Asian American Garden at Locke-Paddon Wetland Community Park.pdf

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1. INTRODUCTION

The City of Marina (City) is seeking landscape design services and fee proposals for the purpose of selecting an experienced and qualified landscape architectural consultant team to provide design, specifications, cost estimating, and construction support services for the Asian American Garden project at Locke-Paddon Wetland Community Park, located at 188 Seaside Cir, Marina, CA 93933, to be received by 4:00 p.m., Monday, September 28, 2026.

The professional services to be provided by the selected consultant shall be comprehensive and complete. The services will generally consist of:

i) Conducting pre-design meetings, site visits, data collection, and topographic survey services;

ii) Reviewing project goals and objectives with City staff and project stakeholders, including representatives from the Recreation and Cultural Services, Community

Development, and Public Works Departments, Monterey Peninsula Regional Park

District, and Asian Communities of Marina (ACOM);

iii) Preparing preliminary design documents based upon the Conceptual Illustrative Plan dated April 28, 2025, including 30 percent and 60 percent design submittals;

iv) Presenting the proposed design to the City Council and incorporating all comments necessary for review and approval;

v) Preparing final plans, technical specifications, and engineer’s estimates suitable for bidding, permitting, and construction;

vi) Providing bid support services during the contractor procurement process;

vii) Providing construction support services, including review of submittals, responses to requests for information, and site observations; and

viii) Providing project closeout services.

This project will be funded with local dollars from the City. The Consultant and their agents will be required to follow all pertinent local, state, and federal laws and regulations.

The proposals submitted in response to this RFQ will be used as a basis for selecting the Consultant for this project. The Consultant’s proposal will be evaluated and ranked according to the criteria provided in this RFQ.

Addenda to this RFQ, if issued, will be sent to all prospective Consultants that the City of Marina has specifically e-mailed a copy of the RFQ to and will be posted on the City of Marina’s website at:

https://www.cityofmarina.org/bids.aspx

It shall be the Consultant’s responsibility to check the City of Marina’s website to obtain any addenda that may be issued for this RFQ.

Proposals received after the time and date specified in the RFQ will be considered non-responsive and will be returned to the Consultant.

https://www.cityofmarina.org/bids.aspx

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Any proposals received prior to the time and date specified above may be withdrawn or modified by written request of the Consultant. To be considered, however, the modified Proposal must be received prior to the due date/time identified for the RFQ submittal deadline.

Unsigned proposals or proposals signed by an individual not authorized to bind the prospective

Consultant to an agreement with the City of Marina will be considered nonresponsive and rejected.

This RFQ does not commit the City of Marina to enter into an agreement, to pay any costs incurred in the preparation of a proposal for this request, or to procure services. The City of Marina reserves the right to accept or reject any or all proposals received in response to this request, to negotiate with any qualified Consultant, or to modify or cancel in part or in its entirety the RFQ if it is in the best interests of the City to do so. Furthermore, a decision to enter into an agreement will not be based on price, but on qualifications as set forth herein.

The prospective Consultant is advised that should this RFQ result in recommendation to enter into an agreement, the agreement will not be in force until it is approved and fully executed by the City of Marina.

All products used or developed in the execution of any agreement resulting from this RFQ will, to the maximum extent possible, remain in the public domain at the completion of the agreement.

Any questions related to this RFQ shall be submitted in writing to the attention of Scott Shepard, City Engineer, via email at sshepard@cityofmarina.org. Questions shall be submitted before 4:00 p.m. on Friday, September 4, 2026, 2026.

No oral questions or inquiry about this RFQ shall be accepted.

2. Optional Site Visit

An optional site visit will be held on Friday, August 28, 2026, at 10:00 a.m. at Locke-Paddon

Wetland Community Park, 188 Seaside Circle, Marina, CA 93933.

Attendance is voluntary but strongly encouraged. The purpose of the site visit is to familiarize prospective consultants with the project site and existing conditions. Statements made during the site visit are informational only and shall not modify the requirements of this RFQ. Any revisions or clarifications to this RFQ will be issued only through a written addendum.

3. PROJECT DESCRIPTION

PROJECT OVERVIEW

The project consists of Asian American-themed gardens organized around the Four Seasons concept. Proposed site improvements include universally accessible walkways, steps, bridges, benches, educational and interpretive features, meandering streams, waterfalls, ponds, decorative gateways, specimen boulders, meditation rock gardens, decorative paving, raised decking, a focal pavilion, and specialty specimen plantings.

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4. PROPOSED SCOPE OF SERVICES

The selected consultant team shall possess demonstrated experience and expertise in the planning and design of culturally significant Asian American gardens and similar public landscapes. Services shall include, but are not limited to, the following:

1. Pre-Design, Site Investigation, and Data Collection

• Conduct site visits and assess existing site conditions.

• Review project goals, objectives, and program requirements with City representatives and project stakeholders.

• Prepare or coordinate topographic survey services and collect information necessary for design development.

2. Preliminary Design

• Develop preliminary design documents based on the Conceptual Illustrative

Plan dated April 28, 2025, Attachment A.

• Prepare and submit 30 percent and 60 percent design packages, including exhibits and illustrations, for City review.

• Participate in stakeholder meetings and public presentations, including presentation to the City Council.

3. Final Plans, Specifications, and Cost Estimates

• Prepare complete construction documents suitable for permitting and bidding.

• Develop technical specifications and engineer’s estimates.

• Coordinate with regulatory agencies and support Coastal Zone permitting and

CEQA requirements as necessary.

4. Bid Support Services

• Assist the City during advertisement and bidding.

• Respond to bidder inquiries and prepare addenda as required.

• Assist in evaluating bids and making recommendations for award.

5. Construction Support Services

• Review contractor submittals and requests for information.

• Attend construction meetings and perform periodic site observations.

• Assist with interpretation of plans and specifications during construction.

6. Project Closeout

• Review punch-list items.

• Provide record drawings and closeout documentation as required.

• Assist the City with final project acceptance.

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Minimum Qualifications of Personnel: The selected consultant team shall demonstrate:

• Experience and knowledge in the design and interpretation of Asian gardens and cultural landscapes, with the ability to incorporate features that reflect and celebrate the diversity of Marina’s Asian communities.

• Experience with the selection, specification, and long-term maintenance requirements of specialty Asian plant materials suitable for the climatic, soil, and wind conditions present at Locke-Paddon Wetland Community Park.

• Experience with California native plants including a proportion of native species that can complement and/or blend into Asian aesthetics.

• Experience with soil preparation/soil amendments and weed abatement and rodent control.

• Experience with the planning, design, and operation of large-scale water features, including streams, ponds, and waterfalls, with emphasis on sustainability, reliability, water efficiency, and long-term maintenance, given environmental/permitting constraints of a wetland/coastal site.

• Experience with universally accessible park and landscape design.

• Familiarity with public agency projects, California permitting requirements, and coordination with multiple stakeholders.

The City intends to select a consultant team with the qualifications, experience, and technical expertise necessary to deliver a culturally meaningful, sustainable, and enduring public garden that will serve as a regional destination and celebrate the heritage and contributions of the Asian

American communities of Marina and Monterey County.

Equipment Requirements: Consultant shall provide the necessary equipment, tools and supplies to provide the required services. This may include mobile phones, laptops, manuals, office supplies, safety gear, etc.

Quality Control/Assurance Measures: Implementing and maintaining quality control procedures to manage conflicts, ensure product accuracy, and identify critical reviews and milestones.

Materials to be provided by the City: Unless otherwise specified in the agreement, the Consultant shall provide all materials to complete the required work in accordance with Agreement. Materials

(if deemed applicable, necessary, and when available from the City) that may be furnished or made available by the City and were listed in the agreement are for the Consultant’s use only, shall be returned at the end of the term of the agreement.

Conflict of Interest Requirements: Throughout the term of the agreement, the prime consultant and its Subconsultants shall disclose any financial or business relationship that may be deemed to cause a conflict of interest.

In addition to the disclosures, the Consultant shall also provide possible mitigation efforts, if any, to eliminate or avoid any actual or perceived conflicts of interest.

If a Consultant discovers a conflict during the execution of the agreement, the Consultant must immediately notify the Contract Manager regarding the conflicts of interest. The Contract Manager may remove from the agreement and scope of services involving the conflict of interest and may obtain the conflicted services in any way allowed by law. Failure by the Consultant to notify the

Contract Manager may be grounds for termination of the agreement.

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5. SUBMITTAL

A. Submittal contents

1. Email subject clearly notes the title of this solicitation, "Proposal” and due date/time.

Contents:

a. Proposal

Your proposal should contain the following information in the order listed:

1. Introductory Letter: The letter shall be on Consultant letterhead and include the Consultant’s contact name, mailing address, telephone number, and email address. The letter will address the

Consultant’s understanding of the services being requested and any other pertinent information the Consultant believes should be included. All Addenda received must be acknowledged in the transmittal letter.

The letter shall be signed in blue ink (scanned signature or e-signatures are acceptable) by the individual authorized to bind the Consultant to the proposal.

2. Executive Summary

3. Consultant Information, Qualifications, and Experience: The

City of Marina will only consider submittals from Consultants that demonstrate they have successfully completed comparable projects. These projects must illustrate the quality, type, and past performance of the project team. Submittals shall include a detailed description of a minimum of three (3) projects within the past five (5) years, along with resumes of all key staff proposed for this work. Provide resumes and references for all key team members. Resumes shall show relevant experience for the

Project’s Scope of Work, as well as the length of employment with the proposing Consultant. Key members, especially the Project

Manager, shall have significant demonstrated experience with this type of project, and should be committed to stay with the project for the duration of the project.

4. Organization and Approach: Describe the roles and organization of your proposed team for this project. Indicate the composition of subcontractors and number of project staff, facilities available and experience of your team as it relates to this project. Describe your project and management approach. Provide a detailed description of how the team and scope of work will be managed. Describe the roles of key individuals on the team.

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5. Scope of Work

1. Include a detailed Scope of Work Statement describing all services to be provided.

2. Describe project deliverables for your work.

3. Include a detailed schedule for all services to be provided.

4. Describe your cost control and budgeting methodology for this project.

6. Conflict of Interest Statement: The proposing Consultant shall disclose any financial, business or other relationship with the City that may have an impact upon the outcome of the contract. The

Consultant shall also list current clients who may have a financial interest in the outcome of this contract.

7. Litigation: Indicate if the proposing Consultant was involved with any litigation in connection with prior projects. If yes, briefly describe the nature of the litigation and the result.

8. Non-Discrimination Clause and Statement of Compliance:

The proposing Consultant shall review the non-discrimination clause and sign the statement of compliance form attached to this

RFQ as Exhibit B.

9. Contract Agreement: Indicate if the proposing Consultant has any issues or needed changes to the proposed contract agreement included as Exhibit C. Include any issues or needed changes in the separate cost proposal below.

The Consultant shall provide a brief statement affirming that the proposal terms shall remain in effect for ninety (90) days following the date proposal submittals are due.

b. Cost Proposal

The Cost Proposal shall identify a not-to-exceed fee for completion of the proposed services, including labor, Subconsultants, reimbursable expenses, and all other costs.

In order to assure that the City of Marina is able to acquire professional services based on the criteria set forth in the Brooks Act and Government

Code 4526, the proposal shall include a cost proposal for each service of the proposal. Cost proposal shall be submitted in a separate PDF file from the proposal. The cost proposal is confidential until after the qualifications ranking and will be used after all proposals have been reviewed, and most qualified consultant has been selected.

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B. Due Date/Time

Proposals will be received by the City’s Public Works

Department, until 4:00 p.m., Monday, September 28, 2026. Submit electronic proposals in PDF format via email to Scott Shepard, City

Engineer at sshepard@cityofmarina.org

6. PROCEDURES AND EVALUATION OF QUALIFICATIONS

A. Evaluation Criteria

An evaluation committee comprised of City staff and other stakeholders will review and evaluate technical qualifications against the following criteria:

1. Understanding of the City’s Goals and Unique Nature of the

Project (10% of selection consideration): Based on the information provided by the City and past experience in Marina, does the consultant understand the unique nature of Marina and of the Project?

2. Familiarity with Locality (10% of selection consideration): Does the consultant have familiarity with the City and the Project area necessary to successfully deliver the Project? How close are the consultant’s permanent offices to the Monterey Peninsula.

(Preference is to local or near-local consultants).

3. Specific Management Approach (20% of selection consideration):

How does the consultant intend to achieve the City’s budget and time goals for the Project? How will the consultant apply its management techniques and resources?

4. Experience (20% of selection consideration): Has the consultant demonstrated the ability to successfully provide services for the completion of projects of a similar complexity and nature as described herein?

5. Organization (15% of selection consideration): Are the qualifications of the consultant’s personnel suitable for the execution of the services required?

6. Reputation (15% of selection consideration): Are the consultant’s references from past clients and associates favorable?

7. Services Offered (10% of selection consideration): Does the consultant offer the breadth and quality of services required for this Project?

mailto:sshepard@cityofmarina.org

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B. Procedures

1. At completion of the review process, consultants will be ranked, and the most highly qualified ones will be placed on a short list for further evaluation. The City reserves the right to waive interviews and enter into an agreement with the highest ranked consultant.

2. Should a short list be prepared, the consultants on the short list may be invited for an interview and presentation process that will aid in making a final selection, as the City deems necessary. The presentation and interview session will not exceed one hour per proposer. Following the presentations/interviews, the evaluation committee will complete its ranking.

3. Fee negotiations begin with the highest ranked consultant. The final scope of services and cost proposal shall be established by mutual agreement between the City and the consultant. If no agreement can be reached, the first ranked consultant will be excused, and fee negotiations will begin with the second ranked consultant. This procedure will be followed until a proposer is selected.

4. Once a final selection is made, staff may elect to refine the scope of services and the fees with the selected consultant.

5. The City Council will authorize entering into an agreement with the best qualified consultant at a not to exceed cost mutually agreed upon by the City and consultant, and a formal agreement will be entered into by the consultant and the City.

6. The City of Marina reserves the right to reject any and all submittals and to reissue its request for qualifications. The City reserves the right to cancel resulting agreements at any point and pay the consultant only for costs incurred to that point and for work completed which is usable by the City as determined by the City.

7. POINT OF CONTACT

Interested consultants desiring additional information are asked to contact Scott

Shepard, City Engineer, sshepard@cityofmarina.org, (831) 384-4262.

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EXHIBIT A

Conceptual Illustrative Plan

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EXHIBIT B

NON-DISCRIMINATION CLAUSE AND

STATEMENT OF COMPLIANCE

(Must be signed and included with proposal)

NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE

The following language shall be incorporated into any agreement entered between

CONSULTANT’S and the CITY. The signature of the authorized representative for the firm submitting a statement of qualifications acknowledges that the firm has reviewed the Non-

Discrimination Clauses and Statements of Compliance and consents to inclusion in all contracts related to on-call professional services with the CITY.

A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and

2 CCR § 8103.

B. During the performance of this AGREEMENT, CONSULTANT and its Subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and Subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

C. CONSULTANT and Subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov.

Code §12990 (a-f), set forth 2 CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.

D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or

LOCAL AGENCY shall require to ascertain compliance with this clause.

E. CONSULTANT and its Subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.

F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.

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Signature of Authorized Representative:

Printed Name:

Title of Signer:

Date Signed:

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EXHIBIT C

EXAMPLE OF CITY OF MARINA

PROFESSIONAL SERVICES AGREEMENT

CITY OF MARINA

PROFESSIONAL SERVICES AGREEMENT

THIS AGREEMENT ("Agreement") is made and entered into as of , 20, by and between the City of

Marina, a California municipal corporation ("City"), and **_______________**, a ______________________

("Consultant"). The City and Consultant may be referred to individually as a "Party" and collectively as the

"Parties."

Recitals

A. City desires to retain Consultant to provide professional consulting services as described in this

Agreement.

B. Consultant represents that it possesses the qualifications, experience, personnel, and resources necessary to perform the required services.

C. Consultant represents that it possesses all licenses, registrations, certifications, and qualifications required by law to perform the services contemplated under this Agreement.

D. City desires to retain Consultant to provide such services under the terms and conditions of this

Terms and Conditions

For of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and in consideration of the mutual promises contained herein, City and Consultant agree to the following terms and conditions:

1. Scope of Work.

(a) Consultant is hereby hired and retained by the City to work in a cooperative manner with the City to fully and adequately perform those services set forth in Exhibit “A” attached hereto (“Scope of Work”) and by this reference made a part hereof. With prior written notice to Consultant, City may elect to delete certain tasks of the Scope of Work at its sole discretion.

(b) Consultant shall perform all such work with skill and diligence and pursuant to generally accepted standards of practice in effect at the time of performance. Consultant shall provide corrective services without charge to the City for work which fails to meet these standards and which is reported to Consultant in writing within sixty days of discovery. Should Consultant fail or refuse to perform promptly its obligations under this Agreement, the City may render or undertake the performance thereof and the Consultant shall be liable for any expenses thereby incurred.

(c) If services under this Agreement are to be performed by a design professional, as that term is defined in California Civil Code §2782.8(b)(2), design professional certifies that all design professional services shall be provided by a person or persons duly licensed by the State of California to provide the type of services described in Section 1(a). By delivery of completed work, design professional certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws, and the professional standard of care in California.

(d) Consultant is responsible for making an independent evaluation and judgment of all relevant conditions affecting performance of the work, including without limitation site conditions, existing facilities, soils, hydrologic, geographic, climatic conditions, applicable federal, state and local laws and regulations and all other contingencies or considerations.

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(e) City shall cooperate with Consultant and will furnish all information data, records and reports existing and available to City to enable Consultant to carry out work outlined in Exhibit “A." Consultant shall be entitled to reasonably rely on information, data, records and reports furnished by the City, however, the City makes no warranty as to the accuracy or completeness of any such information, data, records or reports available to it and provided to Consultant which were furnished to the City by a third party. Consultant shall have a duty to bring to the City's attention any deficiency or error it may discover in any information provided to the Consultant by the City or a third party.

2. Term of Agreement & Commencement of Work.

(a) Unless otherwise provided, the term of this Agreement shall begin on the date of its full execution and shall expire on **_______________**, unless extended by amendment or terminated earlier as provided herein.

The date of full execution is defined as the date when all of the following events have occurred:

(i) This Agreement has been approved by the City's Council or by the board, officer or employee authorized to give such approval, and;

(ii) The office of the City Attorney has indicated in writing its approval of this

Agreement as to form, and;

(iii) This Agreement has been signed on behalf of Consultant by the person or persons authorized to bind the Consultant hereto, and;

(iv) This Agreement has been signed on behalf of the City by the person designated to so sign by the City's Council or by the officer or employee authorized to enter into this Contract and is attested to by the

Marina City Clerk.

(b) Consultant shall commence work on the Services on or by **_______________**. This Agreement may be extended upon written agreement of both parties. Consultant may be required to prepare a written schedule for the work to be performed, which schedule shall be approved by the City and made a part of Exhibit

A, and to perform the work in accordance with the approved schedule.

3. Compensation.

(a) City liability for compensation to Consultant under this Agreement shall only be to the extent of the present appropriation to fund this Agreement. For services to be provided under this Agreement City shall compensate Consultant in an amount not to exceed **_______________** in accordance with this Agreement and the Fee Schedule attached as Exhibit B.

(b) Invoice(s) in a format and on a schedule acceptable to the City shall be submitted to and be reviewed and verified by the Project Administrator (see Section 5(a)) and forwarded to the City's Finance Department for payment. City shall notify Consultant of exceptions or dispute items and their dollar value within fifteen days of receipt. Payment of the undisputed amount of the invoice will typically be made approximately thirty days after the invoice is submitted to the Finance Department.

(c) Consultant will maintain clearly identifiable, complete and accurate records with respect to all costs incurred under this Agreement on an industry recognized accounting basis. Consultant shall make available to the representative of City all such books and records related to this Agreement, and the right to examine, copy and audit the same during regular business hours upon 24-hour's notice for a period of four years from the date of final payment under this Agreement.

(d) Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by the City to be necessary for the proper completion of the Services, but which is not included within the Scope of Work and which the parties

D2 did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the prior written authorization.

(e) Expenses not otherwise addressed in the Scope of Services or the Fee Schedule incurred by Consultant in performing services under this Agreement shall be reviewed and approved in advance by the Project

Administrator (Section 5(a)), be charged at cost and reimbursed to Consultant.

4. Termination or Suspension.

(a) This Agreement may be terminated in whole or in part in writing by either party in the event of a substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party, provided that no termination may be effected unless the other party is given (1) not less than ten days written notice of intent to terminate, and (2) provided an opportunity for consultation with the terminating party prior to termination.

(b) If termination for default is effected by the City, an equitable adjustment in the price provided for in this Agreement shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due the Consultant at the time of termination may be adjusted to cover any additional costs to the City because of the Consultant's default. If after the termination for failure of Consultant to fulfill its contractual obligations, it is determined that the Consultant had not failed to fulfill contractual obligations, the termination shall be deemed to have been for the convenience of the City.

(c) The City may terminate or suspend this Agreement at any time for its convenience upon not less than thirty days prior written notice to Consultant. Not later than the effective date of such termination or suspension, Consultant shall discontinue all affected work and deliver all work product and other documents, whether completed or in progress, to the City.

(d) If termination for default is effected by the Consultant or if termination for convenience is effected by the City, the equitable adjustment shall include a reasonable profit for services or other work performed. The equitable adjustment for termination shall provide for payment to the Consultant for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by

Consultant relating to written commitments that were executed prior to the termination.

5. Project Administrator, Project Manager & Key Personnel.

(a) City designates as its Project Administrator **_______________** who shall have the authority to act for the City under this Agreement. The Project Administrator or his/her authorized representative shall represent the City in all matters pertaining to the work to be performed pursuant to this Agreement.

(b) Consultant designates **_______________** as its Project Manager who shall coordinate all Services performed under this Agreement. The Project manager shall be available to City at all reasonable times during the

Agreement term.

(c) Consultant warrants that it will continuously furnish the necessary personnel to complete the Services on a timely basis as contemplated by this Agreement. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant has represented to City that certain key personnel will perform and coordinate the work 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 the 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. The key personnel for performance of this Agreement are as follows: **_______________**

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6. Delegation of Work.

(a) If Consultant utilizes any Subconsultants other than those set forth in Exhibit A section

2, consultants, persons, employees or firms having applicable expertise to assist Consultant in performing the services under this Agreement, Consultant shall obtain City's prior written approval to such employment.

Consultant's contract with any Subconsultant shall contain a provision making the subcontract subject to all provisions of this Agreement. Consultant will be fully responsible and liable for the p a y m e n t , administration, completion, presentation and quality of all work performed. City reserves its right to employ other Consultants in connection with the Services..

(b) If the work hereunder is performed by a design professional, design professional shall be directly involved with performing the work or shall work through his, her or its employees. The design professional's responsibilities under this Agreement shall not be delegated. The design professional shall be responsible to the

City for acts, errors or omissions of his, her or its Subconsultants. Negligence of Subconsultants or agents retained by the design professional is conclusively deemed to be the negligence of the design professional if not adequately corrected by the design professional. Use of the term Subconsultant in any other provision of this Agreement shall not be construed to imply authorization for a design professional to use Subconsultants for performance of any professional service under this Agreement.

(c) The City is an intended beneficiary of any work performed by a Subconsultant for purposes of establishing a duty of care between the Subconsultant and the City.

7. Skill of Employees. Consultant shall ensure that any employees or agents providing services under this

Agreement possess the requisite skill, training and experience to properly perform such services.

8. Confidential and Proprietary Information. In the course of performing services under this Agreement

Consultant may obtain, receive, and review confidential or proprietary documents, information or materials that are and shall remain the exclusive property of the City. Should Consultant undertake the work on behalf of other agencies, entities, firms or persons relating to the matters described in the Scope of Work, it is expressly agreed by Consultant that any such confidential or proprietary information or materials shall not be provided or disclosed in any manner to any of Consultant’s other clients, or to any other third party, without the City’s prior express written consent.

9. Ownership of Data. Unless otherwise provided for herein, all documents, material, data, drawings, plans, specifications, computer data files, basis for design calculations, engineering notes, and reports originated and prepared by Consultant, or any Subconsultant of any tier, under this Agreement shall be and remain the property of the City for its use in any manner it deems appropriate. Consultant agrees that all copyrights which arise from creation of the work pursuant to this Agreement shall be vested in the City and waives and relinquishes all claims to copyright or intellectual property rights in favor of the City. Consultant shall provide two (2) sets of reproducible of the above-cited items, except for the computer data files which shall consist of one (1) set. Consultant shall use all reasonable efforts to ensure that any electronic files provided to the City will be compatible with the City's computer hardware and software. Consultant makes no representation as to long-term compatibility, usability or readability of the format resulting from the use of software application packages, operating systems or computer hardware differing from those in use by the City at the commencement of this Agreement. Consultant shall be permitted to maintain copies of all such data for its files. City acknowledges that its use of the work product is limited to the purposes contemplated by the Scope of Work and, should City use these products or data in connection with additions to the work required under this Agreement or for new work without consultation with and without additional compensation to Consultant, Consultant makes no representation as to the suitability of the work product for use in or application to circumstances not contemplated by the Scope of Work and shall have no liability or responsibility whatsoever in connection with such use which shall be at the City's sole risk. Any and all liability arising out of changes made by the City to Consultant's deliverables is waived against Consultant unless

City has given Consultant prior written notice of the changes and has received Consultant's written consent to such changes.

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10. Conflict of Interest.

(a) Consultant covenants that neither it, nor any officer or principal of its firm has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of the City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or Subconsultant without the express written consent of the City Manager. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of the City in the performance of this Agreement. Consultant shall represent the interest of the City in any discussion or negotiation.

(b) City understands and acknowledges that Consultant may be, as of the date of commencement of services under this Agreement, independently involved in the performance of non-related services for other governmental agencies and private parties. Consultant is unaware of any stated position of the City relative to such projects. Any future position of the City on such projects may result in a conflict of interest for purposes of this section.

(c) No official or employee of the City who is authorized in such capacity on behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making accepting or approving this

Agreement, during the term of his or her tenure or service with City and for one year thereafter, shall have any interest, direct or indirect, in this Agreement or the proceeds thereof or obtain any present or anticipated material benefit arising therefrom.

11. Disclosure. Consultant may be subject to the appropriate disclosure requirements of the

California Fair Political Practices Act, as determined by the City Manager.

12. Non-Discrimination.

(a) During the performance of this Agreement the Consultant shall comply with the applicable nondiscrimination and affirmative action provisions of the laws of the United States of America, the State of

California and the City. In performing this Agreement, Consultant shall not discriminate, harass, or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), medical condition (including cancer), age, marital status, denial of family and medical care leave and denial of pregnancy disability leave. Consultant shall give written notice of its obligations under this clause to labor organizations with which it has a collective bargaining or other agreement.

(b) Consultant shall include the nondiscrimination and compliance provisions of this

Section in all subcontracts.

13. Indemnification & Hold Harmless.

(a) Other than in the performance of professional services by a design professional, which shall be solely as addressed by subsection (b) below, and to the full extent permitted by law, Consultant shall indemnify, defend (with independent counsel reasonably acceptable to the City) and hold harmless City, its Council, boards, commissions, employees, officials and agents ("Indemnified Parties" or in the singular "Indemnified Party") from and against any claims, losses, damages, penalties, fines and judgments, associated investigation and administrative expenses, and defense costs including but not limited to reasonable attorney=s fees, court costs, expert witness fees and costs of alternate dispute resolution (collectively "Liabilities“), where same arise out of the performance of this Agreement by Consultant, its officers, employees, agents and sub-Consultants. The

Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, the Consultant’s obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

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(b) To the fullest extent permitted by law (including without limitation California Civil Code Sections

2782.8), when the services to be provided under this Agreement are design professional services to be performed by a design professional, as that term is defined under said section 2782.8, Consultant shall indemnify, protect, defend (with independent counsel reasonably acceptable to the City) and hold harmless City and any Indemnified

Party for all Liabilities regardless of nature or type that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant, or the acts or omissions of an officer, employee, agent or

Subconsultant of the Consultant. The Consultant’s obligation to indemnify applies unless it is adjudicated that its liability was caused by the sole active negligence or sole willful misconduct of an indemnified party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an indemnified party, the Consultant’s obligation shall be reduced in proportion to the established comparative liability of the indemnified party.

(c) All obligations under this section are to be paid by Consultant as incurred by City. The provisions of this Section are not limited by the provisions of sections relating to insurance including provisions of any worker's compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its employees and officials. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every Subconsultant, sub tier Consultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance or subject matter of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder.

(d) If any action or proceeding is brought against any Indemnified Party by reason of any of the matters against which the Consultant has agreed to defend the Indemnified Party, as provided above, Consultant, upon notice from the City, shall defend any Indemnified Party at Consultant's expense by counsel reasonably acceptable to the City. An Indemnified Party need not have first paid for any of the matters to which it is entitled to indemnification in order to be so defended.

(e) This obligation to indemnify and defend City, as set forth herein, is binding on the successors, assigns, or heirs of Consultant and shall survive the termination of this Agreement or this Section.

14. Insurance.

(a) As a condition precedent to the effectiveness of this Agreement and without limiting Consultant's indemnification of the City, Consultant agrees to obtain and maintain in full force and effect at its own expense the insurance policies set forth in Exhibit “C” “Insurance” attached hereto and made a part hereof. Consultant shall furnish the City with original certificates of insurance, manually autographed in ink by a person authorized by that insurer to bind coverage on its behalf, along with copies of all required endorsements. All certificates and endorsements must be received and approved by the City before any work commences. All insurance policies shall be subject to approval by the City Attorney and Risk Manager as to form and content. Specifically, such insurance shall: (1) protect City as an additional insured for commercial general and business auto liability; (2) provide

City at least thirty days written notice of cancellation, material reduction in coverage or reduction in limits and ten days written notice for non-payment of premium; and (3) be primary with respect to City's insurance program.

Consultant's insurance is not expected to respond to claims that may arise from the acts or omissions of the City.

(b) City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required herein by giving Consultant ninety days advance written notice of such change. If such change should result in substantial additional cost of the Consultant, City agrees to negotiate additional compensation proportional to the increased benefit to City.

(c) All required insurance must be submitted and approved the City Attorney and Risk

Manager prior to the inception of any operations by Consultant.

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(d) The required coverage and limits are subject to availability on the open market at reasonable cost as determined by the City. Nonavailability or non affordability must be documented by a letter from Consultant's insurance broker or agency indicating a good faith effort to place the required insurance and showing as a minimum the names of the insurance carriers and the declinations or quotations received from each. Within the foregoing constraints, Consultant's failure to procure or maintain required insurance during the entire term of this

Agreement shall constitute a material breach of this Agreement under which City may immediately suspend or terminate this Agreement or, at its discretion, procure or renew such insurance to protect City's interests and pay any and all premium in connection therewith and recover all monies so paid from Consultant.

(e) By signing this Agreement, Consultant hereby certifies that it is aware of the provisions of Section 3700 et seq., of the Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provision of that Code, and that it will comply with such provisions at all such times as they may apply during the performance of the work pursuant to this Contract. Unless otherwise agreed, a waiver of subrogation in favor of the City is required.

15. Independent Contractor. The parties agree that Consultant, its officers, employees and agents, if any, shall be independent Consultants with regard to the providing of services under this Agreement, and that

Consultant's employees or agents shall not be considered to be employees or agents of the City for any purpose and will not be entitled to any of the benefits City provides for its employees. City shall make no deductions for payroll taxes or Social Security from amounts due Consultant for work or services provided under this Agreement.

16. Claims for Labor and Materials. Consultant shall promptly pay when due all amounts payable for labor and materials furnished in the performance of this Agreement, so as to prevent any lien or other claim under any provision of law from arising against any City property (including reports, documents, and other tangible matter produced by the Consultant hereunder), against the Consultant's rights to payments hereunder, or against the City, and shall pay all amounts due under the Unemployment Insurance Act with respect to such labor.

17. Discounts. Consultant agrees to offer the City any discount terms that are offered to its best customers for the goods and services to be provided herein, and apply such discounts to payment made under this

Agreement which meet the discount terms.

18. 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.

19. Dispute Resolution. If any dispute arises between the parties as to proper interpretation or application of this

Agreement, the parties shall first meet and confer in a good faith attempt to resolve the matter between themselves.

If the dispute is not resolved by meeting and conferring, the matter shall be submitted for formal mediation to a mediator selected mutually by the parties. The expenses of such mediation shall be shared equally between the parties.