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HomeMy WebLinkAbout14. Approve PSA w-Disability Access Consultants for On-Call Svcs Associated w-ADA Transition Plan & ADA effortsILUM 114U. APPROVED BY TO: HONORABLE MAYOR AND MEMBERS OFT CITY COU CIL MANAGER FROM: OFFICE OF THE CITY MANAGER BY: VANIAH DE ROJAS, ASSISTANT TO THE CITY MANAGER SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH DISABILITY ACCESS CONSULTANTS FOR PROFESSIONAL ON-CALL SERVICES ASSOCIATED WITH THE CITY'S ADA TRANSITION PLAN AND ADA EFFORTS That the City Council approve the Professional Services Agreement with Disability Access Consultants (DAC) for professional on-call services associated with the City's ADA transition plan and ADA efforts. In October 2016, the City Council approved an agreement with DAC to prepare a sel -eva uatio and transition plan by conducting inspection of City buildings, right-of-ways and sites wher- programs services and activities are provided to the public to ensure access to persons wit disabilities. On March 14, 2017, June 13, 2017, and August 8, 2017 the agreement wa amended to include inspections of additional City parks, sidewalks and curb ramps that wer not included in DAC's original scope of work, and to assist the City in prioritizing non_complia areas in order to determine projected completion dates. On January 23, 2018, the City Council received and filed the City of Downey's ADA sel'i evaluation and transition plan. In October of each year, the Plan is reviewed, updated an submitted to the City Council to receive and file. The last transition plan update was submitte to the City Council on October 23, 2018. Fbj&�_Mrem As the City continues to make progress and update its transitional plan, the City will need professional assistance when inspecting new areas that fall under the City's jurisdiction or re - inspecting areas that may have changed, and ensuring those areas are incorporated into the City's transition plan. Additionally, the City receives ADA accommodation requests that may need additional ADA expertise or is seeking guidance on ADA compliant purchases and designs for future projects or tasks. Due to DAC's familiarity with the City's transon plan and expertise in ADA compliance, it is beneficial for the City to have DAC on an on-call basis to help address items related to the City's transition plan and ADA efforts. PROFESSIONAL SERVICES AGREEMENT WITH DISABILITY ACCESS CONSULTANTS JUNE 25, 2019 PAGE 2 FISCAL IMPACT The cost for services will be on an as -need basis at the following rates with total compensation not exceeding $20,000 without written approval of the City: Off-site consultation and services is $150 per hour. On-site consultation is $180 per hour, plus expenses and travel time. CITY COUNCIL PRIORITIES Fiscal Responsibility Quality of Life, Safety and Infrastructure ATTACHMENT Attachment A — Professional Services Agreement with Disability Access Consultants 1. PARTIES AND DATE. 9th day of May, 2019 by and between This Agreement is made and entered into this 2 the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California 90241 ("City") and Disability Access Consultants, a California corporation, with its principal place of business at 2862 Olive Highway, Suite D., Oroville, CA 95966 ("Consultant"). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties." 2. RECITALS. 0 1 . City desires to engage Consultant to render such services for on an on-call basis to assist the City with items related to its transition plan and ADA efforts ("Project") as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.2 Term. The term of this Agreement shall be from July 1, 2019 to June 30, 2021, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. The term of this Agreement may be extended by written amendment to this Agreement signed by the City Manager and the Consultant. 3.2.1 Control and Pa meat of Subordinates Inde endet Contractor. The Services shall be performed b consultant or under its supervision. Consultant will determine the means; methods end details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant 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 Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant 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. Consultant 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. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public;Employees Retirement System CaIPE Sj to be eligible for enrollment in CaIPERS, as an employee of City, Consultant shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer' contributions for CalPERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. 3.2.2 Schedule of Services. Consultant 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. Consultant represents' that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide' a more detailed schedule of anticipated performance to meet the Schedule of Services. The parties acknowledge that the Schedule of Services may be amended by mutual agreement due to changes in circumstances, including changes in the performance schedules of other third parties performing work for the City on the Project, which affect the timing of Consultant's performance of the Services. 3.2.3 Conformance to AlicableRe uirements. All work prepared by Consultant shall be subject to the approval of City, 2 3.2.4 _Substitution of fey personnel. Consultant 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, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant 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 Consultant at the request of the City. 3,266 City's Representative. The City hereby designates the 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 Contract. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.6 Consultant's Representative. Consultant hereby designates Barbara Thorpe or his or her designee, to act as its representative for the performance of this Agreement "Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant'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 for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services: Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care erformance'of Em to ees, Consultant shall perform all Servicesunderthis 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.. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant 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, Consultant 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 Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its -sub -consultants 3 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 safetyof persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Consultant and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law, Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify' and "hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable 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. Consultant's violation of such laws, rules and regulations shall also constitute a material breach of this Agreement. 3.2.10 Insurance. 3.2.'10:1 Time for C2mp iance. Consultant shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant 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. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. I A It'. VI I I• • • •_ - •, a .• - •IB• - . . _ • and 9 (non -owned); and (3) Workers' Compensation : Workers' Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer's Liability Insurance. (B) Minimum Limits of Insurance.; Consultant shall maintain limits no less than: (1) Commercial General Liability (CGL).- No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. if Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation: Workers' Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer's Liability: Employer's Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer's Liability coverage may be waived by the City if City receives written verification that Consultant has no employees. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City: 3.2.10.3 Professional Liabilit Errors & 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 Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial 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 insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work, Services, Project or operations- 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 Consultant's scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in 5 the form of an endorsement to the Consultant's insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 20 37 forms if later revisions are used). d ■ • �s,� �■ �rMi 1` #1 (C) 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 with written notice by certified mail, return receipt requested to the City; and () 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. 12.10.5 Primar Coyer,./4For any claims related to this Agreement, the Consultant's insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 1`3 with respect to the City, its directors; officials, officers, employees, agents and volunteers. 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. 3.2.10.6 Se aration of Insureds; No S ecial ;l_,imitationsa 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. 3.2.10.7 Deductibles _ and Seif-Insurance Detentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Consultant to provide proof of ability to pay losses and related investigations= claim administration and defense expenses and costs within the retention, The policy language` shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City. 3.2.10.8 ccetabilit r of Insurers• Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, authorized to do business in California, and satisfactory to the City. 3.2.10.9 verification of Covera e. Consultant shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of 6 the Declarations and Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Consultant's obligation to provide them to the City, The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time. 3.2.10.10 Claims -Made Policies. If any of the policies provide coverage on a claims -made basis. (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement;.(C) If coverage is canceled, non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant 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 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 for the proper inspection and maintenance of all safety measures. 3.3 Fees ,- 3.3.1 P 3.3.1 qgMpg�nsafion- Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall not exceed twenty thousand dollars ($20,000) without written approval of the City. Extra Work may be authorized, as described below, and if authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement. 3.3.2 lea merit of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided 7 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 thirty (30) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Beim bu rsement_for Expenses. Consultant 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 Consultant 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, Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager, I a 0 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant 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, Consultant 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. TOM" 3.5.1 Termination of.Agreement, 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Consultant may only terminate this Agreement for cause upon giving the City not less than seven (7) calendar days' written notice. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. The City shall within fifteen (15) calendar days following termination pay the Consultant for all services adequately rendered and all reimbursable costs incurred by Consultant up to the date of termination, in accordance with the payment provisions of this Agreement. The following reasons shall constitute "cause" for which either party may terminate this Agreement as provided herein: 8 • Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; • Suspension of the Project or the Consultant's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 3.5.1.2 Effect of Termination. If this Agreementis terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by 'Consultant in connection with the performance of Services under this Agreement:', Consultant shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's 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 Delive 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: mo Disability Access Consultants 2862 Olive Highway, Suite D Oroville, California 95966 Phone: (800) 743-7067 Attn: Barbara Thorpe, President City of Downey 11111 Brookshire Avenue Downey, California 90241 Phone: (562) 904-7286 Attn: City Manager With a courtesy copy toy City of Downey 9 City Attorney's Office 11111 Brookshire Avenue Downey, California 90241 3.5.3.1 Documents & Data, Licensing of Intellectual Pro ert . 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 Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by designprofessionals other thanConsultantor provided to Consultant by the City, City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk.. 3.5.3.E 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 Consultant in connection with the performanceofthis Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant 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 Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant 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. 3.5.4 Ceaoeration; 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. 10 3.5.5 Attorneys Fees, In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover" from the non -prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation. 3.5.6 Indemnification. 3.5.6.1 General Indemnification. Except as provided in subdivision 3.5.6.2 below which is applicable t "design professionals" only, Consultant shall defend (with counsel acceptable to City), 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 negligent acts, errors, omissions or willful misconduct of Consultant, Its officials, officers, employees, agents, consultants 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. Consultant shall defend, at Consultant'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. Consultant 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. Consultant 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 therewithorin enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Consultant shall not be obligated to defend; indemnify ° or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct. 3.5.6.2 Des i 1n Professionals. The provisions of this subdivision 3.5.6.2 shall apply only in the event that Consultant is a "design professional" within the meaning of California Civil Code section 278.8(c): If Consultant is a "design professional within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6,1 above, to the fullest extent permitted bylaw (including, without limitation, Civil Code sections 2782 and 2782.6), Consultant shall defend (with legal counsel reasonably acceptable to City), indemnify and hold harmless City and City's officers, officials, employees, volunteers and agents from and against any Claire that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Consultant, any subconsultant, subcontractor or any other person directly or indirectly employed by thein, or any person that any of them control, arising out of Consultant's performance of any task or service for or on behalf of City under this Agreement. Such obligations to defend, hold harmless and indemnify City or any City officers,; officials, 11 employees or volunteers shall not apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Consultant's cost to defend City and/or City's officers, officials, employees or volunteers against any such Claim shall not exceed Consultant's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Consultant shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Consultant has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Consultant shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from Consultant's negligence, recklessness or willful misconduct. 3.5.7 Entire _AgLeement, This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assig[js. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. 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. 3.5.13 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 Consultant include all personnel, employees, agents, and subcontractors of Consultant, 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. 12 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.. 3.5.15 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. 3.5.16 NoThirdPart Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17lnvaliditt; 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. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant 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 Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. 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 interestinthis Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Egual Cnbortunity Ernplo Ment. Consultant 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. Consultant shall also comply with all relevant provisions of any City Minority Business Enterprise program, Affirmative Action Plan or other related programsor guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant 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.: 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each 13 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. 3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. 3.5.23 Effect of Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 3.6.1 Prior Aroval Feouied. Consultant shall not subcontract any portion of the work requiredby this Agreement, except as expressly stated herein, without prior written approval of City. Consultant shall require; and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Consultant shall ensure that City is an additional insured as required in Section 3.2.10.4. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF r• California•corporation • charter city By: Mayor Attest City Clerk Approved as to Form.- ty Attorney By; Barbara Thorpe Its.. '�� Kai`°°`f President Attest: Secretary Approved as to Form: Legal Counsel 14 m EXHIBIT "A" SCOPE OF SERVICES AND COMPENSATION ifi Vaniah De Rojas- City ojasCity of Downey 11111 Brookshire Avenue Downey, CA 90241 DAC Services Disability Access Consultants, LLC (DAC) will provide the following services as requested by the City of Downey. DAC is able to provide the following services including but not limited to: • Expert witness services and assistance with litigation response; • Meeting with designated City staff on site to provide in person consultation and assistance; • Providing on-site and off-site consultation as requested; • Assisting the City to update the overall implementation plan in DACTrak; • Providing accessibility revie%)s of plans; • Providing other related accessibility services as requested by the City. Cost for services on an as -needed basis The fee for off-site consultation and services is $150 per hour. The fee for on-site consultation is $180, plus expenses and travel time. Cost A not -to -exceed cost of $20,000. I Submitted and authorized by: Barbara Thorpe, President Disability Access Consultants (DAC) 2862 Olive Highway, Suite D Oroville, CA 95966 P: 530-533-3000 F: 530-533-3001 jjtnor)e�dac-c�or-co�nl T 40 CERTIFICATE F LIABILITY INSURANCE DATE / 03!/1818(22019019 Y, THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER coNracT Cell Provo NAM E. AssuredPartners of Minnesota LLC PHONE NE ezl : (651) 644-7200 Aic; Na ; (651) 644-9137 2361 Hwy 36 W A-MAIRL - cprovo@apminnesota.com INSURER(SI AFFORDING COVERAGE NAIC # St. Paul MN 55113 INSURERA: Continental Cas Cc 20443 INSURED INSURER B.. American Casualty Cc Reading 20427 Disability Access Consultants, LLC INSURER C: Transportation Ins Cc 20494 2243 Feather River Blvd INSURER o :- The Hartford 00914 INSURER E: Philadelphia Insurance Company 251 Orovllle CA 95965 INSURERF: COVERAGES CERTIFICATE NUMBER: 19120 Prof REVISION NUMBER: THIS IS TO CERTIFY THATTHE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ,LTR : TYPE OF INSURANCE ,NSP WVD'...-POLICYNUMBER MM RP YYY IMMIDD/YWY LIMITS COMMERCIAL GENERAL LIABILITY EACH. OCCURRENCE $.. 2,000,000 _u CLAIMS-MADE1:1 OCCUR PREMISES Ea occurrence) $ -300 000 MED EXP (Any one person) $ 10,000 A Y B6020052587 01/01/2019 01101/2020 PERSONAL &, ADV INJURY $ 2,000,000 GEN'L,ACREGATE LIMITAPPLIES PER: GENERAL AGGREGATE $ 4,000,000 X POLICY El PR{�- LOC 4 000 000 JEcr PRODucTs coMProPAGG $ OTHER:- Employee Benefits $ 1,000,000 AUTOMOBILE LIABILITY C, momEbaiNGLE LIMN $ 1,000,000 _(9e a_JAMt ','.ANYAUTO BODILY INJURY (Per person) $ B OWNED SCHEDULED 6020004782 01/01/2019 01101/2020 BODILY INJURY (Per accident) $ AUTOS ONLY AUTOS HIRED NON -OWNED Pt10PIm.6iY DAMAGE:.:. $ '. AUTOS ONLY AUTOS ONLY Per r "dors Medical payments $ 5,000 x UMBRELLA LAB x OCCUR EACH OCCURRENCE $ 5,000,000 C EXCESS LAB CLAIMSMADE 66020052637 01(01(2019 01/01/2020 AGGREGATE $ 5,000000 -DED RETENTION 5.. ° - $ 'WORKERS COMPENSATION -_ - - PER OTH- AND EMPLOYERS' LIABILITY STATUTE ER Y/N 1,000,000 :ANY PROPRIETORIPARTNERtEXECUTIVE � E.L EACH ACCIDENT $ 1,000,000. ® OFFICER/MEMBER EXCLUDED? --.-�NIA 41 WBAC5W3P 01/08/2019 01/0812020 - (Mandatory in NH) _E:L. DISEASE- EA EMPLOYEE $ . If yes, describe under 1,000 000 DESCRIPTION OF OPERATIONS below _. E DISEASE POLICY LIMIT $ Professional Liability E I PHSD1429572 03/13(2019 03/13(2020 Limit $5,000,000 Deductible $10,000 DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) 30 day cancellation applies CERTIFICATE. HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Downey ACCORDANCE WITH THE POLICY PROVISIONS. 11111 Brookshire Avenue AUTHORIZED REPRESENTATIVE Downey CA 90241 ; ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD