CC - Item 6F - Lead Based Paint and Asbestos Testing and Risk Assessment Services - Authorization Solicit BidsROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGER
DATE: OCTOBER 27, 2009
SUBJECT: LEAD BASED PAINT AND ASBESTOS TESTING AND RISK
ASSESSMENT SERVICES - AUTHORIZATION TO SOLICIT BIDS
SUMMARY
The U.S. Department of Housing and Urban Development (HUD) regulations require
that lead based paint and asbestos testing, assessment, and clearances be completed
on all Owner-Occupied Rehabilitation Programs and Down Payment Assistance Loan
Programs funded through either the Community Development Block Grant (CDBG)
Program or HOME Investment Partnerships (HOME) Program.
Over the past three (3) years, the City has contracted with Barr & Clark for this service.
As part of the procurement requirements under the Community Development Block
Grant (CDBG) program, an organization may only receive funding for up to three years
for the same program or activity before a new Request for Proposal must be completed.
The City's contract with Barr & Clark will expire on June 30, 2010.
Staff Recommendation
Staff recommends that the City Council authorize staff to advertise for this service and
solicit bids for a qualified firm to conduct lead based paint and asbestos testing,
assessment, and clearance testing in accordance with federal requirements for FY
2010-2011 with an option to extent the contract for two (2) additional years.
ANALYSIS
On September 15, 2000, new federal regulations took effect to help reduce the hazard
of lead-based paint in the environment. In addition, Title 8 of the State CCR's,
CaIOSHA, and SCAQMD Rule 1403 requires the removal or encapsulation of asbestos
containing materials and prevent exposure of materials containing more than one
percent of asbestos. These regulations affect rehabilitation and first time home buyer
programs offered by the City that are funded through the CDBG Program and the
HOME Program.
ITEM NO. LF _
APPROVED FOR CITY COUNCIL AGENDA:
City Council Meeting
October 27, 2009
Paoe 2 of 2
The regulations require the City to conduct lead based paint and asbestos testing,
assessment, and clearances for properties participating in the City's Owner-Occupied
Rehabilitation Program and clearance tests of properties purchased through the City's
Down Payment Assistance Program where peeling paint has been identified and
requires remediation.
The City's current three-year contract with Barr & Clark for this service will expire on
June 30, 2009. As a result, the City is required, under the CDBG regulations, to issue a
Request for Proposal and enter into a new contract with a maximum time limit of three
years.
FINANCIAL REVIEW
Under the CDBG Program, the City has a lead based paint and asbestos testing grant
in place to pay for the testing, assessment, and clearance costs. There will be no
financial impact to the City's General Fund.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Prepared by:
Michelle G. Ramirez
Economic Development dministrator
Su ~tte
Bria ki
Community Development Director
Attachment A: Proposed RFP
REQUEST FOR PROPOSAL
CITY OF ROSEMEAD'S
LEAD BASED PAINT AND ASBESTOS TESTING AND
CONSULTING SERVICES
SUBMITTALS:
Seven (7) bound copies, one (1) unbound reproducible copy, and one (1)
electronic/digital copy of the proposal in sealed envelope must be received by the
City of Rosemead's City Clerk's Office by no later than Wednesday, December 9,
2009 at 5:00 p.m.
CONTACT PERSON:
Michelle Ramirez, Economic Development Administrator
City of Rosemead
8838 E. Valley Boulevard
Rosemead, California 91770
(626) 569-2140
mram i rez@cityofrosemead. orb
PROPOSALS RECEIVED AFTER THE TIME AND DATE STATED ABOVE SHALL
NOT BE CONSIDERED. FACSIMILE AND E-MAIL PROPOSAL WILL NOT BE
ACCEPTED.
INQUIRES: Direct questions or clarification on Request for Proposal documents
to Michelle Ramirez, Economic Development Administrator at (626)
569-2158 (mramirez@cityofrosemead.org) or Pat Piatt, Management
Analyst at (626) 569-2102 (ppiatt n, cityofrosemead.org)
MODIFICATIONS: Any modification of this RFP will be provided to consultants
who request notification of any modifications.
ISSUANCE DATE: October 28, 2009
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City of Rosemead, Community Development Department
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City of Rosemead, Community Development Department
Lead Based Paint and Asbestos Testing
and Consulting Services
Rosemead, California
N Request for Proposals N
INTRODUCTION
The City of Rosemead, Community Development Department is seeking proposals for a qualified
Risk Assessor/Inspector to perform Lead Based Paint (LBP) and Asbestos testing, risk
assessments and clearances for the City's CDBG-funded Residential Rehabilitation Program. The
term of the contract is from July 1, 2010 through June 30, 2011 and up to two subsequent years.
The requested services will be conducted in accordance with federal regulations (24 CFR Part 35
and Chapter 7 (revised) "HUD Guidelines for Lead Based Paint Inspections; and 40 CFR Part 763 -
Asbestos) and California Regulations (Title 17, CCR, Division 1, Chapter 8 (LBP) and Title 8 of the
CCR (Asbestos)) or as amended during the term of the contract.
The successful applicant must have the following qualifications:
♦ Demonstrated ability and staffing resources to undertake the lead-based paint and
asbestos testing, assessment, and clearance activities and prepare reports as
described in the Scope of Work;
♦ Comprehensive experience in conducting lead-based paint and asbestos testing
activities under the federal regulations governing the program's funding source;
• Appropriate Federal and State licenses and continuing education required to provide
said services; and
♦ Ability to promote an effective working relationship with program applicants, contractors
and City staff.
GENERAL
Proposals are due by 5:00 p.m. on Wednesday, December 9, 2009 to:
City of Rosemead
City Clerk's Office
Attn: Michelle G. Ramirez
8838 East Valley Boulevard
Rosemead, California 91770
Requirement to meeting all Proposal Revisions - Each applicant shall meet all of the
specifications and Proposal terms and conditions. By virtue of the Proposal submission, the
applicant acknowledges agreement with, and acceptance of, all provisions of the specifications
except as expressly qualified in the proposal. Non-substantial deviations may be considered
provided that the applicant submits a full description and explanation of and justifications for the
proposed deviations. Whether any proposed deviation is non-substantial will be determined by the
City of Rosemead in its sole discretion.
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City of Rosemead, Community Development Department
Communications Regarding Proposal - If a prospective applicant is in doubt as to the true
meaning and/or intent of any part of the documents or discovers discrepancies and/or omissions,
the applicant may submit to the City of Rosemead, a request for interpretation or correction thereof.
Interpretations or corrections of the documents shall be made only by addendum duly issued by the
City of Rosemead, Development Services Department. A copy of such addendum will be mailed or
delivered to each potential applicant receiving a Proposal. Such addendum will be considered a
part of and incorporated into the proposal documents.
Proposal Submission - Submit seven (7) bound copies of your proposal, one (1) unbound
reproducible copy, and one (1) electronic/digital copy as specified on pages 6 and 7. The Proposals
shall be enclosed in a sealed envelope and addressed to:
City of Rosemead
City Clerk's Office
Attn: Michelle G. Ramirez
8838 East Valley Boulevard
Rosemead. California 91770
The Proposal shall be clearly labeled with the Proposal name, name of applicant, and submission
date and time.
No Proposal received after the time specified or at any place other than the place stated in this
Proposal will be considered. Late submissions and postmarks will not be accepted.
Submission of One Proposal Only- No individual or business entity of any kind shall be allowed
to make or file more than one Proposal, except an alternative Proposal when specifically requested.
However, an individual or business entity which has submitted a sub-proposal to an applicant that is
submitting a Proposal or who has quoted prices on materials to such applicant is not disqualified
from submitting a sub-proposal or to quoting prices to other applicants submitting Proposals.
Proposal Withdrawal -An applicant may withdraw the Proposal without prejudice prior to the time
specified for the Proposal due date by submitting a written request to the City. The Proposal will be
returned to the applicant.
Proposal Retention and Award - The City retains the right to retain all proposals after the
Proposal due date for examination and comparison. The City also reserves the right to determine
and waive non-substantial irregularities in any proposal, to reject any and all proposals, to reject only
part of a proposal and accept the other, except to the extent that the proposals are qualified by
specific limitations and to make award to any responsible applicant or applicants as the interest of
the City may require.
Contract Requirement- The awarded applicant shall execute a written contract with the City within
ten (10) calendar days after notice to award has been sent by mail to the address given in the
proposal. The contract shall be made in the form adopted by the City and incorporated with the
Proposal. The applicant warrants that s/he possesses, or has arranged to possess through
subcontracts, all capital, equipment, labor and materials to carry out and complete the work
hereunder in compliance with all federal, State, County, and local laws and ordinances that are
applicable.
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City of Rosemead, Community Development Department
Failure to Accept Contract - If upon notification of intent to award the contract by the City, the
applicant fails to enter into the Contract within the specified period of time, the pending award may
be annulled. An award may be made to the next responsible applicant that fulfills every term and
condition of the Proposal.
Term of Contract- The term of the contract from July 1, 2010 through June 30, 2011 and up to two
subsequent years.
Non-Exclusive Contract - The City reserves the right to purchase services listed in the Proposal,
as well as any supplemental services, from other vendors during the Contract term.
Insurance - Without limiting Consultant's indemnification of City, Consultant shall, at its expense,
procure and maintain for the duration of the Contract, insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the performance of the
Contract by the Consultant, its agents, representatives, employees or subcontractors. Insurance is
to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Consultant shall
also require all of its subcontractors to procure and maintain the same insurance for the duration of
the Contract. Such insurance shall meet at least the following minimum levels of coverage:
Minimum Scope of Insurance: Coverage shall be at least as broad as the latest version of the
following:
(1) General Liability: Insurance Services Office Commercial General Liability coverage
(occurrence form CG 0001);
(2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA
0001, code 1 (any auto);
(3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as
required by the State of California and Employer's Liability Insurance; and
(4) Professional Liability/Errors and Omissions: Professional Liability/Errors and Omissions
insurance appropriate to their profession for a period of five (5) years following completion
of the Project.
Minimum Limits of Insurance: Consultant shall maintain limits no less than:
(1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property
damage. If Commercial General Liability Insurance or other form with general aggregate
limit is used, either the general aggregate limit shall apply separately to this
Agreement/location or the general aggregate limit shall be twice the required occurrence
limit ($2,000,000);
(2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage;
(3) Workers' Compensation and Employer's Liability: Workers' Compensation limits as
required by the Labor Code of the State of California. Employer's Liability limits of
$1,000,000 per accident for bodily injury or disease; and
(4) Professional Liability/Errors and Omissions: Consultant shall procure and maintain, and
require its sub-consultants to procure and maintain, for a period of five (5) years following
completion of the Project, errors and omissions liability insurance appropriate to their
profession. Such insurance shall be in an amount not less than $1,000,000 per claim, and
shall be endorsed to include contractual liability.
Insurance Endorsements: The insurance policies shall contain the following provisions, or
Consultant shall provide endorsements on forms supplied or approved by the City to add the
following provisions to the insurance policies:
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City of Rosemead, Community Development Department
(A) General Liability: The general liability policy shall be endorsed to state that: (1) the City,
its directors, officials, officers, employees, agents and volunteers shall be covered as
additional insured with respect to the Work or operations performed by or on behalf of the
Consultant, including materials, parts, or equipment furnished in connection with such
work; and (2) the insurance coverage shall be primary insurance in respect to the City, its
directors, officials, officers, employees, agents, and volunteers, or if excess, shall stand in
an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage.
Any insurance or self-insurance maintained by the City, its directors, officials, officers,
employees, agents and volunteers shall be excess of the Consultant's insurance and shall
not be called upon to contribute with it in any way.
(B) Automobile Liability: The automobile liability policy shall be endorsed to state that: (1) the
City, its directors, officials, officers, employees, agents, and volunteers shall be covered as
additional insureds with respect to the ownership, operation, maintenance, use, loading, or
unloading of any auto owned, leased, hired, or borrowed by the Consultant orfor which the
Consultant is responsible; and (2) the insurance coverage shall be primary insurance in
respect to the City, its directors, officials, officers, employees, agents, and volunteers, or if
excess, shall stand in an unbroken chain of coverage in excess of the Consultant's
scheduled underlying coverage. Any insurance or self-insurance maintained by the City,
its directors, officials, officers, employees, agents, and volunteers shall be excess of the
Consultant's insurance and shall not be called upon to contribute with it in any way.
(C) Workers' Compensation and Employers Liability Coverage: The insurer shall agree to
waive all rights of subrogation against the City, its directors, officials, officers, employees,
agents, and volunteers for losses paid under the terms of the insurance policy which arise
from work performed by the Consultant.
(D) All Coverages: Each insurance policy required by this Agreement shall be endorsed to
state that: (A) coverage shall not be suspended, voided, reduced, or canceled except after
thirty (30) days prior written notice by certified mail, return receipt requested, has been
given to the City; and (B) any failure to comply with reporting or other provisions of the
policies, including breaches of warranties, shall not affect coverage provided to the City, its
directors, officials, officers, employees, agents, and volunteers.
Failure to Procure or Maintain Insurance:
Consultants' failure to procure or maintain required insurance shall constitute a material breach of
contract under which the City may immediately terminate the contract.
Delivery of Records in Case of Termination - If the contract is terminated pursuant to any
provision set forth in the contract, the Consultant shall deliver and transfer to the City all materials
including all applicant files, written reports, documents or notices, studies, photographs,
correspondence, data and materials, regardless of type. Said delivery shall occur within ten (10)
calendar days after receipt by either party of said Notice of Termination or as mutually agreed by the
parties.
SCOPE OF SERVICES
The City recognizes the danger posed by both lead based paint and asbestos hazards, and that
such hazards can be reduced by identifying the existence of these hazards and providing
assistance for safe work practices, interim controls and where necessary, limited or total abatement.
Proposed lead and asbestos testing, risk assessment, and clearance activities will be conducted in
accordance with Federal and State regulations, as stated above or any amendments thereto.
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City of Rosemead, Community Development Department
Lead and asbestos testing, risk assessment, and clearance activities are to be conducted by
personnel who are experienced and who hold current required state and/or federal licenses to
conduct these activities.
The applicant shall not be affiliated with any painting, remodeling, or abatement firm that poses a
conflict of interest or the potential for a conflict of interest.
Combined Lead and Asbestos Testing/Risk Assessment:
Lead testing will be conducted using an approved spectrum analyzer X-ray Fluorescence Analyzer,
or comparable federally approved testing or sampling technique that meets or exceeds federal
requirements (HUD/EPA). Selected Consultant shall be required to provide proof that testing was
conducted by a State of California certified inspector using an approved instrument and that
calibration tests were conducted in conformance with requirements and with the Product
Characterization Sheet from the manufacturer.
Asbestos testing shall be performed on the materials/work items identified, including known or
suspected asbestos containing materials. The Consultant will provide proof that testing was
conducted by a certified inspector (AHERA and CaIOSHA), with each report. Consultant will provide
a complete report of the analysis of the samples taken at the property, and the report should also
indicate the necessity of monitoring and air sampling during construction activities.
The City shall provide a written list of item(s) to be inspected on each project and identify whether
testing shall be limited or full, and whether it covers exterior and/or interior surfaces. The Consultant
shall conduct inspections within five (5) business days of receiving the written request from the City.
Each inspection report provided by the Consultant shall include:
1. Sampling plan that outlines the testing to be done;
2. Tests as required by regulation on each room equivalent and testing component, with
room equivalents and testing components to be determined by the inspector;
3. Proof that testing was conducted according to the sampling plan and a written report
explaining the results of said investigation.
If the lead inspection results equal or exceed the action level of 1.0 milligrams per centimeter
squared, 0.5 percent by weight or 5,000 ppm (or subsequent action level adopted by State or
Federal regulations), the Consultant shall provide written notification to the City within 24-hours of
the test results and address of the project tested.
If the lead inspection results equal or exceed the level of 0.8 milligrams per centimeter squared, the
consultant will include a statement in a written report regarding worker safety protocols as
prescribed by the California Occupational Safety and Health Agency (Cal-OSHA).
For any project where a lead and/or asbestos hazard has been identified, the Consultants' reports
will provide recommendations regarding interim controls, safe work practices, abatement, and post
remediation clearance testing.
The Consultant will provide two (2) copies of the written combined testing and risk assessment of
each within five (5) business days after tests are conducted and test results are received. If both
lead and asbestos testing is performed at the specific property, a report is to be prepared for each
test. The City will distribute one copy of each report to the owner-occupant of the property.
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Clearance Testing:
Clearance testing will be conducted in accordance with Federal and State regulations. At a
minimum, Contractors must wait one (1) hour before beginning clean-up and the clearance
inspection may not take place until one (1) hour after clean-up has been completed. Clearance
testing will consist of the required dust samples (for lead) and air samples (for asbestos) in the
interior and exterior as required under the regulations. Except for soil samples, dust samples shall
not be composite samples.
TIME FRAME FOR IMPLEMENTATION
The Consultant shall take action to ensure that the City has the necessary request forms, and be
prepared to schedule testing and/or clearances within ten (10) days after execution of contract and
Notice to Proceed. The Consultant shall allocate sufficient staff and resources to accomplish the
estimated 30 annual projects (or estimated 90 projects over the life of the contract).
BILLING AND PAYMENT
Billing shall be made upon receipt of the reports. Billing shall include any necessary back-up
documentation to support billing. Payment shall be made in accordance with the City's Warrant
Register schedule.
PROPOSAL CONTENT
Submitted proposals shall be organized in the following manner and contain all of the following
requirements.
1. Cover page including the name of the firm, address, telephone, fax, email information,
and contact person's name and telephone number.
2. Qualifications of the Consultant to perform the work as indicated in the scope of
services.
3. Statement of Applicant's Training and Certificates.
4. Copies of valid Federal and State Lead and Asbestos Consultant/Risk
Assessor/Inspector Certifications for personnel to be assigned to the project.
5. A minimum of three references, at least one of which must be from a unit of local
government. References need to include the name of the firm/government, contact
person and telephone number, address, and type of work performed.
6. Proof of Insurance coverage requirements.
7. Statement of Understanding of the Scope of Services, including combined risk
assessmentlinspection and clearance testing for both lead and asbestos.
8. Description of Standard Operating Procedures, including sample reports of both a lead
based paint report and asbestos report; type of XRF and name and address of NLLAP-
approved laboratory used by the company for lead testing; and how asbestos testing will
be performed.
9. A Statement regarding pending or completed litigation or settlements regarding services
provided by the company, including professional liability for errors and omissions.
10. Example of a service request form for testing, risk assessments and clearances.
11. Fees for performing each combined inspection/assessment and clearance test. These
should be separated with fees for lead based paint and asbestos. Fees should be
based on a per job cost.
12. Schedule of standard hourly rates.
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Where a section is not applicable, there should be a written statement regarding why the section is
not included. Incomplete proposals will not be considered. Proposals must be submitted by 5:00
p.m. on December 9, 2009. Late submittals and postmarks will not be considered.
DOCUMENT SUBMITTALS
1. To be considered, please submit seven (7) bound copies of your proposal, one (1)
unbound reproducible copy, and one (1) electronic/digital copy of the proposal in sealed
envelope(s) that shall be clearly marked:
"SEALED PROPOSAL FOR HOUSING ELEMENT UPDATE - DO NOT OPEN WITH
REGULAR MAIL."
In addition, cost estimates and fee schedules must be submitted to the City in a separate
sealed envelope.
2. All proposals must be received by the City Clerk's Office at the address below, no later
than:
Wednesday, December 9, 2009
**no later than 5:00 p.m.**
All copies received by that date/time will be date and time stamped. Proposals received
after the due date/time will be returned unopened.
3. Proposals must be addressed to:
City of Rosemead
City Clerk's Office
Attn: Michelle G. Ramirez
8838 East Valley Boulevard
Rosemead, California 91770
Faxed or e-mailed proposals will not be accepted. Hand carried proposals will be
accepted before the response due date/time at the address above during normal
business hours of 7:00 a.m. through 6:00 p.m., Monday through Thursday. The City of
Rosemead is closed on Fridays.
PROPOSAL EVALUATION AND SELECTION
Submitted proposals will be evaluated by a Review Committee on the basis of the following criteria:
1. Demonstrated understanding of the Scope of Services and specifications.
2. Demonstrated professional/technical skills and credentials of all staff to be assigned to
the project.
3. Applicant's related experience, references, and the number of staff persons assigned to
the project.
4. General Quality of completeness of the proposal submitted.
5. Cost to the City for services to be contracted.
The City reserves the right to invite any and all applicants to attend an oral interview and/or to
request additional clarifying information from any or all applicants. The recommendation of the
Review Committee will be submitted to the City Council for award of the contract of the project.
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SELECTION PROCEDURE
A proposal evaluation committee comprised of City staff will review each proposal. The most
qualified Consultant Firm(s) may be invited to participate in an interview with City staff to review
qualifications prior to selection. Final selection is expected to be made in mid-January.
CITY PROCESS
1. General Conditions: The City reserves the right to cancel or reject all, or a portion or
portions, of the request for proposals without notice. Further, the City makes no
representations that any agreement will be awarded to any organization submitting a
proposal. The City reserves the right to reject any and all proposals submitted in
response to this request or any addenda thereto. The City also reserves the right to
reject any sub-consultant or individual working on a Consultant team and to replace the
subconsultant or individual with a mutually-acceptable replacement. Any changes to the
proposal requirements will be made by written addendum.
2. Liability of Costs and Responsibility: The City shall not be liable for any costs incurred in
response to this request for proposals. All costs shall be borne by the person or
organization responding to the request. The person or organization responding to the
request shall hold the City harmless from any and all liability, claim, or expense
whatsoever incurred by or on behalf of that person or organization. All submitted
material becomes the property of the City of Rosemead. The selected Consultant shall
be required to assume responsibility for all services offered in the proposal whether or
not they possess them within their organization. The selected Consultant will be the sole
point of contact with regard to contractual matters, including payment of any and all
charges resulting from the contract.
3. Validity: The Consultant agrees to be bound by its proposal for a period of one-hundred
and eighty (180) days commencing December 9, 2009, during which time the City may
request clarification or correction of the proposal for the purpose of evaluation.
Amendments or clarifications shall not affect the remainder of the proposal, but only the
portion so amended or clarified.
4. Standard Agreement: A standard agreement has been provided (Attachment 1) for the
Consultant's review and comment. If a Consultant wishes to take exception to any of the
terms and conditions contained in the Professional Services Agreement, these should be
identified specifically; otherwise, it will be assumed that the Consultant is willing to enter
into the agreement as it is written. Failure to identify contractual issues of dispute can
later be the basis for the City disqualifying a Consultant. Any exceptions to terms,
conditions, or other requirements must be clearly stated. Otherwise, the City will
consider that all items offered are in strict compliance with the RFP, and the successful
Consultant will be responsible for compliance. The City will consider such exceptions as
part of the evaluation process, which may constitute grounds for rejection of the
proposal. The agreement will not be executed by the City without first being signed by
the Consultant.
5. Permits and Licenses: Consultant, and all of Consultant's subconsultants, at its and/or
their sole expense, shall obtain and maintain during the term of any agreement, all
appropriate permits, certificates and licenses, including but not limited to, a City
Business License, which will be required in connection with the performance of services
hereunder.
6. Oral and Written Explanations: The City will not be bound by oral explanations or
instructions given at any time during the review process or after the award. Oral
explanations given during the review process and after award become binding when
confirmed in writing by an authorized City official.
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Notes:
A PDF copy of this RFP can be found on the City of Rosemead's website at:
/
http://www.cityofrosemead.org
Attachments:
Professional Services Agreement (as proposed)
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Reserved
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City of Rosemead, Community Development Department
PROFESSIONAL SERVICE AGREEMENT BETWEEN THE CITY OF ROSEMEAD AND
PARTIES AND DATE.
This Agreement is made and entered into this day of , 2010 by and
between the City of Rosemead, a municipal organization organized under the laws of the State
of California with its principal place of business at 8838 East Valley Boulevard, Rosemead,
California 91770 ("City") and a foodservice and hospitality
provider with its principal place of business at
California ("Contractor'). City and Contractor are sometimes individually referred to
herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Funding.
City is the recipient of funds from the United States Department of Housing and Urban
Development (hereinafter "HUD") pursuant to Title I of the Housing and Community
Development Act of 1974 (41 U.S.C. 5301-5320) as amended (hereinafter "ACT"). The City has
approved the provision of federal funds under the ACT to be used to fund the Lead Based Paint
and Asbestos Testing Program ("Project") in the not to exceed amount of $ for
the FY 2010-11. Contractor is to perform all services set forth in the Schedule of Services,
attached hereto as Exhibit "A" and incorporated herein by reference.
2.2 Contractor.
Contractor desires to perform and assume responsibility for the provision of services
required by the City on the terms and conditions set forth in this Agreement. Contractor
represents that it is experienced and licensed in providing lead based paint and asbestos
testing, assessment and clearances tests of properties according to federal and state laws, is
licensed in the State of California, and is familiar with the plans of City.
2.3 Project.
City desires to engage Contractor to render such services for the Project as set forth in
this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to furnish to
the City all labor, materials, tools, equipment, food, services, and incidental and customary work
necessary to fully and adequately supply the counseling necessary for the Project ("Services").
The Services are more particularly described in Exhibit "A" attached hereto and incorporated
herein by reference. All Services shall be subject to, and performed in accordance with, this
Agreement, the exhibits attached hereto and incorporated herein by reference, and all
applicable local, state and federal laws, rules and regulations.
Professional Service Agreement
Page 2 of 18
3.1.2 Term. The term of this Agreement shall be from July 1, 2010 to June 30,
2011, unless earlier terminated as provided herein. Contractor shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
deadlines.
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates Independent Contractor. The
Services shall be performed by Contractor or under its supervision. Contractor will determine
the means, methods and details of performing the Services subject to the requirements of this
Agreement. City retains Contractor on an independent contractor basis and not as an
employee. Contractor retains the right to perform similar or different services for others during
the term of this Agreement. Any additional personnel performing the Services under this
Agreement on behalf of Contractor shall also not be employees of City and shall at all times be
under Contractor's exclusive direction and control. Contractor shall pay all wages, salaries, and
other amounts due such personnel in connection with their performance of Services under this
Agreement and as required by law. Contractor shall be responsible for all reports and
obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance.
3.2.2 Schedule of Services. Contractor shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with the Schedule of Services set forth in
Exhibit "A" attached hereto and incorporated herein by reference. Contractor represents that it
has the professional and technical personnel required to perform the Services in conformance
with such conditions. In order to facilitate Contractor's conformance with the Schedule, City
shall respond to Contractor's submittals in a timely manner. Upon request of City, Contractor
shall provide a more detailed schedule of anticipated performance to meet the Schedule of
Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Contractor shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Contractor has represented to City that
certain key personnel will perform and coordinate the Services under this Agreement. Should
one or more of such personnel become unavailable, Contractor may substitute other personnel
of at least equal competence upon written approval of City. In the event that City and Contractor
cannot agree as to the substitution of key personnel, City shall be entitled to terminate this
Agreement for cause. As discussed below, any personnel who fail or refuse to perform the
Services in a manner acceptable to the City, or who are determined by the City to be
uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a
threat to the safety of persons or property, shall be promptly removed from the Project by the
Contractor at the request of the City. The key personnel for performance of this Agreement are
as follows: ,
3.2.5 City's Representative. The City hereby designates City Manager, or his or
her designee, to act as its representative for the performance of this Agreement ("City's
Representative'). City's Representative shall have the power to act on behalf of the City for all
purposes under this Agreement. Contractor shall not accept direction or orders from any person
other than the City's Representative or his or her designee.
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3.2.6 Contractor's Representative. Contractor hereby designates
, or his designee, to act as its representative
for the performance of this Agreement ("Contractor's Representative"). Contractor's
Representative shall have full authority to represent and act on behalf of the Contractor for all
purposes under this Agreement. The Contractor's Representative shall supervise and direct the
Services, using his best skill and attention, and shall be responsible for all means, methods,
techniques, sequences and procedures and forthe satisfactory coordination of all portions of the
Services under this Agreement.
3.2.7 Coordination of Services. Contractor agrees to work closely with City staff
in the performance of Services and shall be available to City's staff, Contractors and other staff
at all reasonable times.
3.2.8 Standard of Care Performance of Employees. Contractor shall perform all
Services under this Agreement in a skillful and competent manner, consistent with the standards
generally recognized as being employed by professionals in the same discipline in the State of
California. Contractor represents and maintains that it is skilled in the calling necessary to
perform the Services. Contractor warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Finally, Contractor
represents that it, its employees and subcontractors have all licenses, permits, qualifications and
approvals of whatever nature that are legally required to perform the Services, including a City
Business License, and that such licenses and approvals shall be maintained throughout the
term of this Agreement. As provided for in the indemnification provisions of this Agreement,
Contractor shall perform, at its own cost and expense and without reimbursement from the City,
any services necessary to correct errors or omissions which are caused by the Contractor's
failure to comply with the standard of care provided for herein. Any employee of the Contractor
or its sub-contractors who is determined by the City to be uncooperative, incompetent, a threat
to the adequate or timely completion of the Project, a threat to the safety of persons or property,
or any employee who fails or refuses to perform the Services in a manner acceptable to the City,
shall be promptly removed from the Project by the Contractor and shall not be re-employed to
perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Contractor shall keep itself fully informed of and in
compliance with all local, state and federal laws, rules and regulations in any manner affecting
the performance of the Project or the Services, including all Cal/OSHA requirements, and shall
give all notices required by law. Contractor shall be liable for all violations of such laws and
regulations in connection with Services. If the Contractor performs any work knowing it to be
contrary to such laws, rules and regulations and without giving written notice to the City,
Contractor shall be solely responsible for all costs arising therefrom. In the event that the City is
required to reimburse the Federal Government as a result of a determination, after audit, that
Contractor has misused funds, Contractor shall pay City all disallowed sums. Contractor shall
defend, indemnify and hold City, its officials, directors, officers, employees and agents free and
harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability
arising out of any failure or alleged failure to comply with such laws, rules or regulations.
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3.2.10 Insurance.
3.2.10.1 Time for Compliance. Contractor shall not commence Work
under this Agreement until it has provided evidence satisfactory to the City that it has secured all
insurance required under this section. In addition, Contractor shall not allow any subcontractor
to commence work on any subcontract until it has provided evidence satisfactory to the City that
the subcontractor has secured all insurance required under this section.
3.2.10.2 Minimum Requirements. Contractor shall, at its expense,
procure and maintain for the duration of the Agreement insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the performance of
the Agreement by the Contractor, its agents, representatives, employees or subcontractors.
Contractor shall also require all of its subcontractors to procure and maintain the same
insurance for the duration of the Agreement. Such insurance shall meet at least the following
minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at
least as broad as the latest version of the following: (1) General Liability: Insurance Services
Office Commercial General Liability coverage (occurrence form CG 0001), (2) Automobile
Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any
auto); and (3) Workers' Compensation and Employer's Liability: Workers' Compensation
insurance as required by the State of California and Employer's Liability Insurance.
(B) Minimum Limits of Insurance. Contractor shall
maintain limits no less than: (1) General Liability: $3,000,000 per occurrence for bodily injury,
personal injury and property damage. If Commercial General Liability Insurance or other form
with general aggregate limit is used, either the general aggregate limit shall apply separately to
this Agreement/location or the general aggregate limit shall be $3,000,000; (2) Automobile
Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Workers'
Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor
Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily
injury or disease.
3.2.10.3 Insurance Endorsements. The insurance policies shall
contain the following provisions, or Contractor shall provide endorsements on forms supplied or
approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall be
endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and
volunteers shall be covered as additional insured with respect to the Services or operations
performed by or on behalf of the Contractor, including materials, parts or equipment furnished in
connection with such work; and (2) the insurance coverage shall be primary insurance as
respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess,
shall stand in an unbroken chain of coverage excess of the Contractor's scheduled underlying
coverage. Any insurance or self-insurance maintained by the City, its directors, officials,
officers, employees, agents and volunteers shall be excess of the Contractor's insurance and
shall not be called upon to contribute with it in any way.
(B) Automobile Liability. The automobile liability policy
shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents
and volunteers shall be covered as additional insureds with respectto the ownership, operation,
maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the
Contractor or for which the Contractor is responsible; and (2) the insurance coverage shall be
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primary insurance as respects the City, its directors, officials, officers, employees, agents and
volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Contractor's
scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its
directors, officials, officers, employees, agents and volunteers shall be excess of the
Contractor's insurance and shall not be called upon to contribute with it in any way.
(C) Workers' Compensation and Employers Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its
directors, officials, officers, employees, agents and volunteers for losses paid underthe terms of
the insurance policy which arise from work performed by the Contractor.
(D) All Coverages. Each insurance policy required by
this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided,
reduced or canceled except after thirty (30) days prior written notice by certified mail, return
receipt requested, has been given to the City; and (B) any failure to comply with reporting or
other provisions of the policies, including breaches of warranties, shall not affect coverage
provided to the City, its directors, officials, officers, employees, agents and volunteers.
3.2.10.4 Separation of Insureds: No Special Limitations. All
insurance required by this Section shall contain standard separation of insureds provisions. In
addition, such insurance shall not contain any special limitations on the scope of protection
afforded to the City, its directors, officials, officers, employees, agents and volunteers.
3.2.10.5 Deductibles and Self-Insurance Retentions. Any deductibles
or self-insured retentions must be declared to and approved by the City. Contractor shall
guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the City, its directors, officials, officers,
employees, agents and volunteers; or (2) the Contractor shall procure a bond guaranteeing
payment of losses and related investigation costs, claims and administrative and defense
expenses.
3.2.10.6 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in
California, and satisfactory to the City.
3.2.10.7 Verification of Coverage. Contractor shall furnish City with
original certificates of insurance and endorsements effecting coverage required by this
Agreement on forms satisfactory to the City. The certificates and endorsements for each
insurance policy shall be signed by a person authorized by that insurer to bind coverage on its
behalf, and shall be on forms provided by the City if requested. All certificates and
endorsements must be received and approved by the City before work commences. The City
reserves the right to require complete, certified copies of all required insurance policies, at any
time.
3.2.11 Safety. Contractor shall execute and maintain its work so as to avoid injury
or damage to any person or property. In carrying out its Services, the Contractor shall at all
times be in compliance with all applicable local, state and federal laws, rules and regulations,
and shall exercise all necessary precautions for the safety of employees appropriate to the
nature of the work and the conditions under which the work is to be performed. Safety
precautions as applicable shall include, but shall not be limited to: (A) adequate life protection
and life saving equipment and procedures; (B) instructions in accident prevention for all
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employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders,
bridges, gang planks, confined space procedures, trenching and shoring, equipment and other
safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent
accidents or injuries; and (C) adequate facilities forthe proper inspection and maintenance of all
safety measures.
3.2.12 Retention of Records and Reports. The Contractor shall maintain the
following records and reports to assist the City in maintaining its record keeping requirements:
3.2.12.1 Records.
(A) Documentation of the income level of person and/or
families participating in or benefiting by the Contractor's program.
(B) Documentation of all CDBG funds received by City.
(C) Documentation of expenses as identified in the Bid.
Contractor must establish and maintain, on a current basis, an adequate accounting system in
accordance with generally accepted accounting principles and standards and OMB Circular A-
87. All expenditures must be documented by receipts, invoices, canceled checks, inventory
rerecords, or other appropriate documents for non-personnel cost, and time records for
personnel costs, which completely discloses the amount and nature of the expenditures.
(D) Any such other related records as City shall require.
3.2.12.2 Reports.
(A) Payment Request.
(B) Quarterly Performance Report. Contractor shall
submit to the City every three (3) months, quarterly reports, which shall be a statement
describing the steps and approaches taken to meet the specified goals. This report shall
include a project activity statement and shall include any program income, any joint funding, and
nonexpendable and expendable personal property purchased or leased with CDBG funds.
These reports must trace the CDBG funds award to a level of expenditure adequate to establish
that such funds have not been used in violation of the restrictions and prohibitions of applicable
law.
(C) Final Evaluation Report. Contractor shall annually
make available for inspection its performance, financial and all other records pertaining to
performance of this Agreement to authorized City and HUD personnel, and allow said personnel
to inspect and monitor its facilities and program operations, including the interview of Operation
Agency staff and program participants as required by the City. The Contractor agrees to submit
all data that are necessary to complete the Annual Performance Report in accordance with HUD
requirements and no later than fifteen (15) days prior to the expiration of this Agreement.
(D) Any such other reports as the City shall require.
3.2.13 Program Income. Contractor shall comply with the program income
requirements set forth in §570.504 (c). At the end of the Agreement expiration/termination,
Contractor shall remit all any program income balances (including investments thereof) held by
Contractor (except those needed for immediate cash needs, cash balances or a revolving loan
fund, cash balances from a lump sum drawdown, or cash or investments held for section 108
security needs).
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3.2.14 Reversion of Assets. Upon the expiration of the Agreement, Contractor
shall transfer to the City any CDBG funds on hand at the time of expiration and any accounts
receivable attributable to the use of CDBG funds, including any real property under the
Contractor's control that was acquired or improved in whole or in part with CDBG funds
(including CDBG funds provided to the Contractor in the form of a loan) in excess of $25,000 is
either:
(i) Used to meet one of the national objectives in §570.208 until five
years after expiration of the Agreement, or for such longer period of time as determined to be
appropriate by City; or
(ii) Not used in accordance with paragraph (b)(7)(i) of §570.503, un
which event the Contractor shall pay to the City an amount equal to the current market value of
the property less any portion of the value attributable to expenditures of non-CDBG funds forthe
acquisition of, or improvement to, the property. The payment is program income to the City (No
payment is required after period of time specified in §570.503(b)(7)(i)).
3.2.15 Uniform Administrative Requirements. The Contractor shall comply with
applicable uniform administrative requirements as described in 24 C.F.R. 570.502.
3.2.16 Compliance with Apolicable Laws. Contractor agrees to comply fully with
al applicable federal, State and local laws, ordinances, regulations, and permits, including but
not limited to federal CDBG financial and contractual procedures, and OMB Circular Nos. A-87,
A-133, and A-110 with Attachments A, B, C, F, H, N, and O, as set forth in 24 C.F.R 570.502(b).
Said federal documents are on file at the City, and are incorporated herein by reference. The
Contractor shall secure any new permits required by authorities herein with jurisdiction over the
project, and shall maintain all presently required permits. The Contractor shall ensure that the
requirements of the California Environmental Quality Act are met for any permits or other
entitlements required to carry out the terms of this Agreement.
3.2.17 Political Activities. The Contractor is prohibited from using funds provided
herein or personnel employed in the administration of the program for political activities as
defined in C.F.R 570.207(a)(3), lobbying, political patronage, and nepotism activities.
3.2.18 Affirmative Action Policy.
3.2.18.1 Provisions of Program Services
(A) Contractor shall not on the ground of race, color,
national origin or sex, exclude any person from participation in, deny any person the benefits or,
or subject any person to discrimination under any program or activity funded in whole or in part
with CDBG funds.
(B) Contractor shall not under any program or activity
funded in whole or in part with CDBG funds, on the ground of race, color, national origin, or sex:
1. Deny any facilities, services, financial aid or
other benefits provided the program or activity.
2. Provide any facilities, services, financial aid or
other benefits which are different or are provided in a different form from that provided to others
under the program or activity.
3. Subject to segregated or separate treatment
in any facility in, or in any matter or process related to receipt of any service or benefit under the
program or activity.
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4. Restrict in any way access to, or in the
enjoyment of any advantage or privilege enjoyed by others in connection with facilities, services,
financial aid or other benefits under the program or activity.
5. Treat an individual differently from another in
determining whether the individual satisfies any admission, enrollment, eligibility, membership,
or other requirement or condition which the individual must meet, in order to be provided any
facilities, services or other benefit provided under the program or activity.
6. Deny an opportunity to participate in a
program or activity as an employee.
(C) Contractor may not utilize criteria or methods of
administration which have the effective of subjecting individuals to discrimination on the basis of
race, color, national origin, or sex, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program or activity with respect to individuals of a
particular race, color, national origin, or sex.
(D) Contractor, in determining the site or location of
housing or facilities provided in whole or in part with CDBG funds, may not make selections of
such site or location which have the effect of excluding individuals from, denying from the
benefits or, or subjecting them to discrimination on the ground of race, color, national origin, or
sex, or which have the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the Civil Rights Act of 1964 and amendments thereto.
(E) In administering a program or activityfunded in whole
or in part with CDBG funds regarding which the Contractor has previously discriminated against
persons on the grounds of race, color, national origin or sex, the Contractor musttake affirmative
action to overcome the effects or prior discrimination.
Even in the absence of such prior discrimination, a
Contractor in administering a program or activity funded in whole or in part with CDBG funds
should take affirmative action to overcome the effects of conditions which would otherwise result
in limiting participation by persons of a particular race, color, national origin or sex. Where
previous discriminatory or usage tends on the ground of race, color national origin, or sex to
exclude individuals from participation in, to deny them the benefits or, or to subject them to
discrimination under any program or activity to which CDBG funding applies, the Contractor has
an obligation to take reasonable action to remove or overcome the consequences or the prior
discriminatory practice or usage, and to accomplish the purpose of the Civil Rights Act of 1964.
Contractor shall not be prohibited by this part from
taking any eligible action to ameliorate an imbalance in service or facilities provided to any
geographic area or specific group of persons within its jurisdiction where the purpose of such
action is to overcome prior discriminatory practice or usage.
(F) Notwithstanding anything to the contrary in Section
3.2.18.1 (A)-(E) nothing contained herein shall be construed to prohibit any Contractor from
maintaining or constructing separate living facilities or rest room facilities for different sexes.
Furthermore, selectivity on the basis of sex is not prohibited when institutional or custodial
services can properly be performed by a member of the same sex as the recipients of the
services.
3.2.18.2 Employment Discrimination
(A) Contractor shall not discriminate against any
employee or application for employment because of race, color, religion, sex, national origin,
age, familial status or handicap. Contractor shall take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without regard to
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their race, color, religion, sex, national origin, age, familial status or handicap. Such action shall
include, but not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination, rate of pay or other forms of
compensation and selection for training including apprenticeship. Contractor agrees to post in a
conspicuous place available to employees and applicants for employment, notices setting forth
the provisions of this non-discrimination clause.
(B) Contractor shall, in all solicitations or advertisements
for employees placed by or on behalf of Contractor, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, national origin, age,
familial status or handicap.
(C) Contractor shall send to each labor union or
representative of workers with which it has a collective bargaining agreement or other contract
or understanding, a notice to be provided by City's contracting officers advising the labor union
or workers' representative of Contractor's commitments under Section 202 of Executive Order
No. 11246 of September 24, 1965, and shall post copies of the notices in a conspicuous place
available to employees and applicants for employment.
(D) Contractor shall comply with all provisions of
Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant
orders of the Secretary of Labor.
(E) Contractor shall furnish to the City all information and
reports required by Executive Order 11246 or September 24, 1965, and by the related rules,
regulations, and orders.
(F) In the event of Contractor's failure to comply with any
rules, regulations, or order required to be complied with pursuant to this Contract, City may
cancel, terminate, or suspend in whole or in part its performance and Contractor may be
declared ineligible for further Government contracts in accordance with procedures authorized in
Executive Order No. 11246 or September 24, 1965, and such other sanctions as may be
imposed and remedies invoked as provided in Executive Order No. 11246 or September 24,
1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(G) Contractor shall include the provisions of Section
3.2.18.2(A)-(F) in every sub-contract or purchase order unless exempted by rules, regulations,
or order of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246
or September 24, 1965, so that such provisions will be binding upon each subcontractor rider as
the City may direct as a means of enforcing such provisions including sanctions for non-
compliance. Provided, however, that is the event Contractor becomes involved in, or is
threatened with, litigation with a sub-contractor or vender as a result of such direction by the
City, Contractor may request the United States to enter into such litigation to protect the interest
of the United States.
(H) Contractor shall not discriminate on the basis of age
in violation of any provision of the Age Discrimination Action of 1975 (42 U.S.C. 6101 et seq.) or
with respect to any otherwise qualified handicapped individual as provided in Section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794).
(1) Contractor shall also provide ready access to and
use of all CDBG fund assisted buildings to physically handicapped persons in compliance with
the standards established in the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.) and
with the requirements of the Americans with Disabilities Act (ADA).
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3.2.18.3 Remedies. In the event of Contractor's failure to comply
with any rules, regulations, or orders required to be complied with pursuant to this Agreement,
City may cancel, terminate, or suspend in whole or in part its performance and Contractor may
be declared ineligible for further government contracts and any such other sanctions as may be
imposed an remedies invoked as provided by law.
3.2.19 Ineligibility of Contractors. Contractor shall not use CDBG funds directly or
indirectly in its operations or to comply, award contracts to, or otherwise engage the services of,
or fund any contractor during any period of debarment, suspension, or placement in ineligibility
status of any contractor under the provisions of 24 C.F.R. Part 24.
3.2.20 Assignability. Contractor shall not assign or transfer any interest in this
Agreement, whether by assignment, delegation or novation, without the prior written consent of
City; provided, however, that claims for money due or to become due to Contractor from City
under this Agreement may be assigned to a bank, trust company or other financial institution, or
to a trustee in bankruptcy, without such approval. Any assignment, delegation or novation other
that as provided above shall be void, and inoperative. Notice of any proper assignment or
transfer shall be promptly furnished to City.
3.2.21 Conditions for Religious Organization. Contractor shall comply with all
applicable conditions prescribed by HUD for the use of CDBG funds by religious organization if
Contractor is a religious organization.
3.2.22 Licensing. Contractor agrees to obtain and maintain all licenses,
registrations, accreditation and inspections from all agencies governing its operations.
Contractor shall ensure that its staff shall also obtain and maintain all required licenses,
registration, accreditation and inspections from all agencies governing contractors funded
hereunder.
3.2.23 Conflict of Interest. In the procurement of supplies, equipment,
construction, and services by contract, the conflict of interest provisions in Attachment O of OMB
Circular No. A-110 and 24 C.F.R. 570.611 shall apply.
3.2.24 Other Program Requirements. Contractor shall carry out contract activities
in compliance with all Federal laws and regulations described in subpart K of the CDBG
Regulations, except the following:
(i) Contractor does not assume the City's environmental
responsibilities described at §570.504; and
(ii) Contractor does not assume City's responsibility for initiating the
review process under the provision of 24 CFR part 52.
3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement. The total
compensation shall not exceed $
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3.3.2 Payment of Compensation. Contractor shall submit to City a monthly
itemized statement which indicates work completed and hours of Services rendered by
Contractor. The statement shall describe the amount of Services and supplies provided since
the initial commencement date, or since the start of the subsequent billing periods, as
appropriate, through the date of the statement. City shall, within 45 days of receiving such
statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed for any
expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Contractor perform Extra Work. As used herein, "Extra Work" means any work
which is determined by City to be necessary for the proper completion of the Project, but which
the parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Contractor shall not perform, nor be compensated for, Extra Work without written authorization
from City's Representative.
3.3.5 Prevailing Wages. Contractor is aware of the requirements of California
Labor Code Section 1720, et sue., and 1770, et sec as well as California Code of Regulations,
Title 8, Section 1600, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing
wage rates and the performance of other requirements on "public works" and "maintenance"
projects. If the Services are being performed as part of an applicable "public works" or
"maintenance' project, as defined by the Prevailing Wage Laws, and if the total compensation is
$1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall
provide Contractor with a copy of the prevailing rates of per diem wages in effect at the
commencement of this Agreement. Contractor shall make copies of the prevailing rates of per
diem wages for each craft, classification or type of worker needed to execute the Services
available to interested parties upon request, and shall post copies at the Contractor's principal
place of business and at the project site. Contractor shall defend, indemnify and hold the City,
its elected officials, officers, employees and agents free and harmless from any claim or liability
arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Contractor shall maintain complete and
accurate records with respect to all costs and expenses incurred under this Agreement. All
such records shall be clearly identifiable. Contractor shall allow a representative of City during
normal business hours to examine, audit, and make transcripts or copies of such records and
any other documents created pursuant to this Agreement. Contractor shall allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of
three (3) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement. This Agreement may be terminated by either
party without cause upon thirty-(30) day's written notice. City shall be responsible for payment
for work performed prior to the time such notice is given, but not for work performed after the
notice if given, unless such work is requested in writing by City after the notice of termination.
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3.5.1.1 Suspension and Termination. In accordance with 24 CFR
85.43, suspension or termination may occur if Contractor materially fails to comply with any term
of the Agreement, and that the Agreement may be terminated for convenience in accordance
with 24 CFR 85.44.
3.5.1.2 Effect of Termination. If this Agreement is terminated as
provided herein, City may require Contractorto provide all finished or unfinished Documents and
Data and other information of any kind prepared by Contractor in connection with the
performance of Services under this Agreement. Contractor shall be required to provide such
document and other information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms and in
such manner as it may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose.
CONTRACTOR:
Attn:
CITY:
City of Rosemead
8838 East Valley Boulevard
Rosemead, California 91770
Attn: Michelle G. Ramirez, Economic Development Administrator
Such notice shall be deemed made when personally delivered or when mailed, forty-eight
(48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party
at its applicable address. Actual notice shall be deemed adequate notice on the date actual
notice occurred, regardless of the method of service.
3.5.3 Compliance with Federal and State Law and Certification and Assurances.
Contractor stipulates that it understands that the funds for this Contract are originally provided
by the Federal Government and that consequently the expenditure of these funds is subject to
specific requirements set forth in various Federal regulations and agreements between the City
and U.S. Department of Housing and Urban Development.
In particular, this Agreement is subject to requirements contained in 24 Code of Federal
Regulations Part 570 and Title I of the Housing and Community Development Act of 1974 and
its amendments.
CONTRACTOR and City agree to cooperate to the fullest extent possible to insure compliance
with all Federal requirements. Contractor further warrants that it will comply with the following
requirements:
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(A) Compliance with Section 3 of the Housing and Urban Development Act of 1968.
(B) Requirements relating to equal employment opportunities..
(C) Requirements relating to the maintenance of a drug-free workplace.
(D) Compliance with Federal Labor Standards.
(E) Requirements forbidding interests of certain Federal officials.
(F) Compliance with the Clean Air Act, as amended, 42 USC 1857 et seq., the
Federal Water Pollution Control Act, as amended, 33 USC 1251 et. seq., and EPA regulations in
40 CFR Part 40, as amended.
(G) Requirements forbidding interests in this Contract by City and local government
officials.
(H) Compliance with program income and property management standards as
defined in Federal Office of Management and Budget Circular A-102.
(1) Program income - Transfers of grant funds by the City to the Contractor shall be
adjusted according to the principles described in 24 C.F.R. 507.504 (b)(2)(1) and (ii). Any
program income on had when this agreement expires, or received after this Agreement's
expiration, shall be paid to the City as required by Section A-15 of this Agreement and 24 C.F.R.
507.503(b).
(J) Compliance with applicable uniform administrative requirements as described in
24 CFR Part 570.502(a) and (b).
(K) Compliance with all Federal laws and regulations described in 24 CFR Part 570 at
Subpart K of these regulations except that:
1. The Contractor does not assume the City's environmental
responsibilities described at Section 570.604 of 24 CFR Part 570.
2. The Contractor does not assume the City's responsibility for
initiating the review process under the provisions of 24 CFR Part 52.
(L) Upon expiration of this Agreement, the Contractor shall transfer to the City any
Community Development Block Grant (CDBG) funds on hand at the time of expiration and any
accounts receivable attributable to the use of CDBG funds. Any real property under the
Contractor's control that was acquired or improved in whole or in part with CDBG funds in
excess of $25,000 must be either: (1) used to meet one of the National Objectives in Section
570.91 of 24 CFR Part 570 until five years after the expiration of this agreement; or (2) disposed
of in a manner that results in the City being reimbursed in the amount of the current fair market
value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the
property.
(M) Other Federal Acts applicable to projects funded with Community Development
Block Grant Funds.
3.5.4 Ownership of Materials and Confidentiality.
3.5.4.1 Documents & Data Licensing of Intellectual Property. This
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or
sublicense any and all copyrights, designs, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, and other documents or works of authorship fixed
in any tangible medium of expression, including but not limited to, physical drawings or data
magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be
prepared by Contractor under this Agreement ("Documents & Data"). Contractor shall require
all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license
for any Documents & Data the subcontractor prepares under this Agreement. Contractor
represents and warrants that Contractor has the legal right to license any and all Documents &
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Data. Contractor makes no such representation and warranty in regard to Documents & Data
which were prepared by design professionals otherthan Contractoror provided to Contractor by
the City. City shall not be limited in any way in its use of the Documents and Data at any time,
provided that any such use not within the purposes intended by this Agreement shall be at City's
sole risk.
3.5.4.2 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Contractor in
connection with the performance of this Agreement shall be held confidential by Contractor.
Such materials shall not, without the priorwritten consent of City, be used by Contractor for any
purposes other than the performance of the Services. Nor shall such materials be disclosed to
any person or entity not connected with the performance of the Services or the Project. Nothing
furnished to Contractor which is otherwise known to Contractor or is generally known, or has
become known, to the related industry shall be deemed confidential. Contractor shall not use
City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or
the Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of City.
3.5.5 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.6 Attorney's Fees. If either party commences an action against the other
party, either legal, administrative or otherwise, arising out of or in connection with this
Agreement, the prevailing party in such litigation shall be entitled to have and recover from the
losing party reasonable attorney's fees and all other costs of such action.
3.5.7 Indemnification. Contractor shall defend, indemnify and hold the City, its
officials, officers, employees, volunteers and agents free and harmless from any and all claims,
demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to
property or persons, including wrongful death, in any manner arising out of or incident to any
alleged acts, omissions or willful misconduct of Contractor, its officials, officers, employees,
agents, Contractors and contractors arising out of or in connection with the performance of the
Services, the Project or this Agreement, including without limitation the payment of all
consequential damages and attorneys fees and other related costs and expenses. Contractor
shall defend, at Contractor's own cost, expense and risk, any and all such aforesaid suits,
actions or other legal proceedings of every kind that may be brought or instituted against City, its
directors, officials, officers, employees, agents or volunteers. Contractor shall pay and satisfy
any judgment, award or decree that may be rendered against City or its directors, officials,
officers, employees, agents or volunteers, in any such suit, action or other legal proceeding.
Contractor shall reimburse City and its directors, officials, officers, employees, agents and/or
volunteers, for any and all legal expenses and costs incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify
shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials,
officers, employees, agents or volunteers.
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3.5.8 Entire Agreement. This Agreement contains the entire Agreement of the
Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by
both Parties.
3.5.9 Governing Law. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Los Angeles County.
3.5.10 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.5.11 City's Right to Employ Other Contractors. City reserves right to employ
other Contractors in connection with this Project.
3.5.12 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
3.5.13 Assignment or Transfer. Contractor shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein without the
prior written consent of the City. Any attempt to do so shall be null and void, and any assignees,
hypothecates or transferees shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer.
3.5.14 Construction: References: Captions. Since the Parties or their agents
have participated fully in the preparation of this Agreement, the language of this Agreement shall
be construed simply, according to its fair meaning, and not strictly for or against any Party. Any
term referencing time, days or period for performance shall be deemed calendar days and not
work days. All references to Contractor include all personnel, employees, agents, and
subcontractors of Contractor, except as otherwise specified in this Agreement. All references to
City include its elected officials, officers, employees, agents, and volunteers except as otherwise
specified in this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or describe the
scope, content, or intent of this Agreement.
3.5.15 Amendment: Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.16 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
3.5.17 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.18 Invalidity: Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
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3.5.19 Prohibited Interests. Contractor maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Contractor, to solicit or secure this Agreement. Further, Contractor warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other
consideration contingent upon or resulting from the award or making of this Agreement.
Contractor further agrees to file, or shall cause its employees or subcontractors to file, a
Statement of Economic Interest with the City's Filing Officer as required under state law in the
performance of the Services. For breach or violation of this warranty, City shall have the right to
rescind this Agreement without liability. For the term of this Agreement, no member, officer or
employee of City, during the term of his or her service with City, shall have any direct interest in
this Agreement, or obtain any present or anticipated material benefit arising there from.
3.5.20 Equal Opportunity Employment. Contractor represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee or
applicant for employment because of race, religion, color, national origin, handicap, ancestry,
sex or age. Such non-discrimination shall include, but not be limited to, all activities related to
initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff
or termination. Contractor shall also comply with all relevant provisions of City's Minority
Business Enterprise program, Affirmative Action Plan or other related programs or guidelines
currently in effect or hereinafter enacted.
3.5.21 Labor Certification. By its signature hereunder, Contractor certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require every
employer to be insured against liability for Worker's Compensation or to undertake self-
insurance in accordance with the provisions of that Code, and agrees to comply with such
provisions before commencing the performance of the Services.
3.5.22 Authority to Enter Agreement. Contractor has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each
Party warrants that the individuals who have signed this Agreement have the legal power, right,
and authority to make this Agreement and bind each respective Party.
3.5.23 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Contractor shall not subcontract any portion of
the work required by this Agreement, except as expressly stated herein, without prior written
approval of City. Subcontracts, if any, shall contain a provision making them subject to all
provisions stipulated in this Agreement.
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IN WITNESS WHEREOF, City and Contractor have caused this Agreement to be
executed by their duly authorized representatives. This Agreement is effective as of July 1,
2010.
CITY OF ROSEMEAD
BY:
Jeff Allred
City Manager
Attest:
By:
Gloria Molleda
City Clerk
Approved as to Form:
By:
BY:
Joseph M. Montes
Burke, Williams & Sorensen, LLP
Commission General Counsel
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EXHIBIT A
SCHEDULE OF SERVICES