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HomeMy WebLinkAboutAGENDA REPORT 2008 0820 CC REG ITEM 10SMOORPARK CITY COUNCIL AGENDA REPORT 10-S, ITEM--- . Im- City Council Meeting ACTION: TO: Honorable City Council FROM: Barry K. Hogan, Community Development Direct ` Yugal Lail, City Engineer /Public Works Director DATE: August 7, 2008 (CC Meeting of 8/20/2008) SUBJECT: Consider the Selection of a Consultant to Provide Traffic Engineering Services for the City and the Selection of a Consultant to Provide Traffic Signal Design and Maintenance BACKGROUND Traffic Engineering services have been provided by consultant to the City of Moorpark for many years. In July of this year, City staff requested proposals from nine firms to provide these services. Three of these firms submitted proposals. DISCUSSION Proposals for Traffic Engineering services were received from Hartzog & Crabill, Inc., KOA Corporation, and W. G. Zimmerman Engineering, Inc. Staff reviewed the proposals and found all proponents to be responsive to the Request for Proposals. The City was very specific in identifying the services that the successful consultant would provide. A copy of the Request for Proposals is attached for reference. The selection of the successful proposal is based upon the cost for the service, the personnel proposed, and the experience of the proponent in providing the services. Each consultant was interviewed by a committee consisting of the Deputy City Manager, Public Works Director /City Engineer, and the Assistant City Engineer. Traffic Engineering Services: All of the consultants were found to be well qualified and able to meet the requirements of the City. The Committee felt that a larger firm, KOA, would have greater potential to serve multiple needs with respect to traffic concerns within the City. The City has utilized the services of KOA (formerly as Katz, Okitsu and Associates) in the past and found them to be responsive. Of the three firms, KOA is the largest with an overall staff of 110 people, 14 of which are civil engineers and 8 of which traffic engineers. They have six offices in California, five of which are located in Southern California. Most of the City's traffic engineering needs are performed off -site 9 Honorable City Council August 20, 2007 Page 2 with developer traffic study review response via email. When on -site work is needed personnel from the Monterey Park office would be utilized. Traffic engineering is on an P Y 9 9 "as needed" basis and generally fully paid for through the entitlement process. Traffic Signal Design and Maintenance: The City currently has 20 signalized intersections under control of the City, some of which are interconnected along Tierra, Rejada Road and Spring Road. An additional 20 signalized intersections are under the control of Caltrans. There are additional signals which have been conditioned as part of entitlement projects that will need to be designed and constructed in the future and existing signals that will need to be modified due to changes in traffic patterns or street realignments. The Signal Design & Maintenance requirements are a specialized area of engineering that is not provided by in -house engineering staff. In interviewing the proponents for Traffic Engineering Services it was noted that Hartzog & Crabill, Inc. has considerable experience in this area of expertise. The City has utilized Hartzog & Crabill, Inc. services in the area in the past. The City should take advantage of this opportunity and enter into a contract for traffic signal design and maintenance with Hartzog & Crabill, Inc. This service would be on an "as needed" basis. STAFF RECOMMENDATION 1. Authorize the City Manager to sign the negotiated contract for services with KOA Corporation for Traffic Engineering Services, subject to final language approval by the City Manager and the City Attorney. 2. Authorize the City Manager to sign the negotiated contract for services with Hartzog & Crabill, Inc. for Traffic Signal Design and Maintenance, subject to final language approval by the City Manager and the City Attorney. ATTACHMENTS: 1. Request for Proposal 2. Copies of the Proposals are available in the Community Development Department 3. Draft Contract with KOA Corporation for Traffic Engineering Services 4. Draft Contract with Hartzog & Crabill for Traffic Signal Design and Maintenance. SACommunity Development\ADMIN\AGMTS \RFP's \Traffic \cc agenda report 080820.doc �� +� July 2008 REQUEST FOR QUALIFICATIONS AND PROPOSAL (RFQ/RFP) TRAFFIC ENGINEERING, ANALYSIS AND REVIEW SERVICES FOR THE CITY OF MOORPARK BARRY K. HOGAN DEPUTY CITY MANAGER CITY OF MOORPARK 799 MOORPARK AVENUE MOORPARK, CA. 93021 805 - 517 -6233 CC ATTACHMENT 1 TABLE OF CONTENTS PAGE INTRODUCTION 3 BACKGROUND 3 SCOPE OF SERVICES 3 PROPOSAL CONTENT & FORMAT 4 PROPOSAL EVALUATION & SELECTION 7 Attachment: Draft Professional Services Agreement 2 I INTRODUCTION The City of Moorpark is requesting qualifications and proposals for licensed traffic engineer and traffic analysis review services. Services will include, but not be limited to review of traffic analyses for development projects consistent with established City of Moorpark Municipal Code, Circulation Element LOS, the latest published ITE Trip Generation Manual and industry standards, traffic engineering, and conceptual reviews. The work is to be performed on a lump sum basis for review of traffic analyses and on a time a material basis at an approved hourly rate for traffic engineering services. II BACKGROUND For a number of years the City of Moorpark has retained the services of a licensed traffic engineer to review traffic studies and keep the City's traffic model current. Those services were recently severed, and the City is looking for a replacement. III SCOPE OF WORK The traffic engineering /traffic analysis services will include all services performed by the Traffic Engineer, Traffic Engineer's employees, and the Traffic Engineer's consultants. They include, but are not limited to all responsibilities outlined in this Scope of Services and typically required for conceptual review, traffic engineering and traffic analysis review. The Traffic Engineer shall retain the services for all necessary consultants necessary to perform this Scope of Work. The City will furnish electronic copies of the existing Land Use and Circulation Elements, electronic copies of the traffic analysis and electronic copies of plans for proposed projects for each traffic analysis to be reviewed. The City reserves the right to accept or reject consultants proposed by the Traffic Engineer. Notice will be given of any rejection prior to signing of the final Professional Services Agreement. The Traffic Engineer will be required to coordinate with the Community Development Department Case Planner to provide review and constructive comments and recommendations to the Planning Director for approval on the street design and traffic analysis, consistent with City of Moorpark Municipal Code, Land Use Element and Circulation Element of the Moorpark General Plan, industry standards and the latest published edition of the ITE Trip Generation Manual as further defined below: Conceptual Review When requested, the Traffic Engineer will be required to review the Conceptual Site Plan submitted as a requirement of entitlement case processing. The review would consist of general evaluation of completeness; appropriateness of proposed internal street system, proposed driveways and planed or proposed signalization; and consistency with City of Moorpark Municipal Code, ITE Trip Generation Manual, industry standards. The Traffic Engineer's written review comments and recommendations shall be returned to the Planning Director within turn - around time periods approved by the City in it's acceptance of the Traffic Engineer's proposal. The Planning Director shall be the final authority for completeness of Conceptual Site Plan submittals. Review of Traffic Analysis Reports The Traffic Engineer will be required to prepare a Traffic Analysis Review of the traffic analysis submitted as a requirement of entitlement case processing. The Review would consist of comments on completeness, report recommendations, proposed street improvements, including proposed driveways and alleys, and evaluation of street intersections and signal modifications, consistent with City of Moorpark Municipal Code and General Plan requirements and industry standards. The Traffic Engineer's written review comments shall be returned to the Planning Director within turn - around time periods approved by the City's acceptance of the Traffic Engineer's proposal. The Planning Director shall be the final authority for completeness of Traffic Analysis Report submittals. Traffic Engineering The Traffic Engineer will be required to review existing striping, level of service analysis, PEER, Fact Sheet, intersections, signalization and other traffic related issues as requested. The review will include consistency with City of Moorpark Municipal Code, the Land Use Element and Circulation Element of the Moorpark General Plan, industry standards, and the latest published ITE Trip Generation Manual. The Traffic Engineer will provide the City a written recommendation for approval of plans and specifications, once all plan check comments have been addressed. Other Services as Requested The City may desire other Traffic Engineering services from time to time and may request the Traffic Engineer to provide a proposal for a specific task to be performed at the approved hourly rates or on a lump sum basis. The terms will be specified at the time of the request for proposal. IV. PROPOSAL CONTENT /FORMAT The Traffic Engineer shall submit a Technical Qualifications Proposal and a Detailed Cost Proposal. The packet shall be sealed and marked on the outside of the envelope "TRAFFIC ENGINEERING ANALYSIS AND REVIEW SERVICES" - with the name of the firm. Four (4) copies of the Proposal are required. 4 Submit proposals to: City of Moorpark Community Development Department 799 Moorpark Avenue Moorpark, CA 93021 NO LATER THAN 5:00 P.M., July 25, 2008 Technical Qualifications The Technical Qualifications Proposal submittal shall follow the format identified below, be numbered accordingly and submitted with the Cost Proposal identified below. Name and address of firm 2. Principal(s) of firm, Project Licensed Traffic Engineer hereafter (TRAFFIC ENGINEER), Project Team members and how long proposed project team has worked together. 3. Experience of firm in providing requested scope of services, specifically referencing similar consulting services to other agencies, particularly in Ventura County. Provide a contact person for the agency that may provide information regarding the Traffic Engineer's work. 4. A listing of other project and references for other projects that the Traffic Engineer believes would further support their qualifications for this assignment. 5. Experience of the Traffic Engineer, including projects that the Traffic Engineer has managed and number of years the Traffic Engineer has worked for their current firm. 6. Identify developers that consultant and any member of professional staff are currently working with, and have worked with in the past year.. Section VI. A. of the City's standard Professional Services Agreement requires that the consultant covenant that neither they nor any officer or principal of their firm have any interests, nor shall they acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services under the agreement. It further requires that the consultant covenant that in the performance of the agreement, they will employ no person having such interest as an officer, employee, agent, or subcontractor, and that the consultant has not contracted with nor is performing any services directly or indirectly, with the developer(s) and /or property owner(s) and /or firm(s) and /or partnerships and /or public agency(ies) owning property and /or processing an entitlement application for property in the City or its Area of Interest, now or within the past one (1) year. In addition, the consultant must covenant and agree that they and /or their subcontractors shall provide no service or enter into any contract with any developer(s) and /or property owner(s) y J 4 and /or firm(s) and /or partnership(s) and /or public agency(ies) owning property and /or processing an entitlement application for property in the City or its Area of Interest, while under contract with the City of Moorpark and for a one -year time period following termination of this Agreement. 7. A listing of all consultants /subcontractors the Traffic Engineer proposes to utilize on this project. City reserve the right to approve or reject any consultant proposed by the Traffic Engineer for this project. After the proposal deadline, substitution of consultants may only be made by permission of the City. Identify experience of consultant and provide a list of relevant projects /references demonstrating their qualifications for this work, specifically plan review and inspection services. 8. List any pending or previous litigation over the past five years related to your firm's work in the Traffic Engineering field. 9. General Proposal Terms and Conditions are attached to this RFP /RFQ; submittal of a proposal by Traffic Engineer signifies Traffic Engineer understands, and will abide by, these Terms & Conditions. 10. Exceptions - The City reserves the right, without obligation, to grant exceptions to the RFP /RFQ. However, the Traffic Engineer must note any exceptions, and their reasons, in their proposal. Exceptions taken will be considered during the evaluation process. 11. A general narrative, not to exceed one page, describing why the Traffic Engineer is qualified for this assignment. Also, provide a statement of overall approach and methodologies the Traffic Engineer proposes to undertake in order to meet the goals of the City. • • • • The Traffic Engineer shall provide a schedule of Hourly Billing Rates for various levels of staff who may participate in the services, including at a minimum the following: Licensed Traffic Engineer in the State of California Review of Traffic Analyses will be on a lump sum basis based upon each traffic analysis review requested. Conceptual design review will be on a lump sum basis. Traffic engineering will be based upon the particular job and may be on a lump sum or an amount not to exceed depending upon the traffic engineering project. Performance Schedule The Traffic Engineer shall provide a proposed schedule of performance to include at a minimum, the following: 6 Traffic Analysis Report Review: The Traffic Engineer will return written comments via email or regular mail on traffic analyses report review within hours /days of receipt. Meetings: The Traffic Engineer will respond to requests for a meeting with staff and /or the applicant and applicant's consultant within days /hours of receipt of request for such meeting from City Staff. The cost proposal shall be submitted with the Technical Qualifications Proposal in a sealed envelope marked "TRAFFIC ENGINEERING ANALYSIS AND REVIEW PROPOSAL ", with the Traffic Engineering firm name. Four (4) copies of the Proposal are required. Payments to the Traffic Engineer shall be made on a monthly basis and shall be based on the services performed within the billing period. Billings shall clearly indicate the project identifier and Control Code as assigned by the city for each entitlement project. Traffic Engineer shall not be reimbursed for travel expenses associated with work on this project unless the City specifically authorizes certain out -of -town travel. Travel to client's offices, the sites, similar projects, material manufacturers, and jurisdictional agencies are not considered "out of town" travel. VI PROPOSAL EVALUATION AND SELECTION The Technical Qualifications and Cost Proposal must be sealed and received before 5:00 P.M., July 25, 2008. All proposals properly received before the aforementioned date and time will be evaluated by a Review Committee. The firms will be ranked and interviews will be scheduled with the top- ranked firms, as determined necessary. The firm ranked as the most qualified to provide the requested services may be invited to negotiate a final agreement. If an agreement is not reached, negotiations may be terminated and commenced with the next most qualified firm. The City reserves the right to conduct additional interviews after the cost proposals are opened. The City reserves the right to negotiate the specific requirements and costs using the selected proposal as a basis. The City reserves the right to reject any or all proposals at its sole discretion. The City is not liable for any costs incurred by the Traffic Engineer or their consultants in preparing the proposal. AGREEMENT FOR PROFESSIONAL BETWEEN THE CITY OF MOORPARK AND _ FOR TRAFFIC ENGINEERING AND TRAFFIC REVIEW SERVICES SERVICES ANALYSIS This Agreement is made and entered into in the City of Moorpark on this th day of July, 2008, by and between the City of Moorpark ( "City "), a public body, corporate and politic, and , a California corporation providing consulting services ( "Consultant"). WITNESSETH WHEREAS, City has the need for professional evaluation and analysis regarding licensed traffic engineeringand traffic analysis review services within the City of Moorpark; and WHEREAS, City desires to contract for such services with a private consultant in anticipation that said private consultant can provide such services in a manner acceptable to the City; and WHEREAS, Consultant is experienced in providing such services and has the proper experience, certifications and background to carry out the duties involved; and WHEREAS, Consultant has submitted to City a Proposal letter dated July 18, 2008 which is attached hereto as Exhibit A. NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: I. Term This Agreement shall commence on , 2008 and shall remain and continue in effect until the tasks described herein, and on any amendments hereto, are completed, unless sooner terminated pursuant to the provisions of this Agreement. 2. Services City hereby retains Consultant in a contractual capacity to perform construction management services as set forth in Exhibit A, Proposal, attached hereto and incorporated herein. If the Proposal is modified by this Agreement, or in the event there is a conflict between the provisions of the Proposal and this Agreement, the language contained in this Agreement shall take precedence. Professional Services Agreement between Page 1 of 8 City of Moorpark and 3. Performance Consultant shall at all times faithfully, competently and to the best of his /her ability, experience, and talent, perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder to meet its obligations under this Agreement. 4. Responsible Individuals The individual directly responsible for Consultant's overall performance of the Agreement provisions herein above set forth and to serve as principal liaison between Consultant and City shall be , or designee. The City Manager, or his designee, shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant. The City Manager is authorized to act on City's behalf to execute all necessary documents which increase the scope of services or change Consultant's compensation, subject to Section 5 hereof. 5. Payment a) For providing services as specified in this Agreement, City shall pay and Consultant shall receive as full compensation a total sum based on fees as shown in Proposal, in no event shall total compensation for the herein described work exceed that described in the proposal without prior written authorization from City. b) In the event that additional work is required of Consultant, beyond the Scope of Work for this Agreement, Consultant may be authorized to undertake and complete such additional work only if such authorization is provided in writing, identifying the exact nature of the additional work required and a "not -to- exceed" fee to be paid by City for such work. c) Consultant will submit invoices at the completion of each of the tasks. Invoices shall be submitted on or about the first business day of the month, or as soon thereafter as practical, for services provided. Payment shall be made within 30 -days of receipt of each invoice as to all non - disputed fees. If the City disputes any of Consultant's fees it shall give written notice to Consultant within 15 -days of receipt of an invoice of any disputed fees set forth on the invoice. Professional Services Agreement between Page 2 of 8 City of Moorpark and CS 6. Incorporation by Reference All exhibits herein referenced are hereby incorporated into and made a part of the Agreement. 7. Suspension or Termination of Agreement without Cause a) The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. b) In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of the termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City pursuant to Section 5. 8. Default of Consultant a) The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default. b) If the City Manager or his /her designee determines that the Consultant is in default in the performance of any terms or conditions of this Agreement, the City Manager shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. Professional Services Agreement between Page 3 of 8 City of Moorpark and , �+ G 9 9. Indemnification for Professional Liability Consultant agrees to indemnify, protect, defend, and hold harmless the City, and any and all of its officials, employees, and agents from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or sub - consultants in the performance of professional services under this Agreement. 10. Indemnification for Other than Professional Liability Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend, and hold harmless City, and any and all of its officials, employees and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, or are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees, subconsultants, or contractors and subcontractors of Consultant. 11. General Indemnification Provisions Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section from each and every subconsultant, contractor, subcontractor, or any other person or entity involved by, for, with, or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this agreement or this section. City does not and shall not waive any .rights that it may have against Consultant by reason of this Section, because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions shall apply regardless of whether or not said insurance policies are determined to be applicable to any losses, liabilities, damages, costs and expenses described in Sections 9 and 10 of this Agreement. Professional Services Agreement between Page 4 of 8 City of Moorpark and 12. Insurance Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this Agreement. 13. Independent Consultant a) Consultant is and shall at all times remain as to the City a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. 14. Notices Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by 1) personal service, 2) delivery by a reputable document delivery service, which provides a receipt showing date and time of delivery, or 3) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager Consultant: Professional Services Agreement between Page 5 of 8 City of Moorpark and 15. Assignment The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. It is understood and acknowledged by the parties that Consultant is uniquely qualified to perform the services provided for in this Agreement. 16. Entire Agreement This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete Agreement between the parties hereto. No oral Agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral Agreement, understanding, or representation be binding on the parties hereto. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. No waiver of any provision of this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provisions. No waiver shall be binding, unless executed in writing by the party making the waiver. 17. Anti - Discrimination In the performance of the terms of this Agreement, Consultant agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of the age, race, color, creed, sex, sexual orientation, national origin, ancestry, religion, physical disability, medical disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in the Labor Code of the State of California Section 1735. 18. General Conditions a) Consultant agrees not to work for any private firm located within the City limits or its Area of Interest, or for any public agency where its jurisdiction includes all or part of the City without the prior written consent of the City, during the term of this Agreement. Furthermore, Consultant agrees to limit its actions related to economic interest and potential or real conflicts of interest as such as defined by applicable State law to the same standards and requirements for designated City employees. Professional Services Agreement between Page 6 of 8 City of Moorpark and b) City shall not be called upon to assume any liability for the direct payment of any salary, wage or other compensation to any person employed by Consultant performing services hereunder for City. c) At the time of 1) termination of this Agreement or 2) conclusion of all work, all original reports, documents, calculations, electronic media, notes, and other related materials whether prepared by Consultant or its subcontractor(s) or obtained in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of City. Any word processing computer files provided to City shall use Microsoft Word for Windows software. d) Nothing contained in this Agreement shall be deemed, construed or represented by City or Consultant or by any third person to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between City and Consultant. e) In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. f) Cases involving a dispute between City and Consultant may be decided by an arbitrator if both sides agree in writing on the arbitration and on the arbitrator selected, with costs proportional to the judgment of the arbitrator. g) The captions and headings of the various Sections and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Sections and Exhibits hereof. h) If any portion of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will never - the -less continue in full force without being impaired or invalidated in any way. i) No officer, employee, director or agent of the City shall participate in any decision relating to this Agreement which affects the individual personal interest or the interest of any corporation, partnership, or association in which he is directly or indirectly interested, or shall any such person have any interest, direct or indirect, in this Agreement or the provisions thereof. Professional Services Agreement between Page 7 of 8 City of Moorpark and 19. Governing Law The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions or covenants referred to herein shall be filed in the applicable court in Ventura County, California. 20. Authority to Execute this Agreement The person or persons executing this Agreement on behalf of Consultant warrants and represents that this individual has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF MOORPARK: CONSULTANT: Steven Kueny City Manager ATTEST: Deborah S. Traffenstedt City Clerk Exhibit "A": Proposal for Professional Services Exhibit "B ": Insurance Requirements Professional Services Agreement between Page 8 of 8 City of Moorpark and Insurance Requirements Prior to the beginning of and throughout the duration of the Work, Consultant will maintain insurance in conformance with the requirements set forth below. Consultant will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Consultant agrees to amend, supplement or endorse the existing coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to City. Consultant shall provide the following types and amounts of insurance: Commercial General Liability Insurance using Insurance Services Office "Commercial General Liability" policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $2,000,000 per occurrence and $5,000,000 in the aggregate. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described above. If Consultant or Consultant employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the consultant and "Covered Professional Services" as designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of the insured and must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this Agreement. Worker's Compensation on a state - approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident or disease. Professional Services Agreement between City of Moorpark and Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Bests rating of A- or better and a minimum financial size VII. General conditions pertaining to provision of insurance coverage by Consultant. Consultant and City agree to the following with respect to insurance provided by Consultant: 1. Consultant agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds City, its officials, employees, servants, agents, and independent consultants ( "Agency indemnities "), using standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees to require all contractors and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractor's to do likewise. 3. All insurance coverage and limits provided by Consultant and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations limits the application of such insurance coverage. 4. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 5. No liability policy shall contain any provision or definition that would serve to eliminate so- called "third party action over" claims, including any exclusion for bodily injury to an employee of the insured or any contractor or subcontractor. 6. All coverage types and limits required are subject to approval, modification, and additional requirements by the City, as the need arises. Consultant shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City's protection without City's prior written consent. 7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Consultant's general liability policy, shall be delivered to City at or Professional Services Agreement between City of Moorpark and _ 6imr e prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City option. 8. Certificates are to reflect that the insurer will provide 30 days notice to City of any cancellation of coverage. Consultant agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the certificate. 9. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Consultant or any subconsultant, is intended to apply first and on a primary, non - contributing basis in relation to any other insurance or self insurance available to City. 10. Consultant agrees to ensure that subcontractors, and any other party involved with the project, who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 11. Consultant agrees not to self- insure or to use any self- insured retention or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self- insure its obligations to City. If Consultant's existing coverage includes a deductible or self- insured retention, the deductible or self- insured retention must be declared to the City. At that time the City shall review options with the Consultant, which may include reduction or elimination of the deductible of self- insured retention, substitution of other coverage, or other solutions. 12. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial Professional Services Agreement between City of Moorpark and � M 1 �' 07 additional cost to the Consultant, the City will negotiate additional compensation proportional to the increased benefit to City. 13. For purposes of applying insurance coverage, only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 14. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 15. Consultant will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the Agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect. 16. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement is required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 17. The provisions of any workers' compensation or similar act will not limit the obligations of Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials, and agents. 18. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a give coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party of insured to be limiting or all - inclusive. 19. These insurance requirements are intended to be separate and distinct from any other provision in this agreement and are intended by the parties here to be interpreted as such. Professional Services Agreement between City of Moorpark and additional cost to the Consultant, the City will negotiate additional compensation proportional to the increased benefit to City. 13. For purposes of applying insurance coverage, only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 14. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 15. Consultant will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the Agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect. 16. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement is required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 17. The provisions of any workers' compensation or similar act will not limit the obligations of Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials, and agents. 18. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a give coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party of insured to be limiting or all - inclusive. 19. These insurance requirements are intended to be separate and distinct from any other provision in this agreement and are intended by the parties here to be interpreted as such. Professional Services Agreement between City of Moorpark and 20. The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Section. 21. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to the City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. 22. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Professional Services Agreement between City of Moorpark and J, # ► �;. COPIES OF THE PROPOSALS ARE AVAILABLE IN THE COMMUNITY DEVELOPMENT DEPARTMENT (under separate cover) CC ATTACHMENT 2 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF MOORPARK AND KOA CORPORATION FOR TRAFFIC ENGINEERING AND TRAFFIC ANALYSIS REVIEW SERVICES This Agreement is made and entered into in the City of Moorpark on this 20th day of August, 2008, by and between the City of Moorpark ( "City "), a public body, corporate and politic, and Koa Corporation, a California corporation providing consulting services ("Consultant )T WITNESSETH WHEREAS, City has the need for professional evaluation and analysis regarding licensed traffic engineering and traffic analysis and review services within the City of Moorpark; and WHEREAS, City desires to contract for such services with a private consultant in anticipation that said private consultant can provide such services in a manner acceptable to the City; and WHEREAS, Consultant is experienced in providing such services and has the proper experience, certifications and background to carry out the duties involved; and WHEREAS, Consultant has submitted to City a Proposal letter dated July 25, 2008 which is attached hereto as Exhibit A. NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: I. Term This Agreement shall commence on August 20, 2008 and shall remain and continue in effect until the tasks described herein, and on any amendments hereto, are completed, unless sooner terminated pursuant to the provisions of this Agreement. 2. Services City hereby retains Consultant in a contractual capacity to perform traffic engineering and analysis services as set forth in Exhibit A, Proposal, attached hereto and incorporated herein. If the Proposal is modified by this Agreement, or in the event there is a conflict between the provisions of the Proposal and this Agreement, the language contained in this Agreement shall take precedence. Professional Services Agreement between Page 1 of 8 City of Moorpark and Koa Corporation CC ATTACHMENT 3 F 3. Performance Consultant shall at all times faithfully, competently and to the best of his /her ability, experience, and talent, perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder to meet its obligations under this Agreement. 4. Responsible Individuals The individual directly responsible for Consultant's overall performance of the Agreement provisions herein above set forth and to serve as principal liaison between Consultant and City shall be Eugene Kao or designee. The City Manager, or his designee, shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant. The City Manager is authorized to act on City's behalf to execute all necessary documents which increase the scope of services or change Consultant's compensation, subject to Section 5 hereof. 5. Payment a) For providing services as specified in this Agreement, City shall pay and Consultant shall receive as full compensation a total sum based on fees as shown in Proposal, in no event shall total compensation for the herein described work exceed that described in the proposal without prior written authorization from City. b) In the event that additional work is required of Consultant, beyond the Scope of Work for this Agreement, Consultant may be authorized to undertake and complete such additional work only if such authorization is provided in writing, identifying the exact nature of the additional work required and a "not -to- exceed" fee to be paid by City for such work. c) Consultant will submit invoices at the completion of each of the tasks. Invoices shall be submitted on or about the first business day of the month, or as soon thereafter as practical, for services provided. Payment shall be made within 30 -days of receipt of each invoice as to all non - disputed fees. If the City disputes any of Consultant's fees it shall give written notice to Consultant within 15 -days of receipt of an invoice of any disputed fees set forth on the invoice. Professional Services Agreement between Page 2 of 8 City of Moorpark and Koa Corporation 6. Incorporation by Reference All exhibits herein referenced are hereby incorporated into and made a part of the Agreement. 7. Suspension or Termination of Agreement. without Cause a) The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. b) In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of the termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City pursuant to Section 5. 8. Default of Consultant a) The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default. b) If the City Manager or his /her designee determines that the Consultant is in default in the performance of any terms or conditions of this Agreement, the City Manager shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. Professional Services Agreement between Page 3 of 8 City of Moorpark and Koa Corporation 9. Indemnification for Professional Liabilit Consultant agrees to indemnify, protect, defend, and hold harmless the City, and any and all of its officials, employees, and agents from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or sub - consultants in the performance of professional services under this Agreement. 10. Indemnification for Other than Professional Liability Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend, and hold harmless City, and any and all of its officials, employees and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, or are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees, subconsultants, or contractors and subcontractors of Consultant. 11. General Indemnification Provisions Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section from each and every subconsultant, contractor, subcontractor, or any other person or entity involved by, for, with, or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this agreement or this section. City does not and shall not waive any rights that it may have against Consultant by reason of this Section, because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions shall apply regardless of whether or not said insurance policies are determined to be applicable to any losses, liabilities, damages, costs and expenses described in Sections 9 and 10 of this Agreement. Professional Services Agreement between Page 4 of 8 City of Moorpark and Koa Corporation 12. Insurance Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this Agreement. 13. Independent Consultant a) Consultant is and shall at all times remain as to the City a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. 14. Notices Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by 1) personal service, 2) delivery by a reputable document delivery service, which provides a receipt showing date and time of delivery, or 3) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager Consultant: Eugene Kao Koa Corporation 1000 Broadway, Suite 340 Oakland, CA 94607 Professional Services Agreement between Page 5 of 8 City of Moorpark and Koa Corporation 15. Assignment The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. It is understood and acknowledged by the parties that Consultant is uniquely qualified to perform the services provided for in this Agreement. 16. Entire Agreement This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete Agreement between the parties hereto. No oral Agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral Agreement, understanding, or representation be binding on the parties hereto. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. No waiver of any provision of this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provisions. No waiver shall be binding, unless executed in writing by the party making the waiver. 17. Anti - Discrimination In the performance of the terms of this Agreement, Consultant agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of the age, race, color, creed, sex, sexual orientation, national origin, ancestry, religion, physical disability, medical disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in the Labor Code of the State of California Section 1735. 18. General Conditions a) Consultant agrees not to work for any private firm located within the City limits or its Area of Interest, or for any public agency where its jurisdiction includes all or part of the City without the prior written consent of the City, during the term of this Agreement. Furthermore, Consultant agrees to limit its actions related to economic interest and potential or real conflicts of interest as such as defined by applicable State law to the same standards and requirements for designated City employees. Professional Services Agreement between Page 6 of 8 City of Moorpark and Koa Corporation b) City shall not be called upon to assume any liability for the direct payment of any salary, wage or other compensation to any person employed by Consultant performing services hereunder for City. c) At the time of 1) termination of this Agreement or 2) conclusion of all work, all original reports, documents, calculations, electronic media, notes, and other related materials whether prepared by Consultant or its subcontractor(s) or obtained in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of City. Any word processing computer files provided to City shall use Microsoft Word for Windows software. d) Nothing contained in this Agreement shall be deemed, construed or represented by City or Consultant or by any third person to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between City and Consultant. e) In the event any action, suit or proceeding is brought.for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. f) Cases involving a dispute between City and Consultant may be decided by an arbitrator if both sides agree in writing on the arbitration and on the arbitrator selected, with costs proportional to the judgment of the arbitrator. g) The captions and headings of the various Sections and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Sections and Exhibits hereof. h) If any portion of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will never - the -less continue in full force without being impaired or invalidated in any way. i) No officer, employee, director or agent of the City shall participate in any decision relating to this Agreement which affects the individual personal interest or the interest of any corporation, partnership, or association in which he is directly or indirectly interested, or shall any such person have any interest, direct or indirect, in this Agreement or the provisions thereof. Professional Services Agreement between Page 7 of 8 City of Moorpark and Koa Corporation �" . c 6 8 19. Governing Law The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions or covenants referred to herein shall be filed in the applicable court in Ventura County, California. 20. Authority to Execute this Agreement The person or persons executing this Agreement on behalf of Consultant warrants and represents that this individual has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF MOORPARK: Steven Kueny City Manager ATTEST: CONSULTANT: Eugene Kao, P.E. Deborah S. Traffenstedt City Clerk Exhibit "A ": Proposal for Professional Services Exhibit "B ": Insurance Requirements Professional Services Agreement between City of Moorpark and Koa Corporation Page 8 of 8 EXHIBIT B Insurance Requirements Prior to the beginning of and throughout the duration of the Work, Consultant will maintain insurance in conformance with the requirements set forth below. Consultant will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Consultant agrees to amend, supplement or endorse the existing coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to City. Consultant shall provide the following types and amounts of insurance: Commercial General Liability Insurance using Insurance Services Office "Commercial General Liability" policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $2,000,000 per occurrence and $5,000,000 in the aggregate. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described above. If Consultant or Consultant employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the consultant and "Covered Professional Services" as designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of the insured and must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this Agreement. Worker's Compensation on a state - approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident or disease. Professional Services Agreement between City of Moorpark and Koa Corporation a fC,► Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Bests rating of A- or better and a minimum financial size VII. General conditions pertaining to provision of insurance coverage by Consultant. Consultant and City agree to the following with respect to insurance provided by Consultant: 1. Consultant agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds City, its officials, employees, servants, agents, and independent consultants ( "Agency indemnities "), using standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees to require all contractors and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractor's to do likewise. 3. All insurance coverage and limits provided by Consultant and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations limits the application of such insurance coverage. 4. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 5. No liability policy shall contain any provision or definition that would serve to eliminate so- called "third party action over" claims, including any exclusion for bodily injury to an employee of the insured or any contractor or subcontractor. 6. All coverage types and limits required are subject to approval, modification, and additional requirements by the City, as the need arises. Consultant shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City's protection without City's prior written consent. 7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Consultant's general liability policy, shall be delivered to City at or Professional Services Agreement between City of Moorpark and Koa Corporation prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City option. 8. Certificates are to reflect that the insurer will provide 30 days notice to City of any cancellation of coverage. Consultant agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the certificate. 9. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Consultant or any subconsultant, is intended to apply first and on a primary, non - contributing basis in relation to any other insurance or self insurance available to City. 10. Consultant agrees to ensure that subcontractors, and any other party involved with the project, who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 11. Consultant agrees not to self- insure or to use any self- insured retention or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self- insure its obligations to City. If Consultant's existing coverage includes a deductible or self- insured retention, the deductible or self- insured retention must be declared to the City. At that time the City shall review options with the Consultant, which may include reduction or elimination of the deductible of self- insured retention, substitution of other coverage, or other solutions. 12. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial Professional Services Agreement between City of Moorpark and Koa Corporation o Ct, .. O-L additional cost to the Consultant, the City will negotiate additional compensation proportional to the increased benefit to City. 13. For purposes of applying insurance coverage, only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 14. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 15. Consultant will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the Agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect. 16. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement is required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 17. The provisions of any workers' compensation or similar act will not limit the obligations of Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials, and agents. 18. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a give coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party of insured to be limiting or all - inclusive. 19. These insurance requirements are intended to be separate and distinct from any other provision in this agreement and are intended by the parties here to be interpreted as such. Professional Services Agreement between City of Moorpark and Koa Corporation ,j ;`=12.)3 20. The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Section. 21. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to the City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. 22. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Professional Services Agreement between City of Moorpark and Koa Corporation ;_Y 4 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF MOORPARK AND HARTZOG AND CRABILL FOR TRAFFIC SIGNAL DESIGN AND MAINTENANCE SERVICES This Agreement is made and entered into in the City of Moorpark on this 20th day of August, 2008, by and between the City of Moorpark ( "City "), a public body, corporate and politic, and Hartzog and Crabill, a California corporation providing consulting services ( "Consultant "). WITNESSETH WHEREAS, City has the need for professional evaluation and analysis regarding licensed traffic signal design and maintenance services within the City of Moorpark; and WHEREAS, City desires to contract for such services with a private consultant in anticipation that said private consultant can provide such services in a manner acceptable to the City; and WHEREAS, Consultant is experienced in providing such services and has the proper experience, certifications and background to carry out the duties involved; and WHEREAS, Consultant has submitted to City a Proposal letter dated July 25, 2008 which is attached hereto as Exhibit A. NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: I. Term This Agreement shall commence on August 20, 2008 and shall remain and continue in effect until the tasks described herein, and on any amendments hereto, are completed, unless sooner terminated pursuant to the provisions of this Agreement. 2. Services City hereby retains Consultant in a contractual capacity to perform traffic signal design and maintenance services as set forth in Exhibit A, Proposal, attached hereto and incorporated herein. If the Proposal is modified by this Agreement, or in the event there is a conflict between the provisions of the Proposal and this Agreement, the language contained in this Agreement shall take precedence. Professional Services Agreement between Page 1 of 8 City of Moorpark and Hartzog and Crabill CC ATTACHMENT 4 _ Y� =� 3. Performance Consultant shall at all times faithfully, competently and to the best of his /her ability, experience, and talent, perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder to meet its obligations under this Agreement. 4. Responsible Individuals The individual directly responsible for Consultant's overall performance of the Agreement provisions herein above set forth and to serve as principal liaison between Consultant and City shall be Trammell Hartzog, or designee. The City Manager, or his designee, shall represent City in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Consultant. The City Manager is authorized to act on City's behalf to execute all necessary documents which increase the scope of services or change Consultant's compensation, subject to Section 5 hereof. 5. Payment a) For providing services as specified in this Agreement, City shall pay and Consultant shall receive as full compensation a total sum based on fees as shown in Proposal, in no event shall total compensation for the herein described work exceed that described in the proposal without prior written authorization from City. b) In the event that additional work is required of Consultant, beyond the Scope of Work for this Agreement, Consultant may be authorized to undertake and complete such additional work only if such authorization is provided in writing, identifying the exact nature of the additional work required and a "not -to- exceed" fee to be paid by City for such work. c) Consultant will submit invoices at the completion of each of the tasks. Invoices shall be submitted on or about the first business day of the month, or as soon thereafter as practical, for services provided. Payment shall be made within 30 -days of receipt of each invoice as to all non - disputed fees. If the City disputes any of Consultant's fees it shall give written notice to Consultant within 15 -days of receipt of an invoice of any disputed fees set forth on the invoice. Professional Services Agreement between Page 2 of 8 City of Moorpark and Hartzog and Crabill 1J, w �i 6. Incorporation by Reference All exhibits herein referenced are hereby incorporated into and made a part of the Agreement. 7. Suspension or Termination of Agreement without Cause a) The City may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. b) In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of the termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City pursuant to Section 5. 8. Default of Consultant a) The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default. b) If the City Manager or his /her designee determines that the Consultant is in default in the performance of any terms or conditions of this Agreement, the City Manager shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. Professional Services Agreement between Page 3 of 8 City of Moorpark and Hartzog and Crabill -9 J 40 9. Indemnification for Professional Liability Consultant agrees to indemnify, protect, defend, and hold harmless the City, and any and all of its officials, employees, and agents from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or sub - consultants in the performance of professional services under this Agreement. 10. Indemnification for Other than Professional Liability Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend, and hold harmless City, and any and all of its officials, employees and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, or are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees, subconsultants, or contractors and subcontractors of Consultant. 11. General Indemnification Provisions Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section from each and every subconsultant, contractor, subcontractor, or any other person or entity involved by, for, with, or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this agreement or this section. City does not and shall not waive any rights that it may have against Consultant by reason of this Section, because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions shall apply regardless of whether or not said insurance policies are determined to be applicable to any losses, liabilities, damages, costs and expenses described in Sections 9 and 10 of this Agreement. Professional Services Agreement between Page 4 of 8 City of Moorpark and Hartzog and Crabill ' 0 ; <1 12. Insurance Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this Agreement. 13. Independent Consultant a) Consultant is and shall at all times remain as to the City a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. 14. Notices Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by 1) personal service, 2) delivery by a reputable document delivery service, which provides a receipt showing date and time of delivery, or 3) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager Consultant: Trammell Hartzog Hartzog and Crabill, Inc. 275 Centennial Way, Suite 208 Tustin, CA 92780 Professional Services Agreement between Page 5 of 8 City of Moorpark and Hartzog and Crabill 1 7 15. Assignment The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the City. It is understood and acknowledged by the parties that Consultant is uniquely qualified to perform the services provided for in this Agreement. 16. Entire Agreement This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete Agreement between the parties hereto. No oral Agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral Agreement, understanding, or representation be binding on the parties hereto. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. No waiver of any provision of this Agreement shall be deemed or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provisions. No waiver shall be binding, unless executed in writing by the party making the waiver. 17. Anti - Discrimination In the performance of the terms of this Agreement, Consultant agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of the age, race, color, creed, sex, sexual orientation, national origin, ancestry, religion, physical disability, medical disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in the Labor Code of the State of California Section 1735. 18. General Conditions a) Consultant agrees not to work for any private firm located within the City limits or its Area of Interest, or for any public agency where its jurisdiction includes all or part of the City without the prior written consent of the City, during the term of this Agreement. Furthermore, Consultant agrees to limit its actions related to economic interest and potential or real conflicts of interest as such as defined by applicable State law to the same standards and requirements for designated City employees. Professional Services Agreement between Page 6 of 8 City of Moorpark and Hartzog and Crabill b) City shall not be called upon to assume any liability for the direct payment of any salary, wage or other compensation to any person employed by Consultant performing services hereunder for City. c) At the time of 1) termination of this Agreement or 2) conclusion of all work, all original reports, documents, calculations, electronic media, notes, and other related materials whether prepared by Consultant or its subcontractor(s) or obtained in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of City. Any word processing computer files provided to City shall use Microsoft Word for Windows software. d) Nothing contained in this Agreement shall be deemed, construed or represented by City or Consultant or by any third person to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between City and Consultant. e) In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. f) Cases involving a dispute between City and Consultant may be decided by an arbitrator if both sides agree in writing on the arbitration and on the arbitrator selected, with costs proportional to the judgment of the arbitrator. g) The captions and headings of the various Sections and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Sections and Exhibits hereof. h) If any portion of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will never - the -less continue in full force without being impaired or invalidated in any way. i) No officer, employee, director or agent of the City shall participate in any decision relating to this Agreement which affects the individual personal interest or the interest of any corporation, partnership, or association in which he is directly or indirectly interested, or shall any such person have any interest, direct or indirect, in this Agreement or the provisions thereof. Professional Services Agreement between Page 7 of 8 City of Moorpark and Hartzog and Crabill 19. Governing Law The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions or covenants referred to herein shall be filed in the applicable court in Ventura County, California. 20. Authority to Execute this Agreement The person or persons executing this Agreement on behalf of Consultant warrants and represents that this individual has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF MOORPARK: CONSULTANT: Steven Kueny City Manager ATTEST: Deborah S. Traffenstedt City Clerk Trammell Hartzog President, HCI Exhibit "A ": Proposal for Professional Services Exhibit "B ": Insurance Requirements Professional Services Agreement between Page 8 of 8 City of Moorpark and Hartzog and Crabill ■ Insurance Requirements Prior to the beginning of and throughout the duration of the Work, Consultant will maintain insurance in conformance with the requirements set forth below. Consultant will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Consultant agrees to amend, supplement or endorse the existing coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to City in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to City. Consultant shall provide the following types and amounts of insurance: Commercial General Liability Insurance using Insurance Services Office "Commercial General Liability" policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $2,000,000 per occurrence and $5,000,000 in the aggregate. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described above. If Consultant or Consultant employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the consultant and "Covered Professional Services" as designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of the insured and must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this Agreement. Worker's Compensation on a state - approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident or disease. Professional Services Agreement between City of Moorpark and Hartzog and Crabill .,�'�� Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Bests rating of A- or better and a minimum financial size VII. General conditions pertaining to provision of insurance coverage by Consultant. Consultant and City agree to the following with respect to insurance provided by Consultant: Consultant agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds City, its officials, employees, servants, agents, and independent consultants ( "Agency indemnities "), using standard ISO endorsement No. CG 2010 with an edition prior to 1992. Consultant also agrees to require all contractors and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right of subrogation prior to a loss. Consultant agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractor's to do likewise. 3. All insurance coverage and limits provided by Consultant and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations limits the application of such insurance coverage. 4. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 5. No liability policy shall contain any provision or definition that would serve to eliminate so- called "third party action over" claims, including any exclusion for bodily injury to an employee of the insured or any contractor or subcontractor. 6. All coverage types and limits required are subject to approval, modification, and additional requirements by the City, as the need arises. Consultant shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City's protection without City's prior written consent. 7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Consultant's general liability policy, shall be delivered to City at or Professional Services Agreement between City of Moorpark and Hartzog and Crabill 4r 'O 4.J ) prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Consultant or deducted from sums due Consultant, at City option. 8. Certificates are to reflect that the insurer will provide 30 days notice to City of any cancellation of coverage. Consultant agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the certificate. 9. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Consultant or any subconsultant, is intended to apply first and on a primary, non - contributing basis in relation to any other insurance or self insurance available to City. 10. Consultant agrees to ensure that subcontractors, and any other party involved with the project, who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 11. Consultant agrees not to self- insure or to use any self- insured retention or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self- insure its obligations to City. If Consultant's existing coverage includes a deductible or self- insured retention, the deductible or self- insured retention must be declared to the City. At that time the City shall review options with the Consultant, which may include reduction or elimination of the deductible of self- insured retention, substitution of other coverage, or other solutions. 12. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial Professional Services Agreement between City of Moorpark and Hartzog and Crabill 14 J additional cost to the Consultant, the City will negotiate additional compensation proportional to the increased benefit to City. 13. For purposes of applying insurance coverage, only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 14. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 15. Consultant will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the Agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect. 16. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement is required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 17. The provisions of any workers' compensation or similar act will not limit the obligations of Consultant under this agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials, and agents. 18. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a give coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party of insured to be limiting or all - inclusive. 19. These insurance requirements are intended to be separate and distinct from any other provision in this agreement and are intended by the parties here to be interpreted as such. Professional Services Agreement between City of Moorpark and Hartzog and Crabill _.i 20. The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Section. 21. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to the City. It is not the intent of City_ to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. 22. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Professional Services Agreement between City of Moorpark and Hartzog and Crabill I" ,_I 11 Jlt;�