RFP 26-002 On-Call Construction Materials Testing Services.pdf

RFP # 26-002

REQUEST FOR PROPOSALS

On-Call Construction Materials Testing Services

PROPOSALS DUE NO LATER THAN:

2:00 PM ON WEDNESDAY, SEPTEMBER 10, 2025

REQUEST FOR PROPOSAL SCHEDULE

RFP Released Tuesday, August 15, 2025

Questions submitted by Tuesday, August 26, 2025 by 3:00 pm

Responses to Questions Tuesday, September 2, 2025

Proposals due to City Wednesday, September 10, 2025, 2:00 pm

Submit Proposals to:

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

Request for Proposals RFP 26-002

REQUEST FOR PROPOSALS

ON-CALL CONSTRUCTION MATERIALS TESTING SERVICES

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

Construction Materials Testing Services project (hereinafter “Project”), and will receive proposals at www.bidnetdirect.com//cityoffremont, up to the hour of 2:00 p.m., on Wednesday, September 10, 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 Construction Materials Testing 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, August 26, 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 26-002 ON-CALL CONSTRUCTION

MATERIALS TESTING 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 October 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

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 Proposal Exhibit “B” and 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 qualifications (to be labeled: Proposal Exhibit “C”) which identifies:

3(C)(1). An identification of the size, stability, and capacity of Proposer’s organization, http://www.dir.ca.gov/DLSR https://www.codepublishing.com/CA/Fremont/#!/Fremont05/Fremont0530.html 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. Any proposal WILL BE REJECTED AS NON-RESPONSIVE if Proposer fails to submit proof of DIR registration in its response to this RFP, as required by California law.

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 CONSTRUCTION MATERIALS TESTING SERVICES

The City of Fremont (City), through the Engineering Division of the Public Works Department, is seeking Proposals from firms desiring to provide on-call construction materials testing services to supplement City staff. Through the City’s Capital Improvement Program (CIP), numerous public works projects will be undertaken over the next five years, many of which will require construction testing work beyond that of the City’s in-house soils lab.

SCOPE OF WORK

The scope of work for potential projects may include, but not be limited to:

Roadway and Site Testing

• Field density testing to determine relative compaction of in-place subgrade soils, utility trench backfill, structural backfill, import aggregate subbase and base and asphalt concrete for site grading, building pads, transformer pads, electrical switch gear pads, embankments and pavements.

• Concrete and asphalt concrete batch plant inspections to verify materials quality, batch weights, use of appropriate mix designs as well as sampling of materials for laboratory testing.

• In-progress laboratory materials qualification testing including:

Moisture/density relationship curves, sieve analyses, sand equivalent, cleanness value, durability, “R” values and extracted oil contents per project documents and/or Caltrans requirements as appropriate for embankment soil, structure backfill, import aggregate subbase and base, concrete aggregates and asphalt concrete aggregates. Mix design compliance for asphalt concrete and seal coats.

Building and Structural Inspection & Testing

• Field inspection/testing of reinforced concrete in order to monitor concrete temperature, time since batching and consistency (slump or kelley ball) and fabrication of cylinders or beams for compressive or flexural strength testing.

• Concrete mix design review, placement inspection, and strength testing

• Reinforcing steel field inspection and mill certification review

• Masonry testing and inspection

• Epoxy and grout testing and inspection, including epoxy grouted dowels

• Concrete Cylinder Compression Test

• Concrete anchor installation

• Roof truss fabrication and installation inspection

• Glu-lam fabrication and installation inspection

• Inspection on plywood nailing

• Fireproofing

• Plywood Nailing

• Structural steel inspection, mill certification review and welding inspections

• Fabrication shop and on-site welding and bolting inspections for steel structures and reinforcing steel including non-destructive testing (NDT) as required by project documents.

• Source inspections and laboratory testing as required for pre-qualification of materials.

Examples: pre-cast concrete pile fabrication, testing of pre-stressing strand for yield and elongation, tensile and bend testing of reinforcing sheet, etc.

• Non-destructive field testing utilizing Ground Penetrating Radar (GPR), or other methods for locating embedded items in concrete for retrofit work or verification of existing construction.

• Proofload/Torque testing of various embedded anchors and anchor systems to verify adequacy and compliance with project specifications.

Administrative Tasks

• Coordinating work plans and field activities following protocols of oversight agencies.

• Meeting attendance with City staff

• Reviewing/Certifying reports in a timely manner (30 days).

• Preparation, coordination, or review on test reports

• Provide and distribute weekly reports of all inspection activity upon request

• Coordination and scheduling of on-call inspection services with the Contractor and the Project

Manager

• Preparation of Final Affidavit/Final Report with summary of all test results

EXHIBIT 2

SELECTION PROCESS AND CRITERIA

ON-CALL CONSTRUCTION MATERIALS TESTING SERVICES

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 three (3) 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.

The intent of this RFP is to enter into a master service agreement for the performance of construction materials testing 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.

Payment for services provided under the service agreement will be on a “time and materials” basis with a not-to-exceed limit of $1,250,000 for the five-year Master Agreement. This amount represents a maximum potential value, not a minimum or guaranteed amount. The City reserves the right to enter into multiple Contracts for these services and/or to issue a stand-alone RFP for any specific project at any time.

EXHIBIT C

SAMPLE MASTER PROFESSIONAL SERVICES AGREEMENT

FOR ON-CALL CONSTRUCTION MATERIALS TESTING SERVICES

(2026-XX)

This Agreement is made by and between the City of Fremont, a municipal corporation (City), and ________________________ [INSERT FULL LEGAL NAME, I.E., LLC, PARTNERSHIP, CORPORATION] (Consultant). City and Consultant may be individually referred to as a “party” and collectively as the “parties.”

RECITALS

A. City requested a proposal from Consultant to perform as-needed services generally including: __________________________________ [INSERT GENERAL

DESCRIPTION].

B. In response, Consultant submitted a proposal, and, after negotiations agreed to provide the services described in Exhibit A (Scope of Work), in return for the compensation described in the Agreement and in Exhibit B (Compensation).

C. In reliance upon Consultant’s representations of its qualifications, as set forth in Exhibit C

(Qualifications), 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 AGREE AS FOLLOWS:

1. SERVICES.

1(A). Consultant shall perform the services generally identified above and more particularly described in Exhibit A, attached and incorporated by reference (Services), in accordance with the terms and conditions of the Agreement. As issues arise for which City requires Services, City will issue task orders describing the specific Services required in a form like the one attached in Exhibit A-1 (Task Order).

1(B). No work shall be performed unless approved by City through a written Task Order.

City will request proposals from Consultant for each Task Order when Services are needed.

Consultant shall respond with a scope, cost proposal, work schedule and estimated hours in a reasonably prompt manner by no later than the date stated in the Task Order. Upon City's approval of Consultant’s proposal, City will issue a Task Order. Consultant shall commence performance and shall complete all required Services no later than the dates set forth in the approved Task Order.

2. TERM. The Agreement commences on the date last signed by the parties and ends on

_______________, unless terminated earlier or extended as provided in the Agreement.

3. TIME FOR PERFORMANCE. Time is of the essence and Consultant shall complete the

Services within the term of the Agreement and in accordance with the timing requirements set forth herein, in Exhibit A, and in any Task Order approved by City. Any Services for which times for performance are not specified shall be commenced and completed in a reasonably prompt and timely manner based upon the circumstances and City direction.

Consultant shall submit all requests for time extensions to 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. All references to “days” or “time periods” in the Agreement shall mean calendar days unless otherwise specified.

4. COMPENSATION. The total compensation (including any reimbursable expenses) payable to Consultant for the Services identified in Exhibit A for the entire term of the Agreement shall not exceed _____________ dollars ($_________) and shall be based on the compensation, billing rates, and charges set forth in Exhibit B, attached and incorporated by reference. Any hours worked for which payment would exceed the not-to-exceed amount set forth herein shall be at no cost to City. Consultant shall only be paid for Services performed to the extent authorized by written Task Order. City does not guarantee any specific amount of work or billable hours under the Agreement, and no overhead or other expenses can be recovered for interim periods when Consultant's Services are not utilized by City.

Billing. To request payment, Consultant shall submit monthly invoices to City identifying the Services performed and the charges therefor (including personnel who performed the Services, hours worked, and reimbursable expenses), based upon Consultant’s billing fees or rates set forth in Exhibit B. City will timely pay invoices for Services which are performed in accordance with the Agreement to City’s satisfaction.

5. AUTHORIZED REPRESENTATIVES. All regular communication regarding the Services and administration of the Agreement shall be between the parties’ Authorized Representatives designated below. Consultant shall not replace its Authorized Representative, or any of the personnel or subconsultants identified in Exhibit C without City’s prior written consent. All Services shall be performed by, or under the direct supervision of Consultant’s Authorized Representative. City will notify Contractor of any changes to its designation.

City Representative: Contractor Representative:

NAME / TITLE NAME / TITLE

CONTACT INFORMATION CONTACT INFORMATION

6. INFORMATION AND DOCUMENTATION.

6(A). City Information. City has provided Consultant with all information necessary to perform the Services and will provide further information will any Task Order issued.

Consultant will promptly notify City if it requires additional information.

6(B). Consultant’s Accounting Records. Consultant shall maintain all accounting records for the Agreement in accordance with generally accepted accounting principles and applicable law for the duration of the Agreement plus four (4) years from the date of final payment, including, at a minimum, documents which support Consultant’s costs and expenses (including personnel, subconsultant invoices and payments, and reimbursable expenses). Such records shall be made available to City upon request.

6(C). City Proprietary and Confidential Information. In the performance of the Agreement or in contemplation thereof, Consultant may have access to proprietary or confidential information owned or controlled by City, which if disclosed to third parties may be damaging to City. Consultant shall hold all City information in confidence and use it only to perform the Services and shall exercise the same standard of care to protect City information as a reasonably prudent consultant would use to protect its own proprietary and confidential data.

6(D). Ownership of Work Product. City owns all rights in and to the work product created or prepared by or on behalf of Consultant under the Agreement, in any form or media (including electronic equivalents), without restriction or limitation upon their use, whether complete or in progress, including without limitation: reports, writings, drawings, files, plans, data, recordings, calculations, specifications, models and any other materials and copyrights, if any (Work Product). Consultant makes no representation of the suitability of the Work Product for use by City outside of the scope of this Agreement. Neither Consultant nor its subconsultants shall reveal the Work Product to any third party without City’s prior written consent. All Work Product shall be given to City upon request or at the completion of the Services. Consultant may keep copies of certain material with City’s written approval.

6(E). Copyrights. All copyrights that arise from the Work Product shall be vested in City, and Consultant relinquishes all claims to the copyrights in favor of City. To the extent permitted by Title 17 of the United States Code, the Work Product shall be deemed a “work for hire” and all copyrights in such work shall constitute City property. If it is ever determined that any Work Product is not a “work for hire” under United States law, Consultant hereby assigns to City all copyrights to such works and waives and relinquishes all copyrights and other intellectual property rights in favor of City.

Subsections 6(B), 6(C), 6(D) and 6(E) shall survive the expiration or early termination of the Agreement.

7. RELATIONSHIP BETWEEN THE PARTIES. Consultant shall perform the Agreement as an independent contractor and is solely responsibility for the acts of its employees, agents and subconsultants. Consultant is not an employee, officer, or agent of City and shall have no authority to act for or to bind City to any obligation whatsoever unless City provides prior written authorization. Consultant is not entitled to any City benefit, right, or compensation other than what is provided in the Agreement and is solely responsible for payment of taxes, fees, and charges related to its business operations and performance of the Agreement.

8. CONFLICTS OF INTEREST PROHIBITED. Consultant, its employees, agents, and subconsultants shall avoid any direct or indirect interest that conflicts with the performance of the Agreement and shall comply with all requirements of the Political Reform Act, including California Government Code §§ 1090 and 81000, et seq., and any other state and local law relating to conflicts of interest, including: (a) Consultant shall not make or participate in a decision made by 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, this and any other agreement with City involving Consultant’s conflicting interest may be terminated by City.

9. NONDISCRIMINATION. Consultant shall not engage in discriminatory employment practices related to the Agreement and shall not discriminate against any person (including employees or job applicants) because of race, color, religion, national origin, disability, medical condition, marital status, age, gender, sex, sexual orientation, or other legally protected class and must include this requirement in any subcontract.

10. WAGES AND COMPLIANCE WITH LABOR CODE. Consultant shall comply with the minimum wage requirements of Fremont Municipal Code, Chapter 5.30. If any Services are considered a “public works” under California Labor Code § 1720 et seq., Consultant shall comply with all applicable legal requirements, including payment of prevailing wage, retention of certified payroll records, and any other requirements imposed by the Department of Industrial Relations.

11. COMPLIANCE WITH LAW AND STANDARD OF CARE. Consultant shall comply with all applicable federal, state and local laws, codes and regulations, and any duly issued executive orders, even if said laws are expressly stated in the Agreement. All Services shall be performed skillfully, competently, and to the highest standards of Consultant’s profession and consistent with the standard of care exercised by reputable members of Consultant’s profession performing similar work under similar circumstances to those required herein.

12. ERRORS AND OMISSIONS. At its sole cost, Consultant shall correct any errors, omissions, and ambiguities (Errors) in the Work Product and shall re-perform any Services that do not meet the requirements of the Agreement upon discovering said Errors or receiving written notice from City. Consultant shall reimburse City for any damages and costs caused by said Errors, which City may charge as an offset to Consultant’s payment. This section survives the expiration or early termination of the Agreement for a minimum period of twelve months.

13. LICENSES. Consultant represents and warrants that it has all licenses, permits, qualifications, insurance and approvals that are legally required to practice its profession and perform the Agreement, which shall be kept in effect during the full term of the Agreement at its sole expense. Consultant must be a licensed architect, registered engineer, or licensed general contractor to perform any construction management services.

14. BUSINESS TAX. Consultant shall apply for and pay the business tax and registration tax required under Fremont Municipal Code, Chapter 5.05. Consultant must provide City with written documentation to support any requested waiver of said taxes.

15. INSURANCE. For the duration of the Agreement, Consultant shall maintain insurance to cover Consultant, its employees, agents, representatives and any subconsultants in the performance of the Agreement and shall comply with the requirements set for in Exhibit D (Insurance Requirements), attached and incorporated by reference, which identifies the insurance types and minimum levels required for the Agreement. Compliance with Exhibit D shall not relieve Consultant of any other requirements under the Agreement (including indemnity requirements, and Consultant may carry, at its own expense, any additional insurance it deems necessary or prudent. Concurrently with the execution of the Agreement and prior to commencing any Services, Consultant shall furnish written proof of insurance (certificates and endorsements), in a form acceptable to 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 the Agreement.

16. REPORTING DAMAGES. If any person is injured or property is damaged in connection with the performance of the Agreement, Consultant shall immediately notify the City’s Risk Manager by telephone at 510-284-4050, and shall promptly submit to the Risk Manager a written report (in a form acceptable to City) with the following information: (a) detailed description of the incident, (b) name and address of the person injured or deceased and of any witnesses, (c) whether any City property was involved, and (d) name and address of Consultant's insurance company.

17. INDEMNIFICATION. To the fullest extent permitted by law, Consultant shall hold harmless, defend (with counsel approved by City), and indemnify City, its elected officials, officers, employees, agents, and approved 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), resulting or arising out of, pertaining to, or relating to Consultant’s performance or failure to perform under the Agreement, except for Claims arising out of City’s sole negligence or willful misconduct. This section survives the expiration or early termination of the Agreement and is not limited by the insurance provisions in the Agreement.

18. TERMINATION AND SUSPENSION. City in its sole discretion may terminate the

Agreement or suspend the Services for convenience, in whole or in part, upon giving fifteen

(15) days’ prior written notice to Consultant. If Consultant fails to perform any of its material obligations under the Agreement, in addition to all other legal remedies. City may terminate the Agreement immediately for cause upon written notice to Consultant setting forth the effective date of termination. Consultant shall cease all work as of the date of termination unless otherwise instructed by City and will be paid for Services satisfactorily performed up to the date of termination in accordance with the terms of the Agreement and Exhibit B, but not to exceed the maximum amount authorized under section 4 of the Agreement. If the termination is for cause, City may deduct from payment the amount of any actual damage sustained by City due to Consultant’s breach or default. City may give Consultant the opportunity to cure a minor, non-material breach by a specific date during which time City may suspend payments pending Consultant’s performance. City shall not be liable for any costs incurred by Consultant due to termination or suspension of the Agreement beyond the compensation authorized hereunder.

19. OFFICIAL NOTICES. All notices required by law or concerning critical matters under the

Agreement shall be in writing and delivered to the officers designated below. The notices shall be deemed to be effective upon the first to occur of: (a) actual receipt by the party’s designated officer, or (b) actual receipt at the address designated below, or (c) five (5) days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The parties may change their designations only in writing in accordance with the requirements of this section.

TO: CITY TO: CONSULTANT

Name _________________________ Name _____________________ Title ___________________________ Title_______________________ Address________________________ Address ___________________

20. ENTIRE AGREEMENT. The Agreement (including incorporated exhibits and attachments) comprises the entire integrated understanding between the parties regarding the Services and the requirements of the Agreement, and supersedes all prior negotiations, agreements, and understandings, whether written or oral. All incorporated documents are complementary; what is called for in one is binding as if called for in all. Section headings are intended only as a guide to content and not for the construction of the Agreement. There are no third-party beneficiaries to the Agreement.

21. NEUTRAL INTERPRETATION. The Agreement represents the contributions of both parties, each of whom has had the opportunity to confer with legal counsel. Accordingly, California Civil Code § 1654, which provides for construction of a contract against its drafter shall not apply to the Agreement.

22. GOVERNING LAW AND VENUE. The interpretation and enforceability of the Agreement is governed by California law, and any suit, claim, or legal proceeding shall be filed and heard in a court of competent jurisdiction in the County of Alameda.

23. SEVERABILITY; CONFLICTS. If any part of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as excluding the invalid part and shall continue in full force and effect unless it would result in a frustration of the parties’ contractual intent. The terms of the Agreement shall control and supersede any conflicting provision in any incorporated exhibit or attachment.

24. ASSIGNMENT AND DELEGATION. Neither the Agreement nor any of Consultant’s duties shall be assigned or transferred without City’s prior written consent, and any attempt to do so shall be void and of no force or effect. City consent to one assignment shall not be deemed to be a consent to any subsequent assignment.

25. MODIFICATIONS. The Agreement may not be modified orally or in any manner other than by written agreement signed by the parties. .

26. WAIVER. No payment, partial payment, acceptance, or partial acceptance of Services shall operate as a waiver of any of City’s rights under the Agreement. City waiver of a specific violation shall not constitute a continuing waiver or a waiver of a new violation.

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

The parties’ digital signatures shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based record keeping system to the fullest extent permitted by law.

28. SIGNATURES. The signatories represent and warrant that they have the right, legal capacity, and authority to execute the Agreement on behalf of their respective legal entities.

The Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

IN WITNESS WHEREOF, City and Consultant agree to the terms set forth herein.

CITY OF FREMONT CONSULTANT *INSERT FULL LEGAL

NAME AND REFER TO SIGNATURE

BLOCKS GUIDE ON CAO INTRANET

By __________________________ By __________________________ Name __________________________ Name __________________________ Title __________________________ Title __________________________ Date ________________________ Date __________________________ Tax ID No. ______________________

APPROVED AS TO FORM:

By _____________________________ Name _____________________________ Title Senior Deputy City Attorney

EXHIBIT A - Scope of Work EXHIBIT B - Compensation EXHIBIT C - Qualifications EXHIBIT D – Insurance Requirements

EXHIBIT D

INSURANCE REQUIREMENTS

SERVICES CONTRACTS

Consultant’s performance of the agreement shall not commence until Consultant has obtained the insurance required herein and such insurance has been reviewed and approved by the City’s Risk Manager. All insurance requirements shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier.

Consultant shall procure and maintain for the duration of the contract all necessary insurance against claims now and in the future for alleged injuries to persons or damages to property which may arise from or in connection with performance of the Services by Consultant, Consultant’s agents, representatives, employees and subcontractors. Required professional liability insurance shall be maintained at the level specified herein for the duration of the agreement and any extension thereof, and for twelve additional months following the agreement termination or expiration.

INSURANCE COVERAGE AND LIMITS RESTRICTIONS.

1. This agreement requires that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to the additional insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this agreement or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured, whichever is greater.

2. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City of Fremont before City of Fremont’s own insurance or self-insurance shall be called upon to protect it as a named insured.

A. MINIMUM SCOPE OF INSURANCE

Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage:

a. Blanket contractual liability

b. Broad form property coverage

c. Personal injury

2. Insurance Services Office form covering Automobile Liability, code 1 (any auto).

3. Workers’ Compensation insurance as required by the State of California and

Employer’s Liability insurance.

4. Professional Liability insurance

5. Such other insurance coverages and limits as may be required by City of Fremont.

B. MINIMUM LIMITS OF INSURANCE. Consultant shall maintain limits no less than:

1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage and a $2,000,000 aggregate. If Commercial General Liability insurance or other form with a general aggregate liability is used, either the general aggregate limit shall apply separately to this agreement or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

3. Employer’s…