RFP 25-035 On-Call Structural Engineering Consultant Services 2025.pdf

RFP # 25-035

REQUEST FOR PROPOSALS

On-Call Structural Engineering Consultant Services 2025

PROPOSALS DUE NO LATER THAN:

2:00 PM ON TUESDAY, MAY 13, 2025

REQUEST FOR PROPOSAL SCHEDULE

RFP Released Thursday, April 17, 2025

Questions submitted by Tuesday, April 29, 2025 by 3:00 pm

Responses to Questions Tuesday, May 6, 2025

Proposals due to City Tuesday, May 13, 2025, 2:00 pm

Submit Proposals to:

www.bidnetdirect.com//cityoffremont http://www.bidnetdirect.com/cityoffremont

Request for Proposals RFP 25-035

REQUEST FOR PROPOSALS

ON-CALL STRUCTURAL ENGINEERING CONSULTANT SERVICES 2025

A. The CITY OF FREMONT (hereinafter "City") hereby requests proposals for the On-Call

Structural Services project (hereinafter “Project”), and will receive proposals at www.bidnetdirect.com//cityoffremont, up to the hour of 2:00 p.m., on Tuesday, May 13, 2025.

If not already registered on the BidNet Direct website, please visit the link to register for City of Fremont access for free www.bidnetdirect.com//cityoffremont.

B. SCOPE OF SERVICES. The City has prepared an outline of “Scope of Services” which is attached as Exhibit “1” to the Request for Proposals (“RFP”), and generally includes: On- Call Structural Services associated with Public Works projects throughout the City.

C. REQUESTS FOR CLARIFICATION OF THE RFP. The sole point of contact for information pertaining to this RFP is www.bidnetdirect.com//cityoffremont. Communication with City staff about the scope of services or anything else related to this RFP is forbidden. If any proposer has any question regarding the meaning of any part of this RFP, or finds discrepancies in or omissions from this RFP, the proposer shall submit any questions through the City of Fremont’s online bidding provider at www.bidnetdirect.com//cityoffremont by 3:00 p.m. on Tuesday, April 29, 2025. All responses to questions will be posted on BidNet Direct.

D. SUBMITTAL OF PROPOSALS. The instructions for the submittal of proposals are set forth throughout this RFP. Generally, each proposal shall be submitted as a single PDF document with a cover letter and four exhibits, including: (A) Scope of Services, (B) Billing Rates, (C) Statement of Qualifications, and (D) Terms of Service Agreement. Proposals shall be clearly stated: “PROPOSAL FOR RFP 25-035 ON-CALL STRUCTURAL

ENGINEERING CONSULTANT SERVICES.”

E. CITY’S REVIEW OF PROPOSALS. All responsive proposals shall be reviewed and evaluated by the City in order to determine which proposer best meets the City’s needs for this Project. The criteria by which the City shall evaluate proposals are set forth in this RFP. The City reserves the right to reject any and all proposals or waive any irregularities in any proposal or the proposal process. The City reserves the right to negotiate the terms of the Agreement for this Project with one or more proposers.

F. AWARD OF AGREEMENT. The City currently anticipates awarding an agreement for this

Project by approximately June 2025. The City upon determination of award will post an Intent to Award to the City’s website and to www.bidnetdirect.com//cityoffremont. The City may negotiate multiple service agreements with top ranking proposers. No proposal or agreement for this Project shall be binding upon the City until the Agreement is signed by the Consultant and the City.

http://www.bidnetdirect.com/cityoffremont http://www.bidnetdirect.com/cityoffremont http://www.bidnetdirect.com/cityoffremont

Conflict of Interest

(Signed copy must be submitted with Proposal)

Each vendor must disclose any existing or potential conflict of interest relative to the performance of the contractual services as a result of this RFP/Bid. Any such relationship that might be perceived as or represent a conflict should be disclosed. By submitting a proposal in response to this RFP/Bid, vendors affirm that they have not given, nor intend to give at any time hereafter, any economic opportunity, future employment, gift, loan gratuity, special discount, trip, favor or service to a public servant or any employee or representative of same, in connection with this procurement. Any attempt to intentionally or unintentionally conceal or obfuscate a conflict of interest will automatically result in the disqualification of a vendor’s proposal. An award will not be made where a conflict of interest exists. The City will determine if a conflict of interest exists and whether it may reflect negatively on the City’s selection of a vendor. The City reserves the right to disqualify any vendor on the grounds of actual or apparent conflict of interest.

Collusion

This is to certify that the undersigned bidder has neither directly nor indirectly entered into an agreement, participated in any collusion, or otherwise taken any action in restraint of free competitive bidding in connection with this proposal submitted this date to the City of Fremont.

All terms and conditions of this Request for Proposal have been thoroughly examined and are understood.

NAME OF BIDDER:

AUTHORIZED REPRESENTATIVE

SIGNATURE

TITLE

ADDRESS

Public Records

(Signed copy must be submitted with Proposal)

PROPOSALS ARE PUBLIC RECORDS. Each proposer is hereby informed that, upon submittal of its proposal to the City in accordance with this RFP, the proposal is the property of the City.

Unless otherwise compelled by a court order, the City will not disclose any proposal while the City conducts its deliberative process in accordance with the procedures identified in this RFP.

However, after the City either awards an agreement to a successful proposer, or the City rejects all proposals, the City shall consider each proposal subject to the public disclosure requirements of the California Public Records Act (California Government Code Sections 6250, et seq.), unless there is a legal exception to public disclosure.

If a proposer believes that any portion of its proposal is subject to a legal exception to public disclosure, the Proposer shall: (1) clearly mark the relevant portions of its proposal “Confidential”; and (2) upon request from the City, identify the legal basis for exception from disclosure under the Public Records Act; and (3) the Proposer shall defend, indemnify, and hold harmless the City regarding any claim by any third party for the public disclosure of the “Confidential” portion of the proposal.

Please check ONE (1) of the following:

☐ NO, I certify that none of the information included with this Proposal is considered confidential or proprietary.

☐ YES, I certify that this Proposal contains information considered confidential or proprietary and all such information is specifically identified within the proposal.

INSTRUCTIONS

1. TIME AND PLACE OF DELIVERY OF PROPOSALS. It is the Proposer's responsibility alone to ensure that the proposal is received by the City’s Authorized Representative at the time and place identified on page 1 of this Request for Proposals (“RFP”).

2. PROPOSER’S SIGNATURE. An authorized representative of the Proposer shall sign the proposal on a cover letter which: (1) identifies this project by name and number; and (2) identifies the full legal name of the Proposer, along with name of contact person, address, phone number, fax number, and e-mail address; and (3) indicates Proposer’s willingness to comply with the procedures identified in this RFP, including an incorporation by reference of the four exhibits identified below.

3. CONTENTS OF PROPOSAL. The Proposer shall include in its proposal, at a minimum, the information outlined in this section in a manner which demonstrates the Proposer's competence and qualifications for the satisfactory performance of the services identified in this RFP. The Proposer shall attach four exhibits to the cover letter proposal, including:

(A) Scope of Services, (B) Billing Rates, (C) Statement of Qualifications, and (D) Terms of Service Agreement.

3(A). Scope of Services. The City has set forth on RFP Exhibit “1,” attached hereto and incorporated herein by reference, an outline of services which the City anticipates the successful proposer to perform. The outline of services set forth on RFP Exhibit “1” is presented for the primary purpose of allowing the City to compare proposals. The precise scope of services to be incorporated into the Service Agreement will be based upon RFP Exhibit “1” as well as Proposal Exhibit “A” to be prepared by Proposer as a part of the proposal (described below), and may be the subject of negotiations between the City and the successful proposer.

3(A)(1). Based upon the City’s outline of services set forth on RFP Exhibit “1,” the Proposer shall prepare a complete description of the scope of services (to be labeled:

Proposal Exhibit “A”) which the Proposer intends to perform in order to achieve the Project Objectives. The Proposer may identify services in Proposal Exhibit “A” which differ from the outline of services in RFP Exhibit “1” if the Proposer believes the changes will assist the City in more efficiently and effectively achieving the City’s stated Project Objectives.

3(A)(2). The Proposer’s scope of services shall include, at a minimum, a description of the major components of services (or phases of service), a description of work product (or “deliverables”) to be provided by Proposer to the City, and the expected time of completion for each component.

3(B). Billing Rates. The Proposer shall prepare a schedule of billing rates which shall be submitted in a separate and sealed envelope (to be labeled: Proposal Exhibit “B”).

Proposal Exhibit “B” shall include the following:

3(B)(1). A proposed rate and method of payment for all services to be performed by the Proposer including hourly rates with rate increases for the duration of the agreement, and a description of any reimbursable charges.

3(B)(2). Prevailing Wage Requirements. Certain tasks for this Project may be subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes.

Rates. The prevailing rates are on file with the City Engineer and available online at http://www.dir.ca.gov/DLSR. Each Contractor and Subcontractor must pay no less than the specified rates to all workers employed to work on the Project. The schedule of per diem wages is based upon a working day of eight hours. The rate for holiday and overtime work must be at least time and one-half.

Compliance. The Contract will be subject to compliance monitoring and enforcement by the DIR, under Labor Code Section 1771.4.

Fremont Minimum Wage. This Contract may be subject to Fremont Municipal Code Chapter 5.30, Minimum Wage Ordinance, as amended from time to time. A summary of the requirements, entitled "Minimum Wage Requirements" can be viewed at:

https://www.codepublishing.com/CA/Fremont/#!/Fremont05/Fremont0530.html

The Minimum Wage Ordinance requires the payment of Minimum Wage for work done on any contract with the City.

Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of the City’s Minimum Wage Ordinance. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.

Contractor shall require applicable subcontractors to fully comply with the requirements of the Minimum Wage Ordinance and include these requirements in all subcontracts covered by Fremont Municipal Code Chapter 5.30.

Contractor's violation of the City’s Minimum Wage Ordinance constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.

For Services that constitute "Public Works" under California Labor Code Section 1720 et seq., if both State prevailing wage and City minimum wage requirements apply, Contractor shall pay the higher of the two rates.

3(C). Statement of Qualifications. The Proposer shall prepare a statement of http://www.dir.ca.gov/DLSR https://www.codepublishing.com/CA/Fremont/#!/Fremont05/Fremont0530.html qualifications (to be labeled: Proposal Exhibit “C”) which identifies:

3(C)(1). An identification of the size, stability, and capacity of Proposer’s organization, including, at a minimum, an identification of Proposer’s: (1) total number of years in operation, (2) total current number of employees, (3) number of office locations (including the location of each office), and (4) number of employees in the office location which is intended to provide the services described in Exhibit “A.”

3(C)(2). An identification of the Proposer’s experience performing services for projects of a similar size, scope, and complexity as the services required by this RFP, including an identification of: (1) the number of years Proposer has been performing similar services; and (2) the most recent projects for which the Proposer has performed similar services. The list of recent projects shall include the name, contact person, address, and phone number of each party for whom the service was provided, as well as a description of the service performed, the dollar amount of the contract, and the date of performance.

3(C)(3). A list of the Proposer's principals, employees, agents, and sub- consultants which the Proposer intends to assign to this Project. This list shall include a summary of the qualifications (including education, training, licenses, and experience) of each individual; the approximate number of hours each will devote to the Project; and the type of work to be performed by each individual. The City will retain under its agreement with the successful Proposer the right of approval of all persons performing under the agreement.

3(D). Terms of City’s Standard Service Agreement. A copy of the City’s standard services Agreement is attached. By submitting a Proposal, the Proposer acknowledges that it has read the Agreement and generally agrees to its terms. Changes to the terms of the Agreement are discouraged and City reserves the right to reject any proposed changes and to reject Proposals that require changes. Proposer shall prepare a document labeled Proposal Exhibit “D” for the following purposes:

3(D)(1). If Proposer is seeking changes to the terms of the Agreement, in redline format specifically identify the changes proposed (either by addition, deletion, or modification), and provide alternative language and a full and detailed explanation justifying the change.

3(D)(2). Disclose any past, ongoing, or potential conflicts of interest which the Consultant may have as a result of performing the work for this Project.

3(D)(3). Identify Proposer’s ability to comply with the City’s insurance requirements. A copy of an insurance certificate or a letter of intent to provide insurance from the issuing company (including a description of types of coverage and dollar amount limits) may be favorably considered.

4. CITY’S REVIEW OF PROPOSALS. After the proposals are received and opened by the City, the City shall review and evaluate all proposals for responsiveness to the Request for Proposals in order to determine whether the Proposer possesses the qualifications necessary for the satisfactory performance of the services required. The City may also investigate qualifications of all Proposers to whom the award is contemplated, and the City may request clarifications of proposals directly from one or more Proposers.

In reviewing the proposals, the City may consider the following and Exhibit 2:

4(A). The qualifications (including education, training, licenses, experience, and past performance) of the Proposer and its agents, employees, and sub-consultants in completing projects of a similar type, size, and complexity. The City may consider Proposer's timely and accurate completion of similar projects within budget.

4(B). The feasibility of the proposal based upon the methodology of the proposed scope of services, Proposer’s capability of developing innovative techniques, the reasonableness of the schedule of billing rates.

4(C). Proposer’s understanding of the work to be completed based upon the clarity of the proposal and responsiveness to this RFP.

4(D). Proposer’s proposed changes to provisions of the Services Agreement.

4(E). The City has prepared a description of the Selection Process and Criteria which is attached as Exhibit “2” to the Request For Proposals (“RFP”).

5. AWARD OF AGREEMENT. Upon completion of the review period, and evaluation and ranking of the proposers, the City shall notify those Proposers who will be considered for further evaluation and negotiation. All Proposers so notified, and if requested shall negotiate in good faith in accordance with direction from the City. Any delay caused by Proposer's failure to respond to direction from the City may lead to a rejection of the Proposal.

5(A). If the City determines, after further evaluation and negotiation, to award the Agreement, a Service Agreement shall be sent to the successful Proposer for the Proposer's signature. No proposal shall be binding upon the City until after the Agreement is signed by duly authorized representatives of both Consultant and the City.

5(B). The City reserves the right to reject any or all proposals, and to waive any irregularity. The award of the Agreement, if made by the City, will be based upon a total review and analysis of each proposal and projected costs. The City may negotiate multiple service agreements with top ranking proposers.

6. COSTS ASSOCIATED WITH PROPOSAL PREPARATION ARE SERVICE PROVIDER

RESPONSIBILITY. All costs incurred by prospective proposers associated with the preparation of a response to this Request for Proposals and subsequent demonstrations, analyses, studies, responses to inquiries, travel for purposes of competing for and/or negotiating a contract with the City are the sole responsibility of the proposer.

7. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable federal, state, and local laws including any applicable legal requirement imposed by Executive Orders duly issued at the federal, state and local level, whether or not said laws are expressly stated in this Agreement. Consultant shall perform services under this Agreement using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

8. PROTESTS AND APPEALS. Protests may be submitted only by a party that has submitted a bid or proposal in response to the contract solicitation. A subcontractor of a bidder or proposer may not submit a protest. A party may not rely on a protest submitted by another party but must timely pursue its own protest.

A protest that merely requests a re-evaluation of a proposal’s content will not be entertained.

Notice of Decision. After a decision to award a contract subject to these protest provisions has been made the City shall issue a notice of intent to award by posting the notice on the designated public bulletin boards and on the City’s bid results web page.

Time to Submit Protest. All protests must be submitted in writing to the purchasing division before 5:00 p.m. on the fifth business day after the date of posting of the City’s notice of intent to award. The protestor shall bear the risk of non-delivery within the time period specified above regardless of the method of delivery selected (facsimile, electronic mail, delivery service, United States mail service).

Form of Protest. All protests shall be in writing and shall contain a complete statement of:

the legal grounds for the protest; all the facts relevant to the protest; and the form of relief requested and the legal basis for such relief. All protests shall be accompanied by all documentations supporting the grounds for the protest. The protest shall include the name, address and telephone number of the person representing the protesting party.

9. DIR REGISTRATION. City may not accept a Proposal from, or enter into an Agreement with, a proposer without proof that the proposer is registered with the California Department of Industrial Relations (“DIR”) (if the requested work falls under the scope of prevailing wage laws) to perform public work under Labor Code Section 1725.5, subject to limited legal expectations.

10. ERRORS AND OMISSIONS. The proposer bears full responsibility for exclusions or errors in the proposals submitted. Upon proposal submittal, the City reserves the right to hold the proposer accountable and responsible for their submitted proposal. Failure to review or comprehend any portion of this proposal does not absolve the proposer of the responsibilities articulated herein.

EXHIBIT 1

SCOPE OF SERVICES

ON-CALL STRUCTURAL ENGINEERING CONSULTANT SERVICES 2025

The City of Fremont (City), through the Public Works Department, is requesting proposals from qualified firms to provide Structural Engineering Consultant services on an on-call basis for City of Fremont projects.

The intent of this RFP is to enter into a master agreement for the performance of Structural Engineering consultant services on a task order basis. It is anticipated that the selected consultant will work under a five-year Master Service Agreement with the City. Prior to commencing work on any project, a task order and scope of services shall be executed specifying the project description, total compensation for the specific project, consultant performance expectations, and a delivery schedule.

Specific Qualifications

The selected Consultant firms’ primary discipline or in-house expertise shall be Structural Engineering and shall be qualified to perform structural engineering analysis and design services in one or more of the following project categories:

• Transportation Roadways, Bridges, Retaining Walls, Miscellaneous structures

• On-site Public Facilities Buildings, Seismic, Retrofits, Foundations, Retaining Walls, Miscellaneous structures

• Complex Structural Design/Assessment – Natural Hazards Seismic, Landslides, Rockslides, Mudflows, Erosion Control

Task Orders

Once the Master Service Agreement has been executed, the Consultant will be assigned project-specific Task Orders. Although the contract will be under the direction of the City Engineer, the Consultant will work directly with a variety of City project managers to be identified on each Task Order.

The Project Manager for each City project will request a detailed scope, cost proposal, and staff assignment from the Consultant for a given task order. After acceptance of the scope and budget by the City, the Consultant will be given a Notice to Proceed (NTP) for the task order and complete the work in a timely manner.

After the NTP, if the Consultant determines that additional cost is needed to complete the task, the Consultant shall send a written request to the City’s project engineer, prior to performing the work. After acceptance of the additional cost, and amendment to the project-specific Task Order will be executed.

Scope of Services

The scope of services, potentially required by the City, includes, but is not limited to the following:

Engineering

• Provide structural engineering services as necessary to assist City design teams (In-House and Consultant teams), such as preparation of structural analysis/reports, plans, specifications, estimates, calculations, and any other required structural engineering documents.

• Provide structural engineering design services for construction or re-construction of transportation infrastructure such as roadways, bridges, overpasses, retaining walls, trails.

• Provide structural engineering design services for construction or re-construction of on-site facilities such as buildings, seismic retrofits, foundations, retaining walls, miscellaneous structures, etc.

• Provide evaluation, assessment, and design services for seismic upgrade requirements for public infrastructure (roadways, bridges, buildings, etc.).

• Perform structural inspections of existing on-site public facilities (buildings, foundations, retaining walls, miscellaneous structures) to determine structural condition.

• Perform structural inspections of existing transportation infrastructure (bridges, overpasses, retaining walls, roadways, trails).

• Perform review and response for construction submittals, shop drawings, calculations, etc., during construction.

• Perform on-site inspection of structural project elements during construction.

• Perform on-site structural engineering assessment of damaged public infrastructure (roadways, bridges, buildings, etc.) resulting from natural hazards such as landslides, rockslides, mudflows, hillside/embankment erosion, seismic activity, etc.

• Perform review of structural engineering plans, specifications, estimates, calculations, reports, and other documents prepared by other structural engineering design consultants.

Administration

• Prepare structural assessment/evaluation reports outlining inspection results and conclusions/recommendations.

• Prepare structural engineering documentation as required to obtain building permits associated with new construction and/or remodels/retrofits.

• Assist the City in obtaining permits as required by other government and/or regulatory agencies.

• Assist the City with tasks as requested by City Staff, which may include work with other consultants and/or vendors working with the City.

EXHIBIT 2

SELECTION PROCESS AND CRITERIA

Short-List Selection Process

A review committee will evaluate all responses to the RFP that meet the submittal requirements and the submittal deadline. Submittals that do not meet the submittal requirements or the deadline will not be considered.

The proposals will be ranked and a short-list of consultant firms will be established. The City anticipates the selection of two (2) consultants to provide the required services. The City will negotiate a master service agreement with the top two ranking firms. In the event that a service and fee agreement cannot be reached with the consultants selected, negotiations will be terminated and the next consultant in order of ranking will be contacted to negotiate.

Selection Criteria

The Proposals will be evaluated using the following criteria:

• Qualifications and specific experience of key project team members;

• Ability to respond in a timely manner;

• Quality and completeness of the proposal;

• Ability to meet contract and insurance requirements;

• Satisfaction of previous clients;

• Overall and local public sector clients experience with engagement of similar scope and complexity.

DESIGN PROFESSIONALS MASTER SERVICE AGREEMENT

This Master Service Agreement (hereinafter “Agreement”) is made and entered into by and between the City of Fremont, a municipal corporation (hereinafter "City"), and [**INSERT name of business and legal entity, i.e. LLC, Partnership, Corporation, etc.

________________________**] (hereinafter "Consultant”). City and Consultant may be collectively referred to herein as the “parties.”

RECITALS

A. City requested a proposal from Consultant to perform services related to Scope of

Services, the “Services.” As issues arise for which the City requires services from Consultant, the City will issue Task Orders describing the services to be performed (in a form substantially similar to that set forth on Exhibit “A,” attached and incorporated herein by reference).

B. In response to the City’s request for a proposal, Consultant submitted its proposal and billing rates [**INSERT title/description ___________________], attached as Exhibit “B” and incorporated herein by this reference.

C. After negotiations, Consultant agreed to perform the Services based on the rates and in return for the compensation described in this Agreement and in Exhibit “B.”

D. In reliance upon Consultant’s representations regarding its qualifications

(included with Exhibit “C”), the City finds that Consultant has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested services.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND

CONDITIONS IDENTIFIED HEREIN, THE PARTIES HEREBY AGREE AS

FOLLOWS:

1. SCOPE OF SERVICES.

1(A). Consultant shall perform the Services generally described above and more particularly described in Exhibit “B” and each Task Order, in accordance with the terms and conditions contained in this Agreement.

1(B). No work shall be performed except to the extent the Consultant receives a

Task Order from the City's Authorized Representative. The City will request proposals from the Consultant for each Task Order when services are needed.

The Consultant shall respond with a scope and cost proposal in a reasonably prompt manner, no later than fifteen (15) calendar days after the City's request.

The proposal shall include a breakdown of estimated hours and work schedule.

Upon the City's approval of the terms of the proposal, the City’s Authorized Representative will issue a Task Order against this Agreement. Consultant shall commence performance and shall complete all required services no later than the dates set forth in accordance with the approved Task Order.

1. TIME FOR PERFORMANCE. Time is of the essence in the performance of services under this Agreement and the timing requirements set forth herein shall be strictly adhered to unless otherwise modified in writing in accordance with this Agreement. Consultant shall commence performance and shall complete all required services no later than the dates set forth in each Task Order. Any services for which times for performance are not specified in this Agreement or a Task Order shall be commenced and completed by Consultant in a reasonably prompt and timely manner based upon the circumstances and direction communicated to the Consultant. Consultant shall submit all requests for extensions of time to the City in writing no later than ten (10) days after the start of the condition which purportedly caused the delay, and not later than the date on which performance is due.

2. PAYMENT.

3(A). Billing. In order to request payment, Consultant shall submit monthly invoices to the City identifying the services performed and the charges therefor (including an identification of personnel who performed the services, hours worked, hourly rates, and reimbursable expenses), based upon the Consultant’s billing rates set forth on Exhibit "B.” The Consultant shall endeavor to provide monthly invoices no later than 30 days after the end of each billing cycle (i.e., all services identified on the invoice were performed no more than 60 days prior to the date the City received the invoice). The City shall have no obligation to pay Consultant for services to the extent performed more than 90 days prior to the date the City receives the invoice for the services. The City shall make monthly payments to Consultant for services which are performed in accordance with this Agreement, to the satisfaction of the City.

3(B). “Not to Exceed” Compensation. The compensation payable to Consultant for the services identified in this Agreement shall not exceed $__________. The Consultant shall only be paid for services performed under this Agreement to the extent authorized by written Task Order. The City does not guarantee any specific amount of work or billable hours will be authorized, unless specifically set forth in Task Orders approved by the City’s Authorized Representative. No overhead or other expenses can be recovered for interim periods when the Consultant's services are not utilized by the City.

3(C). Consultant’s Failure to Perform. If Consultant performs services which do not comply with the requirements of this Agreement, Consultant shall, upon receipt of written notice from the City, re-perform the services without additional compensation to the Consultant. Consultant shall reimburse the City for damages and costs incurred due to Consultant’s failure to perform, which City may charge as an offset to Consultant’s payment.

4. AUTHORIZED REPRESENTATIVES.

4(A). Consultant’s Representative. Consultant understands that the City has relied upon the representations set forth in Consultant’s proposal (as referenced in Recital “D”) regarding the qualifications of the Consultant’s representatives.

Therefore, Consultant shall not replace any of the personnel identified in Exhibit “C” without the prior written consent of the City’s Authorized Representative.

4(B). City’s Authorized Representative. For the performance of Services under this Agreement, the City’s Authorized Representative responsible for administering the Agreement will be [**INSERT REPRESENTATIVE’S NAME AND JOB TITLE**], unless otherwise designated in writing by the City.

5. INFORMATION AND DOCUMENTATION.

5(A). Information from City. The City has tried to provide Consultant with all information necessary for Consultant’s performance of Services. If Consultant believes additional information is required, Consultant shall promptly notify the City, and the City will provide to Consultant all requested relevant information in City's possession (unless the information is deemed by the City to be privileged or non-disclosable).

5(B). Consultant’s Accounting Records. Consultant shall maintain all accounting records related to this Agreement in accordance with generally accepted accounting principles and state law requirements, and in no event for less than four years. Consultant’s accounting records shall include, at a minimum, all documents which support Consultant’s costs and expenses related to this Agreement, including personnel, subconsultant invoices and payments, and reimbursable expenses. Consultant’s accounting records shall be made available to City during normal business hours within a reasonable time after City’s request.

5(C). Proprietary or Confidential Information of the City. Consultant understands and agrees that, in the performance of the work or services under this Agreement or in contemplation thereof, Consultant may have access to private or confidential information which may be owned or controlled by the City and that such information may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to the City. Consultant agrees that all City information accessed by Consultant shall be held in confidence and used only in performance of the Agreement. Consultant shall exercise the same standard of care to protect such information as a reasonably prudent consultant would use to protect its own proprietary data.

5(D). Ownership of Work Product. All original drawings, plans, reports, specifications, calculations, other documents and copyright interests (including all copyrightable interests arising under the 1990 Architectural Works Copyright Protection Act) developed, prepared or discovered by Consultant (including its employees and subconsultants) for this Agreement (collectively “work product”), whether complete or in progress, are the property of the City, and shall be given to the City at the completion of Consultant’s services, or upon demand by the City. Consultant shall have a right to make and keep copies of the work product.

Consultant shall not reveal the work product, or make it available, to any third party without the prior written consent of the City. At City’s request, Consultant shall execute appropriate documents to assign to the City the copyright to works created pursuant to this Agreement.

City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of work and that the Consultant makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of work. The right of the City to modify and reuse the work product for purposes other than that contemplated by the scope of work is subject to the provisions of California Business and Professions Code Section 5536.25, 6735, 6735.3 or 6735.4, whichever is applicable.

5(E). Errors/Omissions. Consultant shall correct, at no cost to City, any and all errors, omissions, or ambiguities in the work product submitted to City, provided City gives notice to Consultant. If Consultant has prepared plans and specifications or other design documents to be used in construction of a project, Consultant shall be obligated to correct any and all errors, omissions or ambiguities in the work product discovered prior to and during the course of construction of the project. This obligation shall survive termination or expiration of this Agreement for a minimum period of twelve months following the expiration or termination of the Agreement.

5(F). Cost Estimates. If the scope of work in Exhibit A requires Consultant to submit estimates of probable construction costs, the provisions of this subsection shall apply. If the total estimated construction cost submitted at any phase of design exceeds ten percent (10%) of the City’s stated construction budget, Consultant shall make recommendations to the City for aligning the project design with the budget, incorporate City approved recommendations and revise the design to meet the project budget at no additional cost to City.

6. RELATIONSHIP BETWEEN THE PARTIES. Consultant is, and at all times shall remain, an independent contractor solely responsible for all acts of its employees, agents, or subconsultants, including any negligent acts or omissions. Consultant is not an agent of the City and shall have no authority to act on behalf of the City, or to bind the City to any obligation whatsoever, unless the City provides prior written authorization to Consultant. Consultant is not an officer or employee of City, and Consultant shall not be entitled to any benefit, right, or compensation other than that provided in this Agreement.

7. CONFLICTS OF INTEREST PROHIBITED. Consultant (including its employees, agents, and subconsultants) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Consultant shall comply with all requirements of the Political Reform Act (California Government Code Sections 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by the City if it is reasonably foreseeable that the decision may have a material effect on Consultant’s economic interest, and (b) if required by law, Consultant shall file financial disclosure forms with the City Clerk. If Consultant maintains or acquires a conflicting interest, any contract with the City (including this Agreement) involving Consultant’s conflicting interest may be terminated by the City.

8. NONDISCRIMINATION. Consultant shall not discriminate against any employee or applicant on the basis of race, color, religious creed, national origin, physical disability, mental disability, medical condition, marital status, sexual orientation, gender, sex or other legally protected status. Consultant will include this requirement in any subcontract.

9. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable federal, state, and local laws including any applicable legal requirement imposed by Executive Orders duly issued at the federal, state and local level, whether or not said laws are expressly stated in this Agreement.

Consultant shall perform services under this Agreement using a standard of care equal to, or greater than, the degree of skill and diligence ordinarily used by reputable professionals, with a level of experience and training similar to Consultant, performing under circumstances similar to those required by this Agreement.

10. LICENSES. Consultant represents and warrants that it has all licenses, permits, qualifications, insurance and approvals of whatsoever nature, which are legally required of Consultant to practice its profession and provide the Services under this Agreement. Consultant further represents and warrants that it shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this

Agreement, any licenses, permits, insurance and approvals, which are legally required of Consultant to practice its profession and provide the Services under

11. BUSINESS TAX. The Consultant shall apply for and pay the business tax and registration tax for a business license, in accordance with Fremont Municipal Code Title 5, Chapter 5.05.

12. INSURANCE. Consultant shall, throughout the duration of this Agreement, maintain insurance to cover Consultant (including its agents, representatives, subconsultants, and employees) in connection with the performance of services under this Agreement. Exhibit D of this Agreement identifies the minimum insurance levels with which Consultant shall comply; however, the minimum insurance levels shall not relieve Consultant of any other performance responsibilities under this Agreement (including the indemnity requirements), and Consultant may carry, at its own expense, any additional insurance it deems necessary or prudent. Concurrently with the execution of this Agreement by the Consultant, and prior to the commencement of any services, the Consultant shall furnish written proof of insurance (certificates and endorsements), in a form acceptable to the City. Consultant shall provide substitute written proof of insurance no later than 30 days prior to the expiration date of any insurance policy required by this Agreement.

13. REPORTING DAMAGES. If any damage (including death, personal injury or property damage) occurs in connection with the performance of this Agreement, Consultant shall immediately notify the City Risk Manager’s office by telephone at 510-284-4050, and Consultant shall promptly submit to the City’s Risk Manager and the City’s Authorized Representative, a written report (in a form acceptable to the City) with the following information: (a) a detailed description of the damage (including the name and address of the injured or deceased person(s), and a description of the damaged property), (b) name and address of witnesses, and (c) name and address of any potential insurance companies.

14. INDEMNIFICATION. Consultant shall, to the fullest extent permitted by law, hold harmless, defend (with counsel approved by the City) and indemnify the City, including its officers, officials, employees, agents and volunteers, from and against any and all claims, litigation, demands, damages, liabilities, costs, and expenses, including court costs, attorney’s fees, experts fees and other costs and fees of litigation or other dispute resolution proceedings (“Claims”) to the extent the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant and its employees, agents and subconsultants. The cost to defend City charged to the Consultant shall not exceed Consultant’s proportionate percentage of fault. Notwithstanding the previous sentence, in the event 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 other parties regarding unpaid defense costs. The provisions of this section survive completion of the Services and the expiration or termination of this Agreement. The provisions of this section are not limited by the provisions of Section 12 relating to insurance.

15. TERM OF THE AGREEMENT. The term of this Agreement shall commence on the date last signed by the parties, below, and shall continue until completion of all Services in accordance with the timing requirements set forth in Exhibit “B” and paragraph 2 of this Agreement, or until [**INSERT DATE _________]. This Agreement may be terminated by the City without cause upon fifteen (15) days written notice to Consultant. If the City exercises its right to terminate this Agreement in accordance with this paragraph, the City shall pay Consultant for all Services satisfactorily performed in accordance with this Agreement, through and including the date of termination, but not to exceed the payments according to the rates specified in Exhibit “C” or the maximum amount authorized under paragraph 3 of this Agreement.

16. DEFAULT. If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specificity) to the defaulting party and demand the default to be cured within ten days of the notice. If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party.

17. NOTICES. All notices required or contemplated by this Agreement shall be in writing and shall be delivered or mailed to the respective party as set forth in this section. Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party’s Authorized Representative, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The Authorized Representative of either party may modify their respective contact information identified in this section by providing notice to the other party.

To: City To: Consultant

**INSERT NAME & TITLE **INSERT NAME & TITLE

** INSERT ADDRESS **INSERT ADDRESS

18. HEADINGS. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement.

19. SEVERABILITY. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect;

provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.

20. GOVERNING LAW, JURISDICTION, AND VENUE. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

21. ASSIGNMENT AND DELEGATION. This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the Consultant’s duties be delegated, without the written consent of the City. Any attempt to assign or delegate this Agreement without the written consent of the City shall be void and of no force or effect. A consent by the City to one assignment shall not be deemed to be a consent to any subsequent assignment.

22. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties.

23. WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.

24. CONFLICTS. If any conflicts arise between the terms and conditions of this

Agreement and the terms and conditions of the attached exhibits or any documents expressly incorporated, the terms and conditions of this Agreement shall control.

25. NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to and shall not be construed to give any third party any interest or rights (including, any third party beneficiary rights), except as otherwise expressly provided for in

26. NEUTRAL INTERPRETATION. This Agreement represents the contributions of both parties, each of whom has had the opportunity to be represented by competent counsel. Accordingly, the rule stated in California Civil Code Section 1654 that a contract be construed against its drafter, shall have no application to the interpretation of this Agreement.

27. ENTIRE AGREEMENT. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein.

This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.

28. EACH PARTIES’ ROLE IN DRAFTING THE AGREEMENT. Each party to this

Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely upon Civil Code section 1654 in order to interpret any uncertainty in the meaning of the Agreement.

29. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Consultant and the City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

30. COUNTERPARTS. This Agreement may be signed in counterparts, each of which shall be deemed to be an original. The Parties agree that the digital signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual…