of work description of services to be provided. Indicate all work to be

performed by DBEs including work performed by the prime consultant’s own forces, if the prime is a DBE. If 100% of the item is not to be performed or furnished by the DBE, describe the exact portion to be performed or furnished by the DBE. See LAPM Chapter 9 to determine how to count the participation of DBE firms.

7. DBE Firm Contact Information - Enter the name and telephone number of all DBE subcontracted consultants. Also, enter the prime consultant’s name and telephone number, if the prime is a DBE.

8. DBE Cert. Number - Enter the DBEs Certification Identification Number. All DBEs must be certified on the date bids are opened. (DBE subcontracted consultants should notify the prime consultant in writing with the date of the decertification if their status should change during the course of the contract.)

9. DBE % - Percent participation of work to be performed or service provided by a DBE. Include the prime consultant if the prime is a DBE. See LAPM Chapter 9 for how to count full/partial participation.

10. Total % Claimed – Enter the total DBE participation claimed. If the Total % Claimed is less than item “6. Contract DBE Goal”, an adequately documented Good Faith Effort (GFE) is required (see Exhibit 15-H DBE Information - Good Faith Efforts of the LAPM).

11. Preparer’s Signature – The person completing this section of the form for the consultant’s firm must sign their name. 12. Preparer’s Name (Print) – Clearly enter the name of the person signing this section of the form for the consultant. 13. Preparer’s Title - Enter the position/title of the person signing this section of the form for the consultant. 14. Date - Enter the date this section of the form is signed by the preparer. 15. (Area Code) Tel. No. - Enter the area code and telephone number of the person signing this section of the form for the

consultant.

Local Agency Section:

The Local Agency representative shall: 16. Local Agency Contract Number - Enter the Local Agency Contract Number. 17. Federal-Aid Project Number - Enter the Federal-Aid Project Number. 18. Contract Execution Date - Enter date the contract was executed and Notice to Proceed issued. See LAPM Chapter 10, page 23. 19. Local Agency Representative Name (Print) - Clearly enter the name of the person completing this section. 20. Local Agency Representative Signature - The person completing this section of the form for the Local Agency must sign their

name to certify that the information in this and the Consultant Section of this form is complete and accurate. 21. Date - Enter the date the Local Agency Representative signs the form. 22. Local Agency Representative Title - Enter the position/title of the person signing this section of the form. 23. (Area Code) Tel. No. - Enter the area code and telephone number of the Local Agency representative signing this section of the

form.

EXHIBIT 10-O2 CONSULTANT CONTRACT DBE INFORMATION (Inclusive of all DBEs listed at contract award. Refer to instructions on the reverse side of this form)

Consultant to Complete this Section

1. Local Agency Name: ________________________________________________________________________________________ 2. Project Location: ___________________________________________________________________________________________ 3. Project Description: _________________________________________________________________________________________ 4. Total Contract Award Amount: $ ______________________ 5. Consultant Name: __________________________________________________________________________________________ 6. Contract DBE Goal %: ________________ 7. Total Dollar Amount for all Subconsultants: $ ______________________ 8. Total Number of all Subconsultants: _______________

Award DBE/DBE Information 9. Description of Services to be Provided 10. DBE/DBE Firm

Contact Information 11. DBE Cert.

Number 12. DBE Dollar Amount

Local Agency to Complete this Section 20. Local Agency Contract Number: ________________________________________________ 21. Federal-aid Project Number: ___________________________________________________ 22. Contract Execution Date: ________________________

Local Agency certifies that all DBE certifications are valid and the information on this form is complete and accurate:

_____________________________________________________________________________ 23. Local Agency Representative Name (Print)

___________________________________________________ ________________________ 24. Local Agency Representative Signature 25. Date ___________________________________________________ ________________________ 26. Local Agency Representative Title 27. (Area Code) Tel. No.

13. Total Dollars Claimed

$ ___________

14. Total % Claimed

__________ %

________________________________

15. Preparer’s Signature

________________________________ 16. Preparer’s Name (Print)

________________________________ 17. Preparer’s Title

____________ ___________________ 18. Date 19. (Area Code) Tel. No.

Caltrans to Complete this Section Caltrans District Local Assistance Engineer (DLAE) certifies that this form has been reviewed for completeness:

___________________________ _______________________________ ______________ 28. DLAE Name (Print) 29. DLAE Signature 30. Date

Distribution: (1) Copy – Email a copy to the Caltrans District Local Assistance Engineer (DLAE) within 30 days of contract award. Failure to send

a copy to the DLAE within 30 days of contract award may result in delay of payment. (2) Copy – Include in award package sent to Caltrans DLAE

(3) Original – Local agency files

INSTRUCTIONS - CONSULTANT CONTRACT AWARD DBE INFORMATION

Consultant Section

The Consultant shall: 1. Local Agency Name – Enter the name of the local or regional agency that is funding the contract. 2. Project Location - Enter the project location as it appears on the project advertisement. 3. Project Description - Enter the project description as it appears on the project advertisement (Bridge Rehab, Seismic Rehab,

Overlay, Widening, etc). 4. Total Contract Award Amount - Enter the total contract award dollar amount for the prime consultant. 5. Consultant Name - Enter the consultant’s firm name. 6. Contract DBE Goal % - Enter the contract DBE goal percentage, as it was reported on the Exhibit 10-I Notice to Proposers

DBE Information form. See LAPM Chapter 10. 7. Total Dollar Amount for all Subconsultants – Enter the total dollar amount for all subcontracted consultants. SUM = (DBE’s

+ all Non-DBE’s). Do not include the prime consultant information in this count. 8. Total number of all subconsultants – Enter the total number of all subcontracted consultants. SUM = (DBE’s + all Non-

DBE’s). Do not include the prime consultant information in this count. 9. Description of Services to be Provided - Enter item of work description of services to be provided. Indicate all work to be

performed by DBEs including work performed by the prime consultant’s own forces, if the prime is a DBE. If 100% of the item is not to be performed or furnished by the DBE, describe the exact portion to be performed or furnished by the DBE. See LAPM Chapter 9 to determine how to count the participation of DBE firms.

10. DBE Firm Contact Information - Enter the name and telephone number of all DBE subcontracted consultants. Also, enter the prime consultant’s name and telephone number, if the prime is a DBE.

11. DBE Cert. Number - Enter the DBE’s Certification Identification Number. All DBEs must be certified on the date bids are opened. (DBE subcontracted consultants should notify the prime consultant in writing with the date of the decertification if their status should change during the course of the contract.)

12. DBE Dollar Amount - Enter the subcontracted dollar amount of the work to be performed or service to be provided. Include the prime consultant if the prime is a DBE, and include DBEs that are not identified as subconsultants on the Exhibit 10-O1 Consultant Proposal DBE Commitment form. See LAPM Chapter 9 for how to count full/partial participation.

13. Total Dollars Claimed – Enter the total dollar amounts for column 13. 14. Total % Claimed – Enter the total DBE participation claimed for column 13. SUM = (item “14. Total Participation Dollars

Claimed” divided by item “4. Total Contract Award Amount”). If the Total % Claimed is less than item “6. Contract DBE Goal”, an adequately documented Good Faith Effort (GFE) is required (see Exhibit 15-H DBE Information - Good Faith Efforts of the LAPM).

15. Preparer’s Signature – The person completing this section of the form for the consultant’s firm must sign their name. 16. Preparer’s Name (Print) – Clearly enter the name of the person signing this section of the form for the consultant. 17. Preparer’s Title - Enter the position/title of the person signing this section of the form for the consultant. 18. Date - Enter the date this section of the form is signed by the preparer. 19. (Area Code) Tel. No. - Enter the area code and telephone number of the person signing this section of the form for the

consultant.

Local Agency Section:

The Local Agency representative shall: 20. Local Agency Contract Number - Enter the Local Agency Contract Number. 21. Federal-Aid Project Number - Enter the Federal-Aid Project Number. 22. Contract Execution Date - Enter the date the contract was executed and Notice to Proceed issued. See LAPM Chapter 10,

page 23. 23. Local Agency Representative Name (Print) - Clearly enter the name of the person completing this section. 24. Local Agency Representative Signature - The person completing this section of the form for the Local Agency must sign

their name to certify that the information in this and the Consultant Section of this form is complete and accurate. 25. Date - Enter the date the Local Agency Representative signs the form. 26. Local Agency Representative Title - Enter the position/title of the person signing this section of the form. 27. (Area Code) Tel. No. - Enter the area code and telephone number of the Local Agency representative signing this section of

the form.

Caltrans Section:

Caltrans District Local Assistance Engineer (DLAE) shall: 28. DLAE Name (Print) – Clearly enter the name of the DLAE. 29. DLAE Signature – DLAE must sign this section of the form to certify that it has been reviewed for completeness.

Date - Enter the date that the DLAE signs this section the form.

EXHIBIT 10-P NONLOBBYING CERTIFICATION FOR FEDERAL-AID CONTRACTS

The prospective participant certifies by signing and submitting this proposal/bid to the best of his or her knowledge and belief that:

(1) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.

(2) If any funds other than federal appropriated funds have been paid or will be paid to any person

for influencing or attempting to influence an officer or employee of any federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. The prospective participant also agrees by submitting his/her proposal/bid that he/she shall require that the language of this certification be included in all lower-tier subcontracts which exceed $100,000 and that all such sub-recipients shall certify and disclose accordingly.

EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES COMPLETE THIS FORM TO DISCLOSE LOBBYING ACTIVITIES PURSUANT TO 31 U.S.C. 1352

1. Type of Federal Action: 2. Status of Federal Action: 3. Report Type:

a. contract

a. bid/offer/application

a. initial

b. grant b. initial award b. material change c. cooperative agreement c. post-award d. loan For Material Change Only: e. loan guarantee year ____ quarter _________ f. loan insurance date of last report ___________

4. Name and Address of Reporting Entity 5. If Reporting Entity in No. 4 is Subawardee, Enter Name and Address of Prime: Prime Subawardee Tier ______ , if known Congressional District, if known Congressional District, if known

6. Federal Department/Agency: 7. Federal Program Name/Description: CFDA Number, if applicable ____________________

8. Federal Action Number, if known: 9. Award Amount, if known:

10. Name and Address of Lobby Entity 11. Individuals Performing Services (including (If individual, last name, first name, MI) address if different from No. 10a) (last name, first name, MI) (attach Continuation Sheet(s) if necessary)

12. Amount of Payment (check all that apply) 14. Type of Payment (check all that apply)

$ _____________ actual planned a. retainer b. one-time fee 13. Form of Payment (check all that apply): c. commission a. cash d. contingent fee b. in-kind; specify: nature _______________ e deferred Value _____________ f. other, specify _________________________

15. Brief Description of Services Performed or to be performed and Date(s) of Service, including officer(s), employee(s), or member(s) contacted, for Payment Indicated in Item 11: (attach Continuation Sheet(s) if necessary)

16. Continuation Sheet(s) attached: Yes No

17. Information requested through this form is authorized by Title 31 U.S.C. Section 1352. This disclosure of lobbying reliance was placed by the tier above when his transaction was made or entered into. This disclosure is required pursuant to 31 U.S.C. 1352. This information will be reported to Congress semiannually and will be available for public inspection. Any person who fails to file the required disclosure shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Signature: _________________________________________ Print Name: _______________________________________ Title: _____________________________________________ Telephone No.: _____________________ Date: ___________

Authorized for Local Reproduction

Federal Use Only: Standard Form - LLL

Standard Form LLL Rev. 04-28-06

Distribution: Orig- Local Agency Project Files

INSTRUCTIONS FOR COMPLETING EXHIBIT 10-Q DISCLOSURE OF LOBBYING ACTIVITIES

This disclosure form shall be completed by the reporting entity, whether subawardee or prime federal recipient at the initiation or receipt of covered federal action or a material change to previous filing pursuant to title 31 U.S.C. Section 1352. The filing of a form is required for such payment or agreement to make payment to lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress an officer or employee of Congress or an employee of a Member of Congress in connection with a covered federal action. Attach a continuation sheet for additional information if the space on the form is inadequate. Complete all items that apply for both the initial filing and material change report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.

1. Identify the type of covered federal action for which lobbying activity is or has been secured to influence, the outcome of a covered federal action.

2. Identify the status of the covered federal action.

3. Identify the appropriate classification of this report. If this is a follow-up report caused by a material change to the information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last, previously submitted report by this reporting entity for this covered federal action.

4. Enter the full name, address, city, state, and zip code of the reporting entity. Include Congressional District if known. Check the appropriate classification of the reporting entity that designates if it is or expects to be a prime or subaward recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the first tier. Subawards include but are not limited to: subcontracts, subgrants, and contract awards under grants.

5. If the organization filing the report in Item 4 checks "Subawardee" then enter the full name, address, city, state, and zip code of the prime federal recipient. Include Congressional District, if known.

6. Enter the name of the federal agency making the award or loan commitment. Include at least one organization level below agency name, if known. For example, Department of Transportation, United States Coast Guard.

7. Enter the federal program name or description for the covered federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans and loan commitments.

8. Enter the most appropriate federal identifying number available for the federal action identification in item 1 (e.g., Request for Proposal (RFP) number, Invitation for Bid (IFB) number, grant announcement number, the contract grant. or loan award number, the application/proposal control number assigned by the federal agency). Include prefixes, e.g., "RFP-DE-90-001."

9. For a covered federal action where there has been an award or loan commitment by the Federal agency, enter the federal amount of the award/loan commitments for the prime entity identified in item 4 or 5.

10. Enter the full name, address, city, state, and zip code of the lobbying entity engaged by the reporting entity identified in Item 4 to influence the covered federal action.

11. Enter the full names of the individual(s) performing services and include full address if different from 10 (a). Enter Last Name, First Name and Middle Initial (Ml).

12. Enter the amount of compensation paid or reasonably expected to be paid by the reporting entity (Item 4) to the lobbying entity (Item 10). Indicate whether the payment has been made (actual) or will be made (planned). Check all boxes that apply. If this is a material change report, enter the cumulative amount of payment made or planned to be made.

13. Check all boxes that apply. If payment is made through an in-kind contribution, specify the nature and value of the in-kind payment.

14. Check all boxes that apply. If other, specify nature.

15. Provide a specific and detailed description of the services that the lobbyist has performed or will be expected to perform and the date(s) of any services rendered. Include all preparatory and related activity not just time spent in actual contact with federal officials. Identify the federal officer(s) or employee(s) contacted or the officer(s) employee(s) or Member(s) of Congress that were contacted.

16. Check whether or not a continuation sheet(s) is attached.

17. The certifying official shall sign and date the form, and print his/her name title and telephone number.

Public reporting burden for this collection of information is estimated to average 30-minutes per response, including time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0046), Washington, D.C. 20503. SF-LLL-Instructions Rev. 06-04

ATTACHMENT B Non-Collusion Affidavit

NONCOLLUSION AFFIDAVIT

TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID

State of California ) County of Imperial ) ss ____________________________, being first duly sworn, deposes and says that he or she is ______________________ of____________________________the party making the foregoing bid that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation, that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; and that all statements contained in the bid are true; and further, that the bidder has not directly, or indirectly, submitted his/her/its bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. Date:__________________________ _______________________________

Contractor’s Name

_______________________________ Contractor’s Signature

_______________________________ Title

END OF NONCOLLUSION AFFIDAVIT

ATTACHMENT C Pricing Proposal Requirements

Pricing Proposal Requirements

Instructions to Proposers:

In order to qualify for Agreement award, Proposers are required to comply with the following requirements: • Proposers must provide pricing for Category III for vehicles and equipment, as well as a price for Pre-

Installation Testing. • For higher volume purchases, proposers have the opportunity to offer additional discounts. These discounts

would be available when the units purchased on any one order fall within the quantity discount unit range offered by the proposer. For instance, a proposer may offer a discount if more than 10 units are purchased of a particular Category on any one order.

• Costs for Pick-up and delivery of the vehicles or equipment by the Contractor must be included in all pricing. • Prices will include the breakdown for the following two areas – 1) parts, and 2) labor and installation. Prices

offered shall be inclusive of all costs, including: the emission control device, installation, profit, overhead, transportation, related parts or installation services, etc…

• Proposers must provide pricing for installation of emission control devices for category III of equipment and vehicles based on the individual vehicle per the Bid Proposal.

• The proposer will determine and identify groupings in their Price Proposal section based on engine size for both On-Road Vehicles and Off-Road Equipment.

• Pricing proposed will be incorporated into the awarded Agreement.

CITY OF EL CENTRO PROPOSAL/BID FORM

PLACE: OFFICE OF THE CITY CLERK 1275 Main Street El Centro, California 92243 OPENING DATE: July 11th, 2013 OPENING TIME: 2:00 P.M. VEHICLES AVAILABLE AT: 320 West Orange Avenue, El Centro, California 92243 RETROFITTED DELIVERY: Delivery shall be F.O.B., City of El Centro, Maintenance Shop, 320

West Orange Avenue, El Centro, California 92243 Quantity Installed DPF* Each Total 1 1979 GMC 8000 Dump Truck, 210hp CAT 3208, Engine Group 62W40445 $__________ $_________ 1 1989 International Dump Truck, 240hp IHC Engine Group DTA 466 $__________ $_________ 1 1991GMC Top Kick Dump Truck, 250hp CAT 3116, Engine Group MCT0403FZD2 $__________ $_________ 1 1988 Ford F-700 Dump Truck, 170hp Ford 606, Engine Group HFM078EPB-DI $__________ $_________ 1 1988 International Dump Truck, 240hp IHC Engine Group DTA 466 $__________ $_________ 1 1990 Freightliner Dump Truck, 300hp Cummins LTA10 Engine Group 34629706 $__________ $_________ 1 1996 GMC Crane Truck, 250hp CAT 311 Engine Grp TCP403DZDABA $__________ $_________ 1 2000 Ford F-550 Bucket Truck, 250hp IHC 7.3 Engine Group 7.3 Powerstroke $__________ $_________ 1 2002 Ford F-450 Flat Bed, 250hp IHC 7.3 Engine Group 7.3 Powerstroke $__________ $_________ 1 2002 Ford F-650 Dump Truck, 210hp IHC 7.3 Engine Group H210A $__________ $_________

*Item includes labor, parts, materials, testing, overhead and incidentals for a complete price in compliance with the request for proposals. Total Bid Amount $___________

The undersigned offers and agrees, if this bid be accepted, that the undersigned will within _______ calendar days from the receipt of order, furnish all of the items upon which prices are quoted, at the prices set opposite each item, delivered at the designated point(s) by the method of delivery and within the time specified above and subject to the General Provisions. The undersigned agrees to comply with the requirements of the Request for Proposals titled “DIESEL EMISSION RETROFIT DEVICES & INSTALLATION REQUEST FOR PROPOSALS PROJECT NO. CML-5169(035)” dated June 2013, including the Representations, Certifications, Acknowledgements and Affidavit submitted with the proposal. COMPANY: __________________________________________

AUTHORIZED SIGNATURE: __________________________________________

PRINTED NAME: __________________________________________

TITLE: __________________________________________

STREET ADDRESS: __________________________________________

CITY, STATE, ZIP: __________________________________________

AREA CODE/TELEPHONE: __________________________________________

DATE: __________________________________________

ATTACHMENT D Equipment and Vehicle Listing

Equipment and Vehicle Listing

Fleet 1 Information:

VehicleType TargetFleetClass/Equi

pmentVehicleCou

ntEngine Make

Engine Model

Engine Model Year

Current Standard Level for PM and NOx or

NMHC+NOx Fuel Type

Amount of Fuel Used (gal/year

for all engines in this row)

Annual Miles per

vehicle (On Highway

Only)

Annual Usage

Rate Hours per engine (Nonroad

Only)

Annual Idling

Hours (per engine)

Serial and/or VIN

# of scrapped

engine and/or vehicle

On HighwayCity/County

vehicle Class 8A 1 CAT 3208 1979

Diesel (ULSD), 15 ppm 0 0 0

T48CYAV562996

On HighwayCity/County

vehicle Class 8A 1 IHC DTA 466 1989

Diesel (ULSD), 15 ppm 419 1466 0

1HTSZ6RLH231238

On HighwayCity/County

vehicle Class 8A 1 CAT 3116 1991

Diesel (ULSD), 15 ppm 363 1271 0

1GDT714478NJ50084

On HighwayCity/County

vehicle Class 6 1 FORD 606 1988

Diesel (ULSD), 15 ppm 103 361 0

1FDNT74P2HVA5831

3

On HighwayCity/County

vehicle Class 8A 1 IHC DTA 466 1989

Diesel (ULSD), 15 ppm 577 2020 0

1HTSA26R9LH231239

On HighwayCity/County

vehicle Class 6 1 CUMMINS LTA10 2002

Diesel (ULSD), 15 ppm 94 331 0

1FVN1LYBXML41231

6

On HighwayCity/County

vehicle Class 6 1 IHC 7.3 1990

Diesel (ULSD), 15 ppm 198 693 0

3FPWE655X2MA283

04

On HighwayCity/County

vehicle Class 7 1 CAT 3116 1996

Diesel (ULSD), 15 ppm 249 871 0

1GDM7H1J8TJ515731

On HighwayCity/County

vehicle Class 5 1 IHC 7.3 2000

Diesel (ULSD), 15 ppm 1449 7244 550

1FDAF57FYED95072

On HighwayCity/County

vehicle Class 5 1 IHC 7.3 2002

Diesel (ULSD), 15 ppm 2648 9268 0

1FDXF46F82EC1998

4

Current Vehicle Information

EXHIBIT A Sample Agreement

SAMPLE AGREEMENT

FOR

CONSULTANT SERVICES

FOR DESIGN AND ENGINEERING SERVICES

THE CITY OF EL CENTRO

AND

[CONSULTANT]

SAMPLE AGREEMENT BETWEEN THE CITY OF EL CENTRO AND [CONSULTANT], FOR PROFESSIONAL SERVICES

THIS AGREEMENT [Agreement] is made and entered into by the City of El Centro [City] and _______ [Consultant] for the Consultant to provide Design and Engineering Services [Consulting Services] to the City for the development of _______ more commonly referred to as the _______ [Project].

RECITALS

The City wants to retain the services of a professional firm to provide the Consulting Services. The Consultant has the expertise, experience and personnel necessary to provide the Consulting Services for the Project.

The City and the Consultant [individually, Party; collectively, Parties] want to enter into an Agreement [Agreement] whereby the City will retain the Consultant to provide, and the Consultant shall provide, the Consulting Services for the Project on a lump-sum fixed fee basis, not to exceed ______ dollars ($__).

In consideration of the above recitals and the mutual covenants and conditions set forth, herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby set forth their mutual covenants and understandings as follows:

ARTICLE I CONSULTING SERVICES

The above-listed recitals are true and correct and are hereby incorporated by reference. 1.1 Scope of Services. The scope of services will include the Consulting Services for design and engineering services.

This project is more fully described in the proposal submitted on ______, 2011, [Exhibit A]. The Consultant shall perform the Consulting Services as described in each task at the direction of the City for a maximum hourly fee as enumerated in the fee schedule [Exhibit B].

1.2 Task Administrator. The Parks and Recreation Department is the task administrator for this Agreement. The Consultant

shall provide the Consulting Services under the direction of the Director of Parks and Recreation Department or her designee [Director]. The Director will communicate with the Consultant on all matters related to the administration of this Agreement and the Consultant’s performance of the Consulting Services rendered hereunder. When this Agreement refers to communications to or with the City, those communications will be with the Director unless the Director or the Agreement specifies otherwise.

1.3 City Modification of Scope of Services. The City may, without invalidating this Agreement, order changes in any task by altering, adding to

or deducting from the Consulting Services to be performed. All such changes shall be in writing and shall be performed in accordance with the provisions of this Agreement. If any such changes cause an increase or decrease in the Consultant’s cost of, or the time required for, the performance of any of the Consulting Services, the Consultant shall so notify the City. If appropriate, an equitable adjustment to the Consultant’s compensation may be made, provided that any adjustment must be approved by the Parties in writing.

1.4 Written Authorization. Prior to performing any Consulting Services in connection with the Project, the Consultant shall

obtain from the City a written authorization to proceed. The Consultant shall advise the City in writing

immediately of any anticipated change in any task, fee schedule, 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 the Consultant from its duty to render all Consulting Services in accordance with applicable laws and accepted industry standards.

1.5 Confidentiality of Services. All Consulting Services performed by the Consultant, including but not limited to all drafts, data,

correspondence, proposals, reports, and estimates compiled or composed by the Consultant, pursuant to this Agreement, are for the sole use of the City, its agents and employees. Neither the documents nor their contents shall be released to any third party without the prior written consent of the City. This provision does not apply to information that (a) was publicly known, or otherwise known to the Consultant, at the time that it was disclosed to the Consultant by the City, (b) subsequently becomes publicly known through no act or omission by the Consultant, or (c) otherwise becomes known to the Consultant other than through disclosure by the City. Except for Subcontractors covered by Section 4.4, neither the documents nor their contents shall be released to any third party without the prior written consent of the City.

ARTICLE II DURATION OF AGREEMENT

2.1 Term of Agreement. This Agreement shall be effective on the date it is executed by the last Party to sign the Agreement,

and it shall be effective until completion of the Project.

2.2 Time of Essence.

The Parties agree that time is of the essence for each provision of this Agreement, unless otherwise specified in this Agreement.

2.3 Notification of Delay.

The Consultant shall immediately notify the City in writing of any delay in completion of the Consulting Services. The written notice shall include an explanation of the cause for, and a reasonable estimate of the length of the delay. If the delay affects a material part of the Project, the City may exercise its rights under Sections 2.5-2.9 of this Agreement.

2.4 Delay.

If delays in the performance of the Consulting Services are caused by unforeseen events beyond the control of the Parties, such delay may entitle the Consultant to a reasonable extension of time, but such delay shall not entitle the Consultant to damages or additional compensation. 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 Consultant’s work, inability to obtain materials, equipment or labor, required additional Consulting Services, or other specific reasons agreed to between the City and the Consultant; provided, however, that (a) this provision shall not apply and the Consultant shall not be entitled to an extension of time for a delay caused by the acts or omissions of the Consultant; and, (b) that a delay caused by the inability to obtain materials shall not entitle the Consultant to an extension of time unless the Consultant furnishes the City, in a timely manner, documentary proof, to the City’s satisfaction, of the inability to obtain materials.

2.5 City’s Right to Suspend for Convenience.

The City may, at its sole option and for its convenience, suspend all or any portion of the Consultant’s performance of the Consulting Services, for a reasonable period of time not to exceed six

months. In accordance with the provisions of this Agreement, the City will give written notice to the Consultant of such suspension. In the event of such a suspension, in accordance with the provisions of Article III of this Agreement, the City shall pay to the Consultant a sum equivalent to the reasonable value of the Consulting Services the Consultant has performed up to the date of suspension. Thereafter, the City may rescind such suspension by giving written notice of rescission to the Consultant. The City may then require the Consultant to resume performance of the Consulting Services in compliance with the terms and conditions of this Agreement; provided, however, that the Consultant shall be entitled to an extension of time equal to the length of the suspension, unless otherwise agreed to in writing by the Parties.

2.6 City’s Right to Terminate for Convenience.

The City may, at its sole option and for its convenience, terminate all or any portion of the Consulting Services agreed to pursuant to this Agreement by giving written notice of such termination to the Consultant. Such notice shall be delivered by certified mail with return receipt for delivery to the City. The termination of the Consulting Services shall be effective upon receipt of the notice by the Consultant. After termination of this Agreement, the Consultant shall complete any and all additional work necessary for the orderly filing of documents and closing of the Consultant’s Consulting Services under this Agreement. For services rendered in completing the work, the Consultant shall be entitled to fair and reasonable compensation for the Consulting Services performed by the Consultant before the effective date of termination. After filing of documents and completion of performance, the Consultant shall deliver to the City all drawings, plans, calculations, specifications and other documents or records related to both the Project and to the Consultant’s Consulting Services on all task(s). By accepting payment for completion, filing and delivering documents as called for in this paragraph, the Consultant discharges the City of all of the City’s payment obligations and liabilities under this Agreement.

2.7 Consultant’s Right to Terminate for Convenience.

The Consultant may, at its sole option and for its convenience, terminate all or any portion of the Consulting Services agreed to pursuant to this Agreement by giving written notice of such termination to the City. Such notice shall be delivered by certified mail with return receipt for delivery to the Consultant. The termination of the Consulting Services shall be effective upon receipt of the notice by the City. After termination of this Agreement, the Consultant shall complete any and all additional work necessary for the orderly filing of documents and closing of the Consultant’s Consulting Services under this Agreement. For services rendered in completing the work, the Consultant shall be entitled to fair and reasonable compensation for the Consulting Services performed by the Consultant before the effective date of termination. After filing of documents and completion of performance, the Consultant shall deliver to the City all drawings, plans, calculations, specifications and other documents or records related to both the Project and to the Consultant’s Consulting Services on all Task(s). By accepting payment for completion, filing and delivering documents as called for in this paragraph, the Consultant discharges the City of all of the City’s payment obligations and liabilities under this Agreement.

2.8 City’s Right to Terminate for Default.

If the Consultant fails to adequately perform any obligation required by this Agreement, the Consultant’s failure constitutes a default [Default]. If the Consultant fails to satisfactorily cure a Default within ten calendar days of receiving written notice from the City specifying the nature of the Default, the City may immediately cancel and/or terminate this Agreement, and terminate each and every right of the Consultant, and any person claiming any rights by or through the Consultant under this Agreement. The rights and remedies of the City enumerated in this Section 2.8 are cumulative and shall not limit, waive or deny any of the City’s rights under any other provision of this Agreement. Nor does this Section 2.8 otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of this Agreement or hereinafter enacted or established, that may be available to the City against the Consultant.

2.9 City’s Right to Terminate for Bankruptcy or Assignment for the Benefit of Creditors.

If the 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 the Consultant, immediately cancel and/or terminate this Agreement and terminate each and every right of the Consultant and any person claiming any rights by or through the Consultant. The rights and remedies of the City enumerated in this Section 2.9 are cumulative and shall not limit, waive or deny any of the City’s rights under any other provision of this Agreement. Nor does this Section 2.9 otherwise waive or deny any right or remedy, at law or in equity, existing as of the date of this Agreement or hereinafter enacted or established, that may be available to the City against the Consultant.

ARTICLE III COMPENSATION

3.1 General. The City shall pay the Consultant for all the Consulting Services and all expenses related to

performance under this Agreement, in an amount as set forth in the fee schedule. The Consultant shall be entitled to compensation for the Consulting Services under this Agreement, whether within the scope of work for any task, or as additional services, based on the fee schedule.

3.2 Manner of Payment. The Consultant shall bill all fees and expenses incurred in accordance with this Agreement directly

to the City on a monthly basis.

3.2.1 Payments. The Consultant shall submit one invoice per calendar month for work performed in accordance with the fee schedule. The Consultant shall include with each invoice a description of completed work. Undisputed portions of invoices to the City must be in accordance with the fee schedule and will be payable if approved, within thirty calendar days of receipt.

3.3 Additional Services. If the City requires additional Consulting Services [Additional Services] beyond the task, except for

Additional Costs as described in Section 3.4 of this Agreement, the Consultant will be paid an additional fee. Additional Services shall be in accordance with the rates provided in the fee schedule. The City and the Consultant must agree in writing upon such fee prior to the Consultant beginning the Additional Services.

3.4 Additional Costs.

Additional costs [Additional Costs] are those costs that can be reasonably determined to be related to the Consultant’s errors or omissions, and may include Consultant, City, or Subcontractor overhead, construction, materials, demolition, and related costs. The Consultant shall not be paid for the Consulting Services required due to the Consultant’s errors or omissions, and the Consultant shall be responsible for any Additional Costs associated with such errors or omissions. These Additional Costs may be deducted from monies due, or that become due, the Consultant. Whether or not there are any monies due, or becoming due, the Consultant shall reimburse the City for Additional Costs due to the Consultant’s errors or omissions.

3.5 Eighty Percent Notification.

The Consultant shall promptly notify the 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.

ARTICLE IV CONSULTANT’S OBLIGATIONS

4.1 Industry Standards. In addition to the Consultant’s covenants described in Article VI hereof, the Consultant agrees that

the Consulting Services rendered under this Agreement shall be performed in accordance with the standards customarily adhered to by an experienced and competent professional consulting firm using the degree of care and skill ordinarily exercised by reputable professionals practicing in the same field of service in the State of California. Where approval by the City, the City Manager, or other representatives of the City is required, it is understood to be general approval only and does not relieve the Consultant of responsibility for complying with all applicable laws, codes and good consulting practices.

4.2 Right to Audit.

4.2.1 Access. The City retains the right to review and audit, and the reasonable right of access to Consultant’s and all Subcontractor’s premises to review and audit the Consultant’s compliance with the provisions of this Agreement [City’s Right]. The City’s Right includes the right to inspect and photocopy same, and to retain copies, outside of the Consultant’s premises, of any and all records with appropriate safeguards, if such retention is deemed necessary by City in its sole discretion. This information shall be kept by the City in strictest confidence allowed by law.

4.2.2 Audit. The City’s Right includes the right to examine any and all books, records, documents and any other evidence of procedures and practices that the City determines are necessary to discover and verify that the Consultant is in compliance with all requirements under this Agreement.

4.2.2.1 Cost Audit. If there is a claim for additional compensation or for Additional Services, the City’s Right includes the right to examine books, records, documents, and any and all other evidence and accounting procedures and practices 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.

4.2.2.1.1 Accounting Records. The Consultant shall maintain complete and accurate records in accordance with generally accepted accounting practices in the industry. The Consultant shall make available to the City for review and audit; all Project related accounting records and documents, and any other financial data. Upon the City’s request, the Consultant shall submit exact duplicates of originals of all requested records to the City.

4.2.3 City’s Right--Binding on Subcontractors. The Consultant shall include the City’s Right as described in Section 4.2, in any and all of their subcontracts, and shall ensure that these sections are binding upon all Subcontractors.

4.3 Insurance.

Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit “C” attached to and part of this agreement.

4.4 Subcontractors.

The Consultant’s hiring of or retaining any third parties [Subcontractors] to perform services related to the Project [Subcontractor Services] is subject to prior approval by the City. The Consultant shall list on

the Subcontractors list all Subcontractors known to the Consultant at the time this Agreement is entered. If at any time after this Agreement is entered into the Consultant identifies a need for additional Subcontractor Services, the Consultant shall give written notice to the City of the need, at least forty-five days before entering into a contract for such Subcontractor Services. The Consultant’s notice shall include a justification, a description of the scope of work, and an estimate of all costs for the Subcontractor Services. The Consultant may request that the City reduce the forty-five day notice period. The City agrees to consider such requests in good faith.

4.4.1 Subcontractor Contract. All contracts entered into between the Consultant and a Subcontractor shall contain the information as described in Sections 4.6, 4.7 and, 4.10.2 as well as any other information, terms, and conditions required elsewhere in this Agreement to be included in said agreements), and shall also provide as follows:

4.4.1.1 For each design professional Subcontractor, each Subcontractor shall obtain insurance policies which shall be kept in full force and effect during any and all work on this Project and for the duration of this Agreement. Each Subcontractor shall obtain, and the Consultant shall require the Subcontractor to obtain, all policies described in Exhibit “C.”

4.4.1.2 The Consultant is obligated to pay the Subcontractor, for Consultant- and City-approved invoice amounts, out of amounts paid by the City to the Consultant, not later than fourteen working days from the Consultant’s receipt of payment from the City. Nothing in this paragraph shall be construed to impair the right of the Consultant and any Subcontractor to negotiate fair and reasonable pricing and payment provisions among themselves.

4.4.1.3 In the case of a deficiency in the performance of Subcontractor Services,

the Consultant shall notify the City in writing of any withholding of payment to the 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 the Subcontractor must take in order to receive the amount withheld. Once the Subcontractor corrects the deficiency, the Consultant shall pay the Subcontractor the amount withheld within fourteen working days of the Consultant’s receipt of the City’s next payment.

4.4.1.4 In any dispute between the Consultant and Subcontractor, the City shall not

be made a party to any judicial or administrative proceeding to resolve the dispute. The Consultant agrees to defend and indemnify the City as described in Article VI of this Agreement in any dispute between the Consultant and Subcontractor should the City be made a party to any judicial or administrative proceeding to resolve the dispute in violation of this position.

4.4.1.5 The Subcontractor is bound to the same requirements as the Consultant for

assurances to the City regarding non-discrimination covenants set forth in Article IV, Section 4.6.

4.5 Contract Activity Report. The Consultant shall submit statistical information to the City as requested in the City’s contract

activity report [Contract Activity Report]. The statistical information shall include the amount of subcontracting provided by firms during the period covered by the Contract Activity Report. With the Contract Activity Report, the Consultant shall provide an invoice from each Subcontractor listed in the report. The Consultant agrees to issue payment to each firm listed in the Report within fourteen working days of receiving payment from the City for Subcontractor Services as described in Section 4.4.1.

4.6 Non-Discrimination Requirements.

The Consultant shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, age or disability in the solicitation, selection, hiring or treatment of Subcontractors, vendors or suppliers. The Consultant shall provide equal opportunity for Subcontractors to participate in subconsulting opportunities. The Consultant understands and agrees that violation of this clause shall be considered a material breach of this Agreement and may result in contract termination, debarment, or other sanctions. This language shall be in contracts between the Consultant and any Subcontractors, vendors and suppliers.

4.7 Drug-Free Workplace.

The Consultant agrees to ensure a drug-free workplace. The Consultant shall certify to the City that it will provide a drug-free workplace by submitting a consultant certification for a drug-free workplace form.

4.7.1 Consultant’s Notice to Employees. The Consultant shall publish a statement

notifying employees that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the work place, and specifying the actions that will be taken against employees for violations of the prohibition.

4.7.2 Drug-Free Awareness Program. The Consultant shall establish a drug-free

awareness program to inform employees about all of the following:

4.7.2.1 The dangers of drug abuse in the work place.

4.7.2.2 The policy of maintaining a drug-free work place.

4.7.2.3 Available drug counseling, rehabilitation, and employee assistance programs.

4.7.2.4 The penalties that may be imposed upon employees for drug abuse violations.

4.7.3 Posting the Statement. In addition to Section 4.7.1 above, the Consultant shall post the drug-free policy in a prominent place.

4.7.4 Subcontractor’s Agreements. The Consultant further certifies that each contract

for Subcontractor Services for this Project shall contain language that binds the Subcontractor to comply with the provisions of Article IV, Section 4.7 of this Agreement. Consultants and Subcontractors shall be individually responsible for their own drug-free work place program.

4.8 Intentionally Deleted.

4.9 Product Endorsement. The Consultant acknowledges and agrees that any advertisement identifying or referring to the City

as the user of a product or service requires the prior written approval of the City. 4.10 Conflict of Interest. The 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. and 81000 et. seq. Consultant shall complete one or more statements of economic interest disclosing relevant financial interests as described on Exhibit D [Consultant’s Statement of Financial Interest] hereto which may be amended from time to time by City. Upon the City’s request, the Consultant shall submit the necessary supplementary documentation to the

City. 4.10.1 The Consultant shall 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.

4.10.2 The Consultant and its Subcontractors having subcontracts amounting to one percent

(1%) or more of the value of the Consulting Services agreed to under this Agreement are precluded from participating in design services, on behalf of the contractor, construction management, and any other construction services related in any way to the Consulting Services without the prior written consent of the City.

4.10.3 The Consultant’s personnel employed on any task shall not accept gratuities or any other favors from any Subcontractors or potential Subcontractors. In connection with any task, the Consultant shall not recommend or specify any product, supplier, or contractor with whom the Consultant has a direct or indirect financial or organizational interest or relationship that would violate conflict of interest laws, regulations, or policies.

4.10.4 If the Consultant violates any conflict of interest laws or any of these provisions in Section 4.10, the violation shall be grounds for immediate termination of this Agreement. Further, the violation subjects the Consultant to liability to the City for attorney fees and all damages sustained as a result of the violation.

4.11 Mandatory Assistance.

If a third-party dispute or litigation, or both, arises out of, or relates in any way to, the Consulting Services provided under this Agreement, upon the City’s request, the Consultant and its agents, officers, and employees agree to assist in resolving the dispute or litigation [Mandatory Assistance]. The 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.

4.12 Compensation for Mandatory Assistance.

The City will compensate the Consultant for fees incurred for providing Mandatory Assistance as Additional Services under Section 3.3. 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 the Consultant, its agents, officers or employees, the Consultant shall pay back the City. The City is then entitled to repayment of all fees paid to the Consultant, its agents, officers, and employees for Mandatory Assistance.

4.13 Attorney Fees related to Mandatory Assistance.

In providing the City with dispute or litigation assistance, the Consultant or its agents, officers and employees may incur expenses and/or costs. The Consultant agrees that any attorney fees it may incur as a result of assistance provided under Section 4.11 are not reimbursable.

ARTICLE V CITY’S OBLIGATIONS

5.1 Ownership of Documents.

Once the Consultant has received any compensation for the Consulting Services performed, all documents, including but not limited to, original plans, studies, sketches, drawings, computer printouts and disk files and specifications prepared in connection with or related to any task or Consulting Services shall

be the property of the City. The City’s ownership of these documents includes use of, reproduction or reuse of and all incidental rights, whether or not the work for which they were prepared has been performed. The City’s ownership entitlement arises upon payment or any partial payment for work performed and includes ownership of any and all work product completed. This Section 5.1 shall apply whether the Consultant’s Consulting Services are terminated by the completion of the Project or in accordance with other provisions of this Agreement. Notwithstanding any other provision of this paragraph or Agreement, the Consultant shall have the right to make copies of all such plans, studies, sketches, drawings, computer printouts and disk files and specifications.

The Consultant shall not be responsible for damage caused by subsequent changes to or uses of the

plans or specifications, where the subsequent changes or uses are not authorized or approved by the Consultant, provided that the service rendered by the Consultant was not a proximate cause of the damage.

5.2 Additional Consultants or Contractors. The City reserves the right to employ, at its own expense, such additional consultants or contractors

as the City deems necessary to perform work or to provide the Consulting Services on the Project.

5.3 Employment of City Staff. This Agreement may be unilaterally and immediately terminated by the City, at its sole discretion, if

the Consultant employs an individual who, within the last twelve months immediately preceding such employment did, in the individual’s capacity as an officer or employee of the City, participate in, negotiate with or otherwise have an influence on the recommendation made to the City Council or City Manager in connection with the selection of the Consultant.

ARTICLE VI

INDEMNIFICATION

6.1 Indemnification for Professional Liability. When the law establishes a professional standard of care for the Consultant’s Services, to the fullest extent permitted by law, the Consultant shall indemnify, defend and hold harmless the City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all losses, liabilities, damages, costs and expenses, including reasonable attorney’s fees and costs to the extent same are caused by any negligent or wrongful act, error or omission of the Consultant, its officers, agents, employees or Subcontractors (or any entity or individual that the Consultant shall bear the legal liability thereof) in the performance of professional services under this agreement. With respect to the design of public improvements, the Consultant shall not be liable for any injuries or property damage resulting from the reuse of the design at a location other than that specified in Exhibit “A” without the written consent of the Consultant. 6.2 Indemnification for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend and hold harmless the City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, including reasonable attorneys fees and costs, court costs, interest, defense costs and expert witness fees), to the extent the same arise out of, are a consequence of, or are in any way attributable to the performance of, this Agreement by Consultant or by any individual or entity for which the Consultant is legally liable, including but not limited to officers, agents, employees or Subcontractors of the Consultant.

6.3 General Indemnification Provisions. The Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every Subcontractor or any other person or entity involved by, for, with or on behalf of the Consultant in the performance of this Agreement. In the event the Consultant fails to obtain such indemnity obligations from others as required here, the Consultant agrees to be fully responsible according to the terms of this section. Failure of the City to monitor compliance with these requirements imposes no additional obligations on the City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend the City as set forth here is binding on the successors, assigns or heirs of the Consultant and shall survive the termination of this Agreement or this section. 6.4 Indemnity Provisions for Contracts Related to Construction. Without affecting the rights of the City under any provision of this Agreement, the Consultant shall not be required to indemnify and hold harmless the City for liability attributable to the active negligence of the City, provided such active negligence is determined by agreement between the Parties or by the findings of a court of competent jurisdiction. In instances where the City is shown to have been actively negligent and where the City’s active negligence accounts for only a percentage of the liability involved, the obligation of the Consultant will be for that entire portion or percentage of liability not attributable to the active negligence of the City.

ARTICLE VII MISCELLANEOUS

7.1 Notices.

In all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is deposited in the United States mail, postage paid. Proper notice shall be effective on the date it is mailed, unless provided otherwise in this Agreement. For the purpose of this Agreement, unless otherwise agreed in writing, notice to the City shall be addressed to: Parks & Recreation Department, 1275 Main Street El Centro, CA 92243 and notice to the Consultant shall be addressed to ___.

7.2 Headings.

All article headings are for convenience only and shall not affect the interpretation of this Agreement.

7.3 Non-Assignment. The Consultant shall 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, without the City’s prior written approval. Any assignment in violation of this paragraph shall constitute a Default and is grounds for immediate termination of this Agreement, at the sole discretion of the City. In no event shall any putative assignment create a contractual relationship between the City and any putative assignee.

7.4 Independent Contractors. The Consultant and any Subcontractors employed by the Consultant shall be independent

contractors and not agents of the City. Any provisions of this Agreement that may appear to give the City any right to direct the Consultant concerning the details of performing the Consulting Services, or to exercise any control over such performance, shall mean only that the Consultant shall follow the direction of the City concerning the end results of the performance. Without receiving the Consultant’s written permission, the City agrees not to hire, retain or contract with any employee of the Consultant who

performs services for the City under this Agreement for one year from the date this Agreement is terminated.

7.5 Consultant and Subcontractor Principals for Consulting Services. It is understood that this Agreement is for unique Consulting Services. Retention of the

Consultant’s Consulting Services is based on the particular professional expertise of the individuals rendering the services set forth in each task. Accordingly, portions of the described service may not be delegated to other members of the team or Subcontractors without prior written consent by the City. It is mutually agreed that Dennis Berkshire is the principal person responsible for delivery of all Consulting Services and may not be removed from any tasks without the City’s prior written approval. In the event Dennis Berkshire becomes unavailable for any reason, the City must be consulted as to any replacements. Further, the City reserves the right, after consultation with the Consultant, to require removal of the Consultant’s employees or agents.

7.6 Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of the City

or the Consultant shall be deemed to be both covenants and conditions. 7.7 Compliance with Controlling Law. The Consultant shall comply with all laws, ordinances, regulations and policies of the Federal,

State, and local governments applicable to this Agreement. In addition, the Consultant shall comply immediately with all directives issued by the City or its authorized representatives under authority of any laws, statutes, ordinances, rules or regulations. The laws of the State of California shall govern and control the terms and conditions of this Agreement.

7.8 Jurisdiction, Venue, and Attorney Fees. The venue for any suit or proceeding concerning this Agreement, the interpretation or application

of any of its terms or any related disputes shall be in the County of Imperial, State of California. 7.9 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.

7.10 Integration.

This Agreement and the exhibits and references incorporated into this Agreement fully express all understandings of the Parties concerning the matters covered in this Agreement. No change, alteration or modification of the terms or conditions of this Agreement, and no verbal understanding of the Parties, their officers, agents or employees, shall be valid unless made in the form of a written change agreed to in writing by both Parties or an amendment to this Agreement agreed to by both Parties. All prior negotiations and agreements are merged into this Agreement.

7.11 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.

7.12 No Waiver.

No failure of either the City or the 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 to any existing or subsequent breach.

7.13 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.

7.14 Municipal Powers.

Nothing contained in this Agreement shall be construed as a limitation upon the powers of the City as a charter city of the State of California.

7.15 Drafting Ambiguities.

The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether or not to seek advice of counsel with respect to this Agreement is a decision that 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.

7.16 Signing Authority.

The representative for each Party signing on behalf of a corporation, partnership, joint venture or governmental entity hereby declares that authority has been obtained to sign on behalf of the corporation, partnership, joint venture or entity and agrees to hold the other Party or Parties hereto harmless if it is later determined that such authority does not exist.

7.17 Conflicts Between Terms.

If an apparent conflict or inconsistency exists between the main body of this Agreement and the exhibits, the main body of this Agreement shall control. If a conflict exists between an applicable Federal, State, or local law, rule, regulation, order or code and this Agreement, the law, rule, regulation, order or code shall control. Varying degrees of stringency among the main body of this Agreement, the exhibits, and laws, rules, regulations, orders or codes 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.

IN WITNESS WHEREOF, this Agreement is executed by the City Council of the City of El Centro, acting by and through City Manager, pursuant to Resolution No. 11-____, authorizing such execution, and by the Consultant.

Dated this ______ day of _____________, 2011.

THE CITY OF EL CENTRO By:

Ruben Duran, City Manager

Date: _______________________________

I HEREBY CERTIFY I can legally bind _________ and that I have read all of this Agreement, this day of _______________, 2011.

By: Authorized Representative

Title:

Print Name: _________________________

Date: _______________________________

I HEREBY APPROVE the form and legality of the foregoing Agreement this day of ____________, 2011.

APPROVED AS TO FORM:

Office of the City Attorney By ___________________________________ Date _______________________ Kris M. Becker, Associate City Attorney

EXHIBIT “A”

SCOPE OF SERVICE

[TO BE PROVIDED BY CONSULTANT]

EXHIBIT “B”

FEE SCHEDULE

[TO BE PROVIDED BY CONSULTANT]

EXHIBIT “C”

INSURANCE REQUIREMENTS

Prior to the beginning of and throughout the duration of the Work, Consultant will maintain insurance in conformance with the requirements set forth below. Consultant will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Consultant agrees to amend, supplement or endorse the existing coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to City.

I TYPES OF INSURANCE

Consultant shall provide the following types and amount of insurance:

Note: verify minimum limit for each coverage with Risk Manager]

A. Commercial General Liability.

Commercial General Liability insurance using Insurance Services Office “Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $1,000,000 per occurrence and $2,000,000 aggregate. B. Business Auto Coverage.

Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If Consultant or Consultant’s employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person. C. Workers’ Compensation. Workers Compensation on a state-approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident or disease. D. Professional Liability or Errors and Omissions Insurance.

Professional Liability or Errors and Omissions insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant and “Covered Professional Services” as designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer’s duty to defend. The policy retroactive date shall be on or before the effective date of this agreement. E. Unemployment and Disability Insurance.

Unemployment and disability insurance shall be provided and maintained in the manner and in the amounts required by the Unemployment Insurance Code.

II INSURER QUALIFICATIONS

Insurance procured pursuant to these requirements shall be written by insurer that are admitted carriers in the state of California and with an A.M. Bests rating of A- or better and a minimum financial size VII.

III GENERAL CONDITIONS

General conditions pertaining to provision of insurance coverage by Consultant. Consultant and City agree to the following with respect to insurance provided by Consultant: 1. Consultant agrees to have its insurer endorse the third party general liability coverage required herein

to include as additional insureds City of El Centro, its officials, employees and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992, or equivalent provisions as determined by the Office of the City Attorney for the City of El Centro in its sole discretion. Consultant also agrees to require all consultants, subconsultants and anyone else involved in any way with the project contemplated by this agreement, to do likewise.

2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or

Consultant’s employees, or agents, from waiving the right of subrogation prior to a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all consultants and subconsultants to do likewise.

3. All insurance coverage and limits provided by Consultant and available or applicable to this

agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations limits the application of such insurance coverage.

4. None of the coverages required herein will be in compliance with these requirements if they include

any limiting endorsements of any kind that has not been first submitted to City and approved of in writing.

5. No liability policy shall contain any provision or definition that would serve to eliminate so-called

“third party action over” claims, including any exclusion for bodily injury to an employee of the insured or of any consultant or subconsultant.

6. All coverage types and limits required are subject to approval, modification and additional requirements by the City, as the need arises. Consultant shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City’s protection without City’s prior written consent.

7. Proof of compliance with these insurance requirements, consisting of certificates of insurance

evidencing all of the coverages required and an additional insured endorsement to Consultant’s general liability policy, shall be delivered to City at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interest under this or any other agreement and

to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City option.

8. Endorsements and certificate(s) are to reflect that the insurer will provide 30 days notice to City of

any cancellation of coverage. Consultant agrees to require its insurer to modify such endorsements or certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will “endeavor” (as opposed to being required) to comply with the requirements of the certificate.

9. It is acknowledged by the parties of this agreement that all insurance coverage required to be

provided by Consultant or any subconsultant, is intended to apply first and on a primary, non-contributing basis in relation to any other insurance or self insurance available to City.

10. Consultant agrees to ensure that subconsultants, 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 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 of this section. Consultant agrees that upon request, all agreements with subconsultants and others engaged in the project will be submitted to City for review.

11. Consultant agrees not to self-insure or to use any self-insured retentions or deductibles on any portion

of the insurance required herein and further agrees that it will not allow any consultant, subconsultant, Architect, Engineer or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self-insure its obligations to City. If Consultant’s existing coverage includes a deductible or self-insured retention, the deductible or self-insured retention must be declared to the City. At that time the City shall review options with the Consultant, which may include reduction or elimination of the deductible or self-insured retention, substitution of other coverage, or other solutions.

12. 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 will negotiate additional compensation proportional to the increased benefit to City.

13. For purposes of applying insurance coverage only, this Agreement will be deemed to have been

executed immediately upon any Party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement.

14. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on City not does it waive any rights hereunder in this or any other regard.

15. Consultant will renew the required coverage annually as long as City, or its employees or agents face

an exposure from operations of any type pursuant to this agreement. This obligation applies whether or not the agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect.

16. Consultant shall provide proof that policies of insurance required herein expiring during the term of

this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant’s insurance agent to this effect is acceptable. A certificate of insurance and an additional insured endorsement as required in these specifications applicable to

the renewing or new coverage must be provided to City within five days of the expiration of the coverages.

17. The provisions of any workers’ compensation or similar act will not limit the obligations of

Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials and agents.

18. Requirements of specific coverage features or limits contained in this section are not intended as

limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only at it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive.

19. These insurance requirements are intended to be separate and distinct from any other provision in this

agreement and are intended by the parties here to be interpreted as such. 20. The requirements in this Exhibit supersede all other sections and provisions of this Agreement to the

extent that any other section or provision conflicts with or impairs the provisions of this Exhibit. 21. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any

way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.

22. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising

out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City.

EXHIBIT “D”

CONSULTANT’S FINANCIAL DISCLOSURE STATEMENT 1 Consultant will comply with all conflict of interest laws and regulations including, without limitations, City’s Conflict of Interest Code (on file in the City Clerk’s Office) as required by Section 4.10 of this Agreement. It is incumbent upon the Consultant to notify the City pursuant to Sections 7.1 and 7.5 of any staff changes relating to this Agreement. The City Manager has made the following determination and Consultant, by his/her signature, acknowledges said determination. 2

A. In accomplishing the scope of services of this Agreement, all officers, employees and/or agents of Consultant will be performing a very limited and closely supervised function, and, therefore, unlikely to have a conflict of interest arise. No disclosures are required of any officers, employees, and/or agents of Consultant. Consultant duties are as follows:

_______________________________ _____________________________________ City Manager Consultant Signature & Title

B. In accomplishing the scope of services of this Agreement, Consultant will be performing a specialized or general service for the City, and there is substantial likelihood that the Consultant may make or participate in making a governmental decision which may have a foreseeable material effect on a financial interest. As a result, the Consultant shall be subject to the Disclosure Category “Consultant” of the City’s Conflict of Interest Code.

______________________________ _____________________________________ City Manager Consultant Signature & Title

1 Title 2, Division 6. California Code of Regulations Section 18701(a)(2). Pursuant to a contract with a local government agency, a consultant shall be required to file a Statement of Economic Interest if that Consultant will: “(A) Make a government decision whether to: (1) Approve a rate, rule or regulation; (2) Adopt or enforce a law; (3) Issue, deny, suspend or revoke any permit, license, application, certificate, approval, order or similar authorization or entitlement; (4) Authorize the agency to enter into, modify or renew a contract provided it is the type of contract which requires agency approval; (5) Grant agency approval to a contract which requires agency approval and which the agency is the party or to the specifications for such contract; (6) Grant agency approval to a plan, design, report, study or similar item; or (7) Adopt, or grant approval of policies, standards or guidelines for the agency or for any subdivision thereof; or (B) Serves in a staff capacity with the agency and in that capacity participates in making a governmental decision as defined in regulation 18702.2 or performs the same or substantially all the same duties for the agency that would otherwise be performed by an individual holding a position specified in the agency’s Conflict of Interest Code, under Governmental Code Section 87302.” 2 Disclosure by Consultants: Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the City’s adopted Conflict of Interest Code, subject to the following limitations: The City Manager may determine in writing that a particular consultant, although a “designated position”, is hired to perform a range of duties that is limited in scope and closely supervised, and, thus, is not required to comply with the disclosure requirements in the City’s adopted Conflict of Interest Code. Such written determination shall include a description of the consultant’s duties. The City Manager’s determination is a public record and shall be retained for public inspection in the same manner and location as the City’s adopted Conflict of Interest Code.