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HomeMy WebLinkAboutItem 11j - Arcadia Transit Daily Operation DATE: August 16, 2022 TO: Honorable Mayor and City Council FROM: Jason Kruckeberg, Assistant City Manager/Development Services Director Philip A. Wray, Deputy Director of Development Services/City Engineer By: Linda Hui, Transportation Services Manager SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH FIRST TRANSIT, INC. FOR A THREE-YEAR CONTRACT WITH TWO ONE-YEAR OPTIONAL EXTENSIONS FOR THE DAILY OPERATION OF THE ARCADIA TRANSIT DIAL-A-RIDE AND FIXED ROUTE SYSTEM WITH A YEAR- ONE COST OF $2,260,859 FOR 2022-23. Recommendation: Approve SUMMARY Arcadia Transit is currently operated and maintained by First Transit, Inc., a contracted service provider since October 31, 2017. The current service contract with First Transit will expire on October 31, 2022. Federal Transit Administration (“FTA”) funding provisions require that the transit service contract be competitively bid every five years at a minimum. In order to meet this requirement, a Request for Proposals (“RFP”) was issued soliciting bids for the operation, maintenance, and administration of the Arcadia Transit system. Two (2) proposals were received, and each was evaluated and ranked by a panel consisting of City of Arcadia (“City”) staff and one independent reviewer. Based on the established evaluation criteria, the panel selected First Transit, the incumbent, as the preferred contractor. It is recommended that the City Council approve, and authorize and direct the City Manager to enter into a Professional Services Agreement with First Transit. for the daily operation of the Arcadia Transit dial-a-ride and fixed route system for a three-year base contract and two optional one-year extensions with a year-one amount of $2,260,859, and a total amount not to exceed $13,667,103 for the entire five years. BACKGROUND Since 1975, the City has operated a transportation system that provided public transportation to individuals traveling within the City. It was designed to provide local services for seniors, disabled, and for those individuals whose transportation needs were not met by the regional transit services. Up until 2016, Arcadia Transit was a general Award Contract for Arcadia Transit August 16, 2022 Page 2 of 5 public dial-a-ride service only. In November 2015, the City Council approved recommendations to end general public dial-a-ride service, and to provide a two-tier transit system – a fixed route service for the general public and a dial-a-ride service for seniors and people with disabilities. In June 2016, the City implemented these recommended changes. Arcadia Transit currently provides a dial-a-ride service for senior/disabled residents and a fixed route service for the general public through a contracted service provider, First Transit. The Arcadia Transit fleet consists of 18 ADA-equipped cut-a-way buses and vans. After several decades with Southland Transit, Inc., in 2017, First Transit replaced Southland Transit as the City’s service provider. First Transit, with various fleet types and operational characteristics, provides all management, operation, staffing, and maintenance for the service. The current contract with First Transit is a five-year contract (three base years and two additional optional years), which will expire on October 31, 2022. DISCUSSION On May 17, 2022, the RFP package was released, soliciting bids for the operation, maintenance and administration of the Arcadia Transit service. The RFP was posted on the City’s website, advertised on Arcadia Weekly, and a notice was sent to eight firms known to provide the needed and desired services. Through the process, the City received several inquiries from four interested firms, which led to the issuance of an addendum to the RFP package on June 16, 2022. Addendum 1 addressed questions and comments submitted by potential bidders. (See Attachment “A” for a summary of the RFP process). On June 30, 2022, the City received two proposals, as shown in the table below: Firm RFP Cost Proposal (5 years) Dial-A-Ride Fixed Route Total First Transit, Inc. $5,962,243 $7,779,140 $13,741,383 Southland Transit, Inc. $6,648,407 $8,013,741 $14,662,150 A panel consisting of three City staff members and one independent municipal transit professional reviewed each proposal and interviewed each firm. The proposals and interviews were evaluated according to the established and stated criteria, including technical aspects, financial aspects and organizational and management aspects. After careful consideration, the evaluation panel unanimously selected First Transit to proceed to the next step of the selection process, contract negotiations. The selection panel determined that First Transit was the better and more qualified of the two firms. First Transit, a well-established company and the incumbent service provider, is located within the required distance from the City. It has an existing, well-equipped facility to Award Contract for Arcadia Transit August 16, 2022 Page 3 of 5 handle the City’s transit vehicles. All operations for Arcadia Transit will continue to be run from First Transit’s facility located at 4337 Rowland Avenue in El Monte. First Transit presented a strong, experienced management team for operation and maintenance, including a project manager who understands the transit needs of the City as well as the importance of community involvement and outreach. First Transit’s proposal also included a suite of technology programs that provide not only operating efficiency, but also customer service improvements. First Transit will provide software and hardware that will provide real-time bus location and arrival information to fixed route customers through an improved mobile phone application. Importantly, First Transit’s cost proposal for the five-year contract is lower than Southland Transit’s. This is despite the fact that First Transit’s wage proposal for their drivers and staff is higher than Southland Transit’s, which will hopefully help retain staff during this challenging hiring period. Another benefit of the selection of First Transit, the incumbent, is that a transition plan will not be necessary and should be seamless service provision to users of the system. A meeting with First Transit was held on July 27, 2022, to negotiate a few items including the project manager’s time-allocation to Arcadia Transit, additional staffing allocation numbers, and the transit mobile application features. As a result of the meeting, the cost proposal was reduced by $74,280. It is recommended that a Professional Services Agreement with First Transit be approved for a base term of three years, with two optional one-year extensions. The total cost for the full five years of the contract, should all options be exercised, is $13,667,103. The total contract cost for dial-a-ride service is $5,930,328 for up to 14,000 annual dial-a-ride service hours. The total contract cost for fixed-route service is $7,736,775 for 15,000 annual fixed route hours for the first contract year and 22,000 annual fixed route hours for each year after. The additional fixed route hours after the first year will cover planned service modifications to improve the headways and to expand the service area. The proposed contract price is based on the standard method of combining overhead fixed cost plus revenue service hour (variable) cost. A revenue service hour is the time when a bus is available to riders – when a dial-a-ride bus arrives at the pickup appointment or a fixed route bus starts the route. Revenue service hours do not include the time leaving or returning to the bus yard. The hours will vary based on the service demand; however, they are capped at 29,000 hours the first year and 36,000 hours each year after the first year. If the full service hours are utilized, the maximum obligation to the City over the five-year term of the contact is $13,667,103. Award Contract for Arcadia Transit August 16, 2022 Page 4 of 5 Annual projected costs for dial-a-ride and fixed route services are listed below. Contract Year Dial-A-Ride Fixed Route Total Year 1 $1,094,641 $1,166,218 $2,260,859 Year 2 $1,141,560 $1,549,718 $2,691,278 Year 3 $1,186,611 $1,611,928 $2,798,539 Year 4 $1,230,479 $1,672,338 $2,902,817 Year 5 $1,277,037 $1,736,573 $3,013,610 Total $5,930,328 $7,736,775 $13,667,103 ENVIRONMENTAL ANALYSIS The Professional Services Agreement with First Transit is not considered a project as defined by California Environmental Quality Act (“CEQA”) §15378; as a service contract of this nature is considered ministerial. FISCAL IMPACT Currently, Arcadia Transit operations is funded exclusively using transportation fund sources; including Metro’s local transit Formula Allocations which include state and local transportation funds, Proposition A Local Return, and Measure R Local Return. The general breakdown of how these funds are currently budgeted is as follows. Please note that this is just an example using the current fiscal year. Fund (FY 2022-23 Budget) Percentage Formula Allocation Program 42% Measure R Local Return 23% Proposition A Local Return 35% It is anticipated that these various transit funds will be used in the same general manner over time to fund the continued operation of Arcadia Transit. There are adequate funds in all of these revenue sources to fully fund Arcadia Transit for the five potential years of this contract. RECOMMENDATION It is recommended that the City Council approve, and authorize and direct the City Manager to execute a Professional Services Agreement with First Transit, Inc. for a three- year contract with two one-year optional extensions for the daily operation of the Arcadia Transit Dial-A-Ride and Fixed Route System with a year-one cost of $2,260,859 for 2022- 23. Award Contract for Arcadia Transit August 16, 2022 Page 5 of 5 Attachments: “A” – Summary of RFP Process “B” – Proposed Professional Services Agreement Attachment “A” REQUEST FOR PROPOSAL PROCESS SUMMARY 2022 Management and Operation of Arcadia Transit System 1. Recommended Firm: First Transit, Inc. 2. Bid/Proposed Price: $13,741,383 for 5 years 3. Recommended Price: Not to exceed $13,667,103 for 5 years 4. RFP Issued: May 17, 2022 5. Proposal Due: June 30, 2022 6. Interview: July 21, 2022 7. Proposals Received: 2 8. Evaluation Information A. Evaluation Criteria and Weight: -Technical - 30% -Financial - 35% -Organization & Management - 35% B. Proposers Names: -First Transit, Inc. -Southland Transit, Inc. 9. Protest Received: None DR A F T 1 Updated Feb. 2020 CITY OF ARCADIA PROFESSIONAL SERVICES AGREEMENT REGARDING ARCADIA TRANSIT OPERATION AND MAINTENANCE SERVICES This Agreement is made and entered into as of ________________, 2022 by and between the City of Arcadia, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 240 West Huntington Drive, Arcadia, California 91066 (“City”), and First Transit, Inc., a California CORPORATION, with its principal place of business at 600 Vine Street, Suite 1400, Cincinnati, Ohio 45202 (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement. RECITALS A. City is a public agency of the State of California and is in need of professional services for the following project: Operation, Maintenance and Management of Arcadia Transit System (hereinafter referred to as “the Project”). B. Consultant is duly licensed and has the necessary qualifications to provide such services. C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein. AGREEMENT NOW, THEREFORE, IT IS AGREED AS FOLLOWS: 1. Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional transportation services for the operation, maintenance, and management of Arcadia Transit system necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 2. Compensation. a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B.” b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of thirteen million, six hundred sixty-seven thousand one hundred three dollars ($ 13,667,103). Payments to Consultant for work performed will be made on a monthly billing basis. 3. Additional Work. DR A F T 2 Updated Feb. 2020 If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement. 4. Maintenance of Records. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City. 5. Term The term of this Agreement shall be from October 31, 2022 to October 31, 2025, unless earlier terminated as provided herein. Consultant shall perform its services in a prompt and timely manner within the term of this Agreement and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). The Notice to Proceed shall set forth the date of commencement of work. At the end of the said term, City may exercise the option to extend the Agreement for two one-year terms. 6. Delays in Performance. a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non- performing party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint. b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. 7. Compliance with Law. a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement. DR A F T 3 Updated Feb. 2020 8. Standard of Care Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub- Consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 9. Assignment and Subconsultant Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder. 10. Independent Contractor Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. 11. Insurance. Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subConsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subConsultant has secured all insurance required under this section; provided, however, that in lieu thereof, the Consultant may provide evidence to the City that all subConsultants are additional insureds under the Consultant’s policies of insurance. a. Commercial General Liability (i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: DR A F T 4 Updated Feb. 2020 (1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following: (1) Bodily Injury and Property Damage (2) Personal Injury/Advertising Injury (3) Premises/Operations Liability (4) Products/Completed Operations Liability (5) Aggregate Limits that Apply per Project (6) Explosion, Collapse and Underground (UCX) exclusion deleted (7) Contractual Liability with respect to this Agreement (8) Property Damage (9) Independent Consultants Coverage (iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability (i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto). (iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. c. Workers’ Compensation/Employer’s Liability (i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability DR A F T 5 Updated Feb. 2020 for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. (ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. d. Professional Liability (Errors and Omissions) At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required (i) The following insurance limits are required for the Agreement: Combined Single Limit Commercial General Liability $1,000,000 per occurrence/$10,000,000 aggregate for bodily injury, personal injury, and property damage Automobile Liability $1,000,000 per occurrence/$10,000,000 aggregate for bodily injury and property damage with deductible not to exceed $10,000 per incident Employer’s Liability $1,000,000 per occurrence Professional Liability $1,000,000 per claim and aggregate (errors and omissions) (ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required DR A F T 6 Updated Feb. 2020 Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. g. Policy Provisions Required (i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. h. Qualifying Insurers DR A F T 7 Updated Feb. 2020 (i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: (1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. i. Additional Insurance Provisions (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. j. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants. 12. Indemnification. a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify DR A F T 8 Updated Feb. 2020 shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. b. To the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s obligations under the above indemnity shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, but shall not otherwise be reduced. If Consultant’s obligations to defend, indemnify, and/or hold harmless arise out of Consultant’s performance of “design professional services” (as that term is defined under Civil Code section 2782.8), then upon Consultant obtaining a final adjudication that liability under a claim is caused by the comparative active negligence or willful misconduct of the City, Consultant’s obligations shall be reduced in proportion to the established comparative liability of the City and shall not exceed the Consultant’s proportionate percentage of fault. 13. California Labor Code Requirements. a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). b. If the services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from DR A F T 9 Updated Feb. 2020 any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor. 14. Verification of Employment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same. 17. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Los Angeles, State of California. 18. Termination or Abandonment a. City has the right to terminate or abandon any portion or all of the work under this Agreement at any time and without cause by giving ten (10) calendar days written notice to Consultant. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work. Consultant may not terminate this Agreement except for cause. A termination without cause by City shall not act as or be deemed a waiver of any potential known or unknown City claims associated with Consultant’s performance prior to the date of termination. b. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. c. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, serves similar to those terminated. 19. Organization Consultant shall assign Narcisa Montemayor as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City. 20. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above. DR A F T 10 Updated Feb. 2020 21. Notice Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to: CITY: City of Arcadia 240 West Huntington Drive Arcadia, CA 91066 Attn: Jason Kruckeberg Assistant City Manager/Development Services Director CONSULTANT: First Transit, Inc. 7581 Willow Drive, Suite 102 Tempe, AZ 85283 Attn: Nick Promponas Senior Vice President With Copy to: First Group America 600 Vine Street, Suite 1400 Cincinnati, OH 45202 Attn: Fadi Chakbazof and shall be effective upon receipt thereof. 22. Third Party Rights Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant. 23. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 24. Entire Agreement This Agreement, with its exhibits, represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each party acknowledges that no representations, inducements, promises or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This Agreement may not be modified or altered except in writing signed by both Parties hereto. This is an integrated Agreement. DR A F T 11 Updated Feb. 2020 25. Severability The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the provisions unenforceable, invalid or illegal. 26. Successors and Assigns This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 27. Non-Waiver None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing. 28. Time of Essence Time is of the essence for each and every provision of this Agreement. 29. City’s Right to Employ Other Consultants City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects. 30. Prohibited Interests Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no director, official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. When funding for the services is provided, in whole or in part, by an agency of the federal government, Consultant shall also fully and adequately comply with the provisions included in Exhibit “D” (Federal Requirements) attached hereto and incorporated herein by reference (“Federal Requirements”). With respect to any conflict between such Federal Requirements and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control. [SIGNATURES ON FOLLOWING PAGE] DR A F T 12 Updated Feb. 2020 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ARCADIA AND FIRST TRANSIT, INC. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. CITY OF ARCADIA FIRST TRANSIT, INC. By: By: Dominic Lazzaretto Signature City Manager Date: Its: ATTEST: Printed Name By: Date: City Clerk APPROVED AS TO FORM By: Signature By: Its: Stephen P. Deitsch City Attorney Printed Name DR A F T 13 Updated Feb. 2020 EXHIBIT A Scope of Services DR A F T 14 Updated Feb. 2020 EXHIBIT B Schedule of Charges/Payments Consultant will invoice City on a monthly cycle. Consultant will include with each invoice a detailed progress report that indicates the amount of budget spent on each task. Consultant will inform City regarding any out-of-scope work being performed by Consultant. This is a time-and-materials contract. DR A F T 15 Updated Feb. 2020 EXHIBIT C Activity Schedule – Schedule of Services Consultant shall provide professional transit services for the operation, maintenance, and management of the Arcadia Transit System, as outlined in the Scope of Services. The period of services is for three (3) years. City may choose to exercise two (2) optional one-year extensions. DR A F T 16 Updated Feb. 2020 EXHIBIT D COMPENSATION