07 Attachment 2Los Gatos Smart Signals Project ATSPM and VBD/BSP (Project #813-0227) Page 2 of 24 ATTACHMENT 2
VENDOR AGREEMENT
LOS GATOS SMART SIGNALS
Automated Traffic Signal Performance Measures and Virtual Bike Detection/Bike Signal Priority
I. INTRODUCTION
This AGREEMENT is made and entered into on this ______day of _____, 2021 by and between the
TOWN OF LOS GATOS, a California municipal corporation, hereinafter referred to as, LOCAL AGENCY
and Econolite Systems, Inc. (ESI) hereinafter referred to as, CONSULTANT, whose address is 1250 N.
Tustin Avenue, Anaheim, CA 92807. The CONSULTANT is incorporated in the State of California.
This AGREEMENT is made with reference to the following facts.
The LOCAL AGENCY desires to engage CONSULTANT to provide Automated Traffic Signal
Performance Measures (ATSPM) and Virtual Bike Detection/Bike Signal Priority (VBD/BSP)
components of the Los Gatos Smart Signals Project (Project #813-0227 Traffic Signal
Modernization).
The CONSULTANT represents and affirms that it is willing to perform the desired work
pursuant to this AGREEMENT.
The CONSULTANT represents to LOCAL AGENCY that it possesses the professional skills,
qualifications, experience, and resources necessary and has all licenses, permits,
qualifications and approvals of whatsoever nature which are legally required for
CONSULTANT to practice its profession and to timely perform the services described in
this AGREEMENT. The services performed by CONSULTANT will be in a manner consistent
with that level of care and skill ordinarily exercised by other professional consulting firms
providing similar services under similar circumstances at the time, and in the general vicinity
where, the services are performed. CONSULTANT acknowledges LOCAL AGENCY has relied
upon these representations to retain the CONSULTANT.
CONSULTANT shall comply with all applicable laws, codes, ordinances, and regulations of
governing federal, state and local laws.
CONSULTANT shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the
Code of the Town of Los Gatos.
A. The work to be performed under this AGREEMENT is described in Article II entitled
Statement of Work and the approved CONSULTANT's Cost Proposal dated XXX XX, 2021.
The approved CONSULTANT's Scope of Services (Exhibit A) and Cost Proposal (Exhibit B) is
attached hereto and incorporated by reference. If there is any conflict between the
approved Scope of Services or Cost Proposal and this AGREEMENT, this AGREEMENT
shall take precedence.
B. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect,
defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and
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volunteers from and against any and all claims, damages, demands, liability, penalties,
costs, losses and expenses, in law or equity, including without limitation, court costs and
reasonable attorneys' and expert witness fees, to the extent caused by the negligent acts,
errors, or omissions, recklessness or willful misconduct on the part of CONSULTANT, or
any of the CONSULTANT'S officers, employees, or agents or any sub-consultants. The
provisions of this section shall survive termination or suspension of this AGREEMENT.
C. CONSULTANT and the agents and employees of CONSULTANT, in the performance of this
AGREEMENT, shall act in an independent capacity and not as officers or employees or
agents of LOCAL AGENCY. As an independent contractor it or its employees or agents shall
not obtain any rights to retirement benefits or other benefits which accrue to LOCAL
AGENCY employee(s).
D. LOCAL AGENCY is not required to make any deductions or withholdings from the
compensation payable to CONSULTANT under the provisions of this AGREEMENT, and is
not required to issue W-2 Forms for income and employment tax purposes for any of
CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation
hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the
designation of tasks to be performed and the results to be accomplished.
E. Any third party person(s) employed by CONSULTANT shall be entirely and exclusively
under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby
indemnifies and holds LOCAL AGENCY harmless from any and all claims that may be
made against LOCAL AGENCY based upon any contention by any third party that an
employer-employee relationship exists by reason of this AGREEMENT.
F. The services to be performed under this AGREEMENT are unique and personal to the
CONSULTANT. No portion of these services shall be assigned or subcontracted without
the written consent of the LOCAL AGENCY. With prior written consent, the
CONSULTANT may perform some obligations under this AGREEMENT by subcontracting,
but may not delegate ultimate responsibility for performance or assign or transfer
interests under this AGREEMENT. CONSULTANT agrees to reasonably cooperate with
LOCAL AGENCY regarding litigation brought regarding the subject of CONSULTANT’s
work to be performed under this AGREEMENT. CONSULTANT shall be compensated for
its time, and any costs and expenses at its then current hourly rates of compensation,
unless such litigation is brought by CONSULTANT or is based on allegations of
CONSULTANT'S negligent performance or wrongdoing.
G. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts
and omissions of its contractors and subcontractors or Subconsultants, and of persons
either directly or indirectly employed by them, in the same manner as persons directly
employed by CONSULTANT.
H. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made
in writing and signed by the parties hereto; and no oral understanding or agreement
not incorporated herein, shall be binding on any of the parties hereto.
I. The consideration to be paid to CONSULTANT as provided herein, shall be in
compensation for all of CONSULTANT's expenses incurred in the performance hereof,
including travel and per diem, unless otherwise expressly so provided.
II. STATEMENT OF WORK
CONSULTANT agrees to perform the services as outlined in "Exhibit A-Scope of Services"
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within the time frames specified therein, and "Exhibit B - Consultant's Cost Proposal" which
are hereby incorporated by reference and attached.
III. CONSULTANT'S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports at least once a month. The report
should be sufficiently detailed for the LOCAL AGENCY to determine, if
CONSULTANT is performing to expectations, or is on schedule; to provide
communication of interim findings, and to sufficiently address any difficulties or
special problems encountered, so remedies can be developed.
B. CONSULTANT's Project Manager shall meet with LOCAL AGENCY's staff, as needed,
to discuss progress on the AGREEMENT.
IV. TERM AND PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on the date it is signed, and CONSULTANT
shall commence work after notification to proceed by LOCAL AGENCY. The
AGREEMENT shall end on 06/20/23, unless extended by AGREEMENT
amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not
binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved
by LOCAL AGENCY.
V. ALLOWABLE COSTS AND PAYMENTS
A. The method of payment for this contract will be based on actual cost. The LOCAL
AGENCY will reimburse the CONSULTANT for actual costs (including labor costs,
employee benefits, travel, equipment rental costs, overhead and other direct costs)
incurred by the CONSULTANT in performance of the work. The CONSULTANT will
not be reimbursed for actual costs that exceed the estimated wage rates, employee
benefits, travel, equipment rental, overhead, and other estimated costs set forth in
the approved CONSULTANT’S Cost Proposal attached as Exhibit B, unless additional
reimbursement is provided for by amendment to this Agreement.
B. When milestone cost estimates are included in the approved Cost Proposal, the
CONSULTANT shall obtain prior written approval for a revised milestone cost
estimate from the LOCAL AGENCY before exceeding such cost estimate.
C. If CONSULTANT fails to submit required deliverable items according to the
schedule, if any, set forth in Exhibit A, the LOCAL AGENCY shall have the right to
delay payment and/or terminate this Agreement in accordance with the provisions
of this Agreement. No payment will be made prior to approval of any work, nor for
any work performed prior to approval of this Agreement.
D. Progress payments may be made monthly in arrears based on the percentage of
work completed by CONSULTANT. If CONSULTANT fails to submit the required
deliverable items according to the schedule set forth in the Statement of Work,
LOCAL AGENCY shall have the right to delay payment or terminate this
AGREEMENT in accordance with the provisions of Article VI Termination.
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E. Billing. Billing shall be monthly by invoice within thirty (30) days of the rendering of
the service and shall be accompanied by a detailed explanation of the work
performed by whom at what rate and on what date. Invoices shall detail the work
performed on each milestone, on each project as applicable. Invoices shall
follow the format stipulated for the approved Cost Proposal and shall reference
this AGREEMENT number and project title. Final invoice must contain the final
cost and all credits due LOCAL AGENCY that include any equipment purchased
under the provisions of Article XI Equipment Purchase of this AGREEMENT. The
final invoice must be submitted within sixty (60) calendar days after completion
of CONSULTANT's work, unless a later date is approved by the LOCAL AGENCY.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall
be addressed as follows:
Town of Los Gatos
Attn: Mike Vroman
Via email: mvroman@losgatosca.gov
VI. TERMINATION
The Town may terminate this Contract for Town’s convenience at any time by providing Consultant
thirty (30) days written notice. Upon receipt of the notice of termination, Consultant shall immediately
take action not to incur any additional obligations, costs or expenses, except as may be necessary to
terminate its activities. Town shall pay Consultant its reasonable and allowable costs through the
effective date of termination and those reasonable and necessary costs incurred by Consultant to affect
the termination. Thereafter, Consultant shall have no further claims against Town under this Agreement.
All finished and unfinished documents and materials procured for or produced under this Agreement,
including all intellectual property rights Town is entitled to under the Agreement, shall become Town
property upon the date of the termination.
Except on account of an excusable delay described below, if Consultant fails to perform any of the
provisions of this Agreement or so fails to make progress as to endanger timely performance of this
Agreement, Town may give Consultant written notice of the default. Town’s default notice will provide
for thirty (30) days to cure the default. Additionally, Town’s default notice may offer Consultant an
opportunity to provide Town with a plan to cure the default, which shall be submitted to Town within
the time period allowed by Town. If the default cannot be cured or if Consultant fails to cure within the
period allowed by Town, then Town may terminate this Agreement due to Consultant’s breach of this
Agreement. In the event Town terminates this Agreement as provided in this section, Town may
procure, upon such terms and in the manner as Town may deem appropriate, services similar in scope
and level of effort to those so terminated, and Consultant shall be liable to Town for all of its costs. If,
after notice of termination of this Agreement under the provisions of this section, it is determined for
any reason that Consultant was not in default under the provisions of this section, or that the default
was excusable under the terms of this Agreement, the rights and obligations of the parties shall be the
same as if the notice of termination had been issued pursuant to termination for convenience.
Consultant shall not be liable for delay or failure to perform any obligation under and in accordance with
this Agreement, if the delay or failure arises out of fires, floods, earthquakes, epidemics, quarantine
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restriction, government orders, other natural occurrences, strikes, lockouts, freight embargoes, terrorist
acts, insurrections or other civil disturbances, or other similar events.
VII. COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS
A. The CONSULTANT agrees that 48 CFR Part 31, Contract Cost Principles and
Procedures, shall be used to determine the allowability of individual terms of
cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance
with 2 CFR Part 200, Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined
by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are
subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an
Institution of Higher Education, the Cost Principles for Title 2 CFR Part 200,
Uniform Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards shall apply.
E. “Not to Exceed” Compensation. The compensation payable to CONSULTANT for
the services identified in Exhibit A shall not exceed $581,649. CONSULTANT
shall not perform any services beyond the services identified in Exhibit A
without prior written authorization from the LOCAL AGENCY.
VIII. RETENTION OF RECORDS/AUDIT
For the purpose of determining compliance with California Gov. Code§ 8546.7, the
CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents,
papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and
other evidence pertaining to the performance of the AGREEMENT including, but not limited
to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT's
Independent CPA, shall make such workpapers and materials available at their respective
offices at all reasonable times during the AGREEMENT period and for three (3) years from
the date of final payment under the AGREEMENT. LOCAL AGENCY, Caltrans Auditor, FHWA,
or any duly authorized representative of the Federal government having jurisdiction under
Federal laws or regulations (including the basis of Federal funding in whole or in part) shall
have access to any books, records, and documents of the CONSULTANT, Subconsultants,
and the CONSULTANT's Independent CPA, that are pertinent to the CONSULTANT’s work
and services for audits, examinations, workpaper review, excerpts, and transactions, and
copies thereof shall be furnished if requested without limitation.
IX. AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this
AGREEMENT that is not disposed of by agreement of LOCAL AGENCY and CONSULTANT,
shall be reviewed by LOCAL AGENCY'S Chief Financial Officer.
B. Not later than thirty (30) days after issuance of the final audit report, CONSULTANT may
request a review by LOCAL AGENCY'S authorized representative of unresolved audit
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issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse
CONSULTANT from full and timely performance, in accordance with the terms of this
AGREEMENT.
D. CONSULTANT and Subconsultant contracts, including cost proposals and ICR, are subject
to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost
audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or
review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable,
will be reviewed to verify compliance with 48 CFR, Part 31 and other related laws and
regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT's
responsibility to ensure federal, state, or local government officials are allowed full
access to the CPA's work papers including making copies as necessary. The
AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by
LOCAL AGENCY contract manager to conform to the audit or review recommendations.
CONSULTANT agrees that individual terms of costs identified in the audit report shall be
incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its
sole discretion. Refusal by CONSULTANT to incorporate audit or review
recommendations, or to ensure that the federal, state or local governments have access
to CPA work papers, will be considered a breach of AGREEMENT terms and cause for
termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT'S Cost Proposal may be subject to a CPA ICR Audit Work Paper Review
and/or audit by California’s Department of Transportation (Caltrans) Audit and
Investigation (A&I). Caltrans A&I, at its sole discretion, may review and/or audit and
approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the
CONSULTANT and approved by the LOCAL AGENCY to conform to the Work Paper
Review recommendations included in the management letter or audit
recommendations included in the audit report. Refusal by the CONSULTANT to
incorporate the Work Paper Review recommendations included in the management
letter or audit recommendations included in the audit report will be considered a
breach of the AGREEMENT terms and cause for termination of the AGREEMENT and
disallowance of prior reimbursed costs.
1. During a Caltrans A&I review of the ICR audit work papers created by the
CONSULTANT's independent CPA, Caltrans A&I will work with the CPA and/or
CONSULTANT toward a resolution of issues that arise during the review. Each party
agrees to use its best efforts to resolve any audit disputes in a timely manner. If
Caltrans A&I identifies significant issues during the review and is unable to issue a
cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an
accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR,
part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting
Standards), if applicable; in accordance with procedures and guidelines of the
American Association of State Highways and Transportation Officials (AASHTO)
Audit Guide; and other applicable procedures and guidelines} is received and
approved by A&I.
Accepted rates will be as follows:
a. If the proposed rate is less than 150% - the accepted rate reimbursed will be
90% of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two
hundred percent (200%) - the accepted rate will be 85% of the proposed rate.
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c. If the proposed rate is greater than two hundred percent (200%) - the accepted
rate will be 75% of the proposed rate.
2. If Caltrans A&I is unable to issue a cognizant letter per paragraph E.1. above,
Caltrans A&I may require CONSULTANT to submit a revised independent CPA-
audited ICR and audit report within three (3) months of the effective date of the
management letter. Caltrans A&I will then have up to six (6) months to review the
CONSULTANT's and/or the independent CPA's revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if
Caltrans A&I is still unable to issue a cognizant approval letter after the revised
independent CPA-audited ICR is submitted, overhead cost reimbursement will be
limited to the accepted ICR that was established upon initial rejection of the ICR and
set forth in paragraph E.1. above for all rendered services. In this event, this
provisional ICR will become the actual and final ICR for reimbursement purposes
under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the
following items have occurred: (1) Caltrans A&I accepts or adjusts the original or
revised independent CPA- audited ICR; (2) all work under this AGREEMENT has been
completed to the satisfaction of LOCAL AGENCY; and, (3) Caltrans A&I has issued its
final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL
AGENCY no later than sixty (60) calendar days after occurrence of the last of these
items. The accepted ICR will apply to this AGREEMENT and all other AGREEMENTs
executed between LOCAL AGENCY and the CONSULTANT, either as a prime or
Subconsultant, with the same fiscal period ICR. The ICR period shall extend beyond
the one-year period and shall be fixed for the life of the contract.
X. SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual
relation between LOCAL AGENCY and any Subconsultant(s), and no subcontract shall
relieve CONSULTANT of its responsibilities and obligations hereunder. CONSULTANT
agrees to be as fully responsible to LOCAL AGENCY for the acts and omissions of its
Subconsultant(s) and of persons either directly or indirectly employed by any of them as
it is for the acts and omissions of persons directly employed by CONSULTANT.
CONSULTANT's obligation to pay its Subconsultant(s) is an independent obligation from
LOCAL AGENCY'S obligation to make payments to the CONSULTANT.
B. CONSULTANT shall perform the work contemplated with resources available within its
own organization and no portion of the work pertinent to this AGREEMENT shall be
subcontracted without written authorization by LOCAL AGENCY, except that, which is
expressly identified in the approved Cost Proposal.
C. All subcontracts entered into as a result of this AGREEMENT shall contain all the
provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants
unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within fifteen (15) calendar days from receipt
of each payment made to CONSULTANT by LOCAL AGENCY for the work performed by
such Subconsultants.
E. Any substitution of Subconsultant(s) must be approved in writing by LOCAL AGENCY in
advance of assigning work to a substituted Subconsultant(s).
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XI. EQUIPMENT PURCHASE
A. Prior authorization in writing, by LOCAL AGENCY shall be required before
CONSULTANT enters into any unbudgeted purchase order, or subcontract
exceeding five thousand dollars ($5,000) for supplies, equipment, or
CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity
or desirability of incurring such costs.
B. For purchase of any item, service or consulting work not covered in
CONSULTANT's approved Cost Proposal and exceeding one hundred ninety five
thousand dollars ($195,000), with prior authorization by LOCAL AGENCY; three
competitive quotations must be submitted with the request, or the absence of
bidding must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this
AGREEMENT is subject to the following:
1. CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and
an acquisition cost of one hundred ninety five thousand dollars ($195,000) or more.
If the purchased equipment needs replacement and is sold or traded in, LOCAL
AGENCY shall receive a proper refund or credit at the conclusion of the
AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the
equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or
sell such equipment at the best price obtainable at a public or private sale, in
accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY
in an amount equal to the sales price. If CONSULTANT elects to keep the equipment,
fair market value shall be determined at CONSULTANT's expense, on the basis of a
competent independent appraisal of such equipment. Appraisals shall be obtained
from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is
determined to sell the equipment, the terms and conditions of such sale must be
approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR Part 200 requires a credit to Federal funds when participating
equipment with a fair market value greater than one hundred ninety five thousand
dollars ($195,000) is credited to the project.
XII. STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public
work elements unless registered with the Department of Industrial Relations (DIR)
pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout
the entire term of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California
Labor Code requiring the payment of prevailing wages. The General Prevailing Wage
Rate Determinations applicable to work under this AGREEMENT are available and on
file with the Department of Transportation's Regional/District Labor Compliance
Officer
(http://www.dot.ca.gov/hq/construc/LaborCompliance/documents/DistrictRegion_Map_Construction_7-
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8-15.pdf)
These wage rates are made a specific part of this AGREEMENT by reference pursuant to
Labor Code §1773.2 and will be applicable to work performed at a construction
project site. Prevailing wages will be applicable to all inspection work performed at
LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that
are set up by the construction contractor or one of its subcontractors solely and
specifically to serve LOCAL AGENCY projects. Prevailing wage requirements do not
apply to inspection work performed at the facilities of vendors and commercial
materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be
obtained from the Department of Industrial Relations Internet site at http://
www.dir.ca.gov.
D. Payroll Records
1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records
and supporting documents as mandated by Labor Code §1776 and as defined in 8
CCR §16000 showing the name, address, social security number, work classification,
straight time and overtime hours worked each day and week, and the actual per
diem wages paid to each journeyman, apprentice, worker, or other employee
employed by the CONSULTANT or Subconsultant in connection with the public
work. Each payroll record shall contain or be verified by a written declaration that it
is made under penalty of perjury, stating both of the following:
a. The information contained in the payroll record is true and correct.
b. The employer has complied with the requirements of Labor Code §1771,
§1811, and §1815 for any work performed by his or her employees on the
public works project.
2. The payroll records enumerated under paragraph (1) above shall be certified as
correct by the CONSULTANT under penalty of perjury. The payroll records and all
supporting documents shall be made available for inspection and copying by LOCAL
AGENCY representative's at all reasonable hours at the principal office of the
CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit
inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for
inspection or furnished to the employee or the employee's authorized
representative on request.
b. A certified copy of all payroll records enumerated in paragraph (1) above, shall
be made available for inspection or furnished upon request to a representative
of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division
of Apprenticeship Standards of the Department of Industrial Relations. Certified
payrolls submitted to LOCAL AGENCY, the Division of Labor Standards
Enforcement and the Division of Apprenticeship Standards shall not be altered
or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the
CONSULTANT. The CONSULTANT is required to forward any requests for
certified payrolls to the LOCAL AGENCY by both email and regular mail on the
business day following receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in
paragraph (1) above, to the entity that requested the records within ten (10}
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calendar days after receipt of a written request.
4. Any copy of records made available for inspection as copies and furnished upon
request to the public or any public agency by LOCAL AGENCY shall be marked or
obliterated in such a manner as to prevent disclosure of each individual's name,
address, and social security number. The name and address of the CONSULTANT or
Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records
enumerated under paragraph (1) above, including the street address, city and
county, and shall, within five (5) working days, provide a notice of a change of
location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in which to
comply subsequent to receipt of written notice requesting the records enumerated
in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to
comply within the ten (10} day period, he or she shall, as a penalty to LOCAL
AGENCY, forfeit one hundred dollars ($100} for each calendar day, or portion
thereof, for each worker, until strict compliance is effectuated. Such penalties shall
be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject
to a penalty assessment pursuant to this section due to the failure of a
Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying
compliance with certified payroll requirements. Invoice payment will not be made
until the invoice is approved by the LOCAL AGENCY.
F. Penalty
1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774
and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant
shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars
($200) for each calendar day, or portion thereof, for each worker paid less than the
prevailing rates as determined by the Director of DIR for the work or craft in which
the worker is employed for any public work done under the AGREEMENT by the
CONSULTANT or by its Subconsultant in violation of the requirements of the Labor
Code and in particular, Labor Code §§1770 to 1780, inclusive.
2. The amount of this forfeiture shall be determined by the Labor Commissioner and
shall be based on consideration of mistake, inadvertence, or neglect of the
CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages,
or the previous record of the CONSULTANT or Subconsultant in meeting their
respective prevailing wage obligations, or the willful failure by the CONSULTANT or
Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence,
or neglect in failing to pay the correct rates of prevailing wages is not excusable if
the CONSULTANT or Subconsultant had knowledge of the obligations under the
Labor Code. The CONSULTANT is responsible for paying the appropriate rate,
including any escalations that take place during the term of the AGREEMENT.
3. In addition to the penalty and pursuant to Labor Code §1775, the difference
between the prevailing wage rates and the amount paid to each worker for each
calendar day or portion thereof for which each worker was paid less than the
prevailing wage rate shall be paid to each worker by the CONSULTANT or
Subconsultant.
4. If a worker employed by a Subconsultant on a public works project is not paid the
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general prevailing per diem wages by the Subconsultant, the prime CONSULTANT of
the project is not liable for the penalties described above unless the prime
CONSULTANT had knowledge of that failure of the Subconsultant to pay the
specified prevailing rate of wages to those workers or unless the prime
CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant
for the performance of work on public works projects shall include a copy of the
requirements in Labor Code§§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
b. The CONSULTANT shall monitor the payment of the specified general prevailing
rate of per diem wages by the Subconsultant to the employees by periodic
review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant's failure to pay the specified
prevailing rate of wages to the Subconsultant's workers, the CONSULTANT shall
diligently take corrective action to halt or rectify the failure, including but not
limited to, retaining sufficient funds due the Subconsultant for work performed
on the public works project.
d. Prior to making final payment to the Subconsultant for work performed on the
public works project, the CONSULTANT shall obtain an affidavit signed under
penalty of perjury from the Subconsultant that the Subconsultant had paid the
specified general prevailing rate of per diem wages to the Subconsultant's
employees on the public works project and any amounts due pursuant to Labor
Code §1813.
5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a
public works project within fifteen {15) calendar days of receipt of a complaint that
a Subconsultant has failed to pay workers the general prevailing rate of per diem
wages.
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the
general prevailing rate of per diem wages and if LOCAL AGENCY did not retain
sufficient money under the AGREEMENT to pay those employees the balance of
wages owed under the general prevailing rate of per diem wages, the CONSULTANT
shall withhold an amount of moneys due the Subconsultant sufficient to pay those
employees the general prevailing rate of per diem wages if requested by LOCAL
AGENCY.
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a
penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each worker employed in
the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for
each calendar day during which such worker is required or permitted to work more than
eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in
violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof,
inclusive, except that work performed by employees in excess of eight (8) hours per
day, and forty (40) hours during any one week, shall be permitted upon compensation
for all hours worked in excess of eight (8) hours per day and forty (40) hours in any
week, at not less than one and one-half (1.5) times the basic rate of pay, as provided in
§1815.
H. Employment of Apprentices
1. Where either the prime AGREEMENT or the sub agreement exceeds thirty thousand
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dollars ($30,000), the CONSULTANT and any Subconsultants under him or her shall
comply with all applicable requirements of Labor Code§§ 1777.5, 1777.6 and 1777.7
in the employment of apprentices.
2. CONSULTANTs and Subconsultants are required to comply with all Labor Code
requirements regarding the employment of apprentices, including mandatory ratios
of journey level to apprentice workers. Prior to commencement of work,
CONSULTANT and Subconsultants are advised to contact the DIR Division of
Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional
information regarding the employment of apprentices and for the specific journey-
to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for
all Subconsultants' compliance with these requirements. Penalties are specified in
Labor Code §1777.7.
XIII. CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial,
business, or other relationship with LOCAL AGENCY that may have an impact upon the
outcome of this AGREEMENT, or any ensuing LOCAL AGENCY construction project.
CONSULTANT shall also list current clients who may have a financial interest in the
outcome of this AGREEMENT, or any ensuing LOCAL AGENCY construction project,
which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or
potential conflicts of interest that may exist relative to the services to be provided
pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual,
apparent or potential conflicts of interest that may develop subsequent to the date of
execution of this AGREEMENT. CONSULTANT further agrees to complete any
statements of economic interest if required by either LOCAL AGENCY ordinance or State
law.
C. CONSULTANT hereby certifies that it does not now have, nor shall it acquire any
financial or business interest that would conflict with the performance of services
under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or Subconsultant and any firm
affiliated with the CONSULTANT or Subconsultant that bids on any construction
contract or on any AGREEMENT to provide construction inspection for any construction
project resulting from this AGREEMENT, has established necessary controls to ensure a
conflict of interest does not exist. An affiliated firm is one, which is subject to the
control of the same persons, through joint ownership or otherwise.
XIV. REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION
CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates,
kickbacks or other unlawful consideration, either promised or paid to any LOCAL AGENCY
employee. For breach or violation of this warranty, LOCAL AGENCY shall have the right in its
discretion; to terminate this AGREEMENT without liability; to pay only for the value of the work
actually performed; or to deduct from this AGREEMENT price; or otherwise recover the full
amount of such rebate, kickback or other unlawful consideration.
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XV. PROHIBITION OF EXPENDING LOCAL AGENCY STATE OR FEDERAL FUNDS FOR LOBBYING
A. CONSULTANT certifies to the best of his or her knowledge and belief that:
1. No state, federal or LOCAL AGENCY appropriated funds have been paid, or
will be paid by- or-on behalf of CONSULTANT to any person for influencing
or attempting to influence an officer or employee of any local, State or
Federal agency; a Member of the State Legislature or United States
Congress; an officer or employee of the Legislature or Congress; or any
employee of a Member of the Legislature or Congress, in connection with
the awarding or making of this AGREEMENT, or with the extension,
continuation, renewal, amendment, or modification of this AGREEMENT.
2. If any funds other than Federal appropriated funds have been paid, or will
be paid to any person for influencing or attempting to influence an officer or
employee of any agency; a Member of Congress; an officer or employee of
Congress, or an employee of a Member of Congress; in connection with this
AGREEMENT, the CONSULTANT shall complete and submit Standard Form-
LLL, "Disclosure Form to Report Lobbying", in accordance with its
instructions.
B. This certification is a material representation of fact upon which reliance
was placed when this transaction was made or entered into. Submission of
this certification is a prerequisite for making or entering into this transaction
imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the
required certification shall be subject to a civil penalty of not less than ten
thousand dollars ($10,000) and not more than one hundred thousand dollars
($100,000) for each such failure.
C. CONSULTANT also agrees by signing this document that he or she shall require
that the language of this certification be included in all lower-tier subcontracts,
which exceed one hundred thousand dollars ($100,000) and that all such sub
recipients shall certify and disclose accordingly.
XVI. NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE
A. CONSULTANT's signature affixed herein, and dated, shall constitute a certification
under penalty of perjury under the laws of the State of California that CONSULTANT
has, unless exempt, complied with, the nondiscrimination program requirements of
Government Code§ 12990 and Title 2 CCR§ 8103.
B. During the performance of this AGREEMENT, CONSULTANT and its Subconsultants shall
not discriminate against any person on the basis of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender expression, age, sexual
orientation, or military and veteran status, nor shall they unlawfully discriminate,
harass, or allow harassment against any employee or applicant for employment
because of race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, sexual orientation, or military and veteran
status.
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C. CONSULTANT and Subconsultants shall insure that the evaluation and treatment of
their employees and applicants for employment are free from such discrimination and
harassment. CONSULTANT and Subconsultants shall comply with the provisions of the
Fair Employment and Housing Act (California Gov. Code §12990 et seq.), the applicable
regulations promulgated there under (2 CCR §11000 et seq.), the provisions of California
Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL
AGENCY to implement such article. The applicable regulations of the Fair Employment
and Housing Commission implementing California Gov. Code §12990 (a-f), set forth 2
CCR §§8100-8504, are incorporated into this AGREEMENT by reference and made a part
hereof as if set forth in full.
D. CONSULTANT, with regard to its work performed under this Agreement and to the
extent the California Fair Employment and Housing Commission regulations are
applicable to such work, shall permit access by representatives of the Department of
Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any
time during the normal business hours, but in no case less than twenty-four (24)
hours' notice, to such of its books, records, accounts, and all other sources of
information and its facilities as said Department or LOCAL AGENCY shall require to
ascertain compliance with this clause.
E. CONSULTANT and its Subconsultants shall give written notice of their obligations under
this clause to labor organizations with which they have a collective bargaining or other
Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this
clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act
in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title
VI provides that the recipients of federal assistance will implement and maintain a
policy of nondiscrimination in which no person in the United States shall, on the basis of
race, color, national origin, religion, sex, age, disability, be excluded from participation
in, denied the benefits of or subject to discrimination under any program or activity by
the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non-discrimination in
federally-assisted programs of the U.S. Department of Transportation (49 CFR Part 21-
Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT
shall not participate either directly or indirectly in the discrimination prohibited by 49
CFR §21.5, including employment practices and the selection and retention of
Subconsultants.
XVII. DEBARMENT AND SUSPENSION CERTIFICATION
A. CONSULTANT's signature affixed herein, shall constitute a certification under penalty
of perjury under the laws of the State of California, that CONSULTANT or any person
associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or
determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible
by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
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4. Has not been indicted, convicted, or had a civil judgment rendered against it by a
court of competent jurisdiction in any matter involving fraud or official
misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY. Exceptions
will not necessarily result in denial of recommendation for award, but will be
considered in determining responsibility. Disclosures must indicate to whom
exceptions apply, initiating agency, and dates of agency action.
C. Exceptions to the Federal Government Excluded Parties List System maintained by the
General Services Administration are to be determined by the FHWA.
XVIII. DISADVANTAGED BUSINESS ENTERPRISES (DBE) PARTICIPATION
A. This AGREEMENT is subject to 49 CFR, Part 26 entitled "Participation by
Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs". Consultants who enter into a federally-funded agreement
will assist the LOCAL AGENCY in a good faith effort to achieve California's
statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 15%. Participation by DBE
Consultant or Subconsultants shall be in accordance with information contained
in the Consultant Proposal DBE Commitment (Exhibit 10-01), or in the
Consultant Contract DBE Information (Exhibit 10-02) attached hereto and
incorporated as part of the AGREEMENT. If a DBE Subconsultant is unable to
perform, CONSULTANT must make a good faith effort to replace him/her with
another DBE Subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting
commitments to DBEs to meet the AGREEMENT goal, or by documenting
adequate good faith efforts to meet the AGREEMENT goal. An adequate good
faith effort means that the CONSULTANT must show that it took all necessary
and reasonable steps to achieve a DBE goal that, by their scope, intensity, and
appropriateness to the objective, could reasonably be expected to meet the
DBE goal. If CONSULTANT has not met the DBE goal, complete and submit
Exhibit 15-H: DBE Information - Good Faith Efforts to document efforts to meet
the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith
efforts to meet the DBE goal.
D. DBEs and other small businesses, as defined in 49 CFR, Part 26 are encouraged
to participate in the performance of contracts financed in whole or in part with
federal funds. The LOCAL AGENCY, CONSULTANT or Subconsultants shall not
discriminate on the basis of race, color, national origin, or sex in the
performance of this AGREEMENT. CONSULTANT shall carry out applicable
requirements of 49 CFR, Part 26 in the award and administration of US DOT-
assisted contracts. Failure by CONSULTANT to carry out these requirements is a
material breach of this AGREEMENT, which may result in the termination of this
AGREEMENT or such other remedy as LOCAL AGENCY deems appropriate which
may include:
1. Withholding monthly progress payments;
2. Disqualifying the CONSULTANT from future bidding as non-responsive.
E. A DBE firm may be terminated only with prior written approval from LOCAL
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AGENCY and only for the reasons specified in 49 CFR 26.53(f). Prior to requesting
LOCAL AGENCY consent for the termination, CONSULTANT must meet the
procedural requirements specified in 49 CFR 26.53(f). If a DBE Subconsultant is
unable to perform, CONSULTANT must make a good faith effort to replace
him/her with another DBE Subconsultant, if the goal is not otherwise met.
F. Consultant shall not be entitled to any payment for such work or material
unless it is performed or supplied by the listed DBE or by other forces
(including those of Consultant) pursuant to prior written authorization of the
LOCAL AGENCY.
G. A DBE is only eligible to be counted toward the AGREEMENT goal if it performs a
commercially useful function (CUF) on the AGREEMENT. A DBE performs a
Commercially Useful Function (CUF) when it is responsible for execution of the
work of the AGREEMENT and is carrying out its responsibilities by actually
performing, managing, and supervising the work involved. To perform a CUF, the
DBE must also be responsible with respect to materials and supplies used on
the AGREEMENT, for negotiating price, determining quality and quantity,
ordering the material, and installing (where applicable) and paying for the
material itself. To determine whether a DBE is performing a CUF, evaluate the
amount of work subcontracted, industry practices, whether the amount the
firm is to be paid under the AGREEMENT is commensurate with the work it is
actually performing, and other relevant factors.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in
a transaction, contract, or project through which funds are passed in order to
obtain the appearance of DBE participation. In determining whether a DBE is such
an extra participant, examine similar transactions, particularly those in which
DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent
(30%) of the total cost of its contract with its own work force, or the DBE
subcontracts a greater portion of the work of the contract than would be
expected on the basis of normal industry practice for the type of work
involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all
subcontracts entered into with certified DBEs. The records shall show the name
and business address of each DBE or vendor and the total dollar amount actually
paid each DBE or vendor, regardless of tier. The records shall show the date of
payment and the total dollar figure paid to all firms. DBE prime consultants shall
also show the date of work performed by their own forces along with the
corresponding dollar value of the work.
K. Upon completion of the AGREEMENT, a summary of these records shall be
prepared and submitted on the form entitled, "Final Report-Utilization of
Disadvantaged Business Enterprise (DBE), First-Tier Subconsultants" CEM-
2402F [Exhibit 17-F, of the LAPM], certified correct by CONSULTANT or
CONSULTANT's authorized representative and shall be furnished to the LOCAL
AGENCY with the final invoice. Failure to provide the summary of DBE
payments with the final invoice will result in twenty-five percent (25%) of the
dollar value of the invoice being withheld from payment until the form is
submitted. The amount will be returned to CONSULTANT when a satisfactory
"Final Report-Utilization of Disadvantaged Business Enterprises (DBE), First-
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Tier Subconsultants" is submitted to the LOCAL AGENCY.
L. If a DBE Subconsultant is decertified during the life of the AGREEMENT, the
decertified Subconsultant shall notify CONSULTANT in writing with the date of
decertification. If a Subconsultant becomes a certified DBE during the life of the
AGREEMENT, the Subconsultant shall notify CONSULTANT in writing with the date
of certification. Any changes should be reported to LOCAL AGENCY within 30
days.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of
the provisions of this section.
XIX. INSURANCE
A. Prior to commencement of the work described herein, CONSULTANT shall furnish
LOCAL AGENCY a Certificate of Insurance in compliance with the following:
Minimum Scope of Insurance:
i. CONSULTANT agrees to have and maintain, for the duration of the AGREEMENT,
General Liability insurance policies insuring it to an amount not less than: one
million dollars ($1,000,000) combined single limit per occurrence for bodily
injury, personal injury and property damage.
ii. CONSULTANT agrees to have and maintain for the duration of the AGREEMENT,
an Automobile Liability insurance policy ensuring it to an amount not less than
one million dollars ($1,000,000) combined single limit per accident for bodily
injury and property damage.
iii. CONSULTANT shall provide to the LOCAL AGENCY all certificates of insurance,
with original endorsements effecting coverage. Consultant agrees that all
certificates and endorsements are to be received and approved by the LOCAL
AGENCY before work commences.
iv. CONSULTANT agrees to have and maintain, for the duration of the AGREEMENT,
professional liability insurance in amounts not less than $1,000,000 which is
sufficient to insure CONSULTANT for professional errors or omissions in the
performance of the particular scope of work under this AGREEMENT.
General Liability:
i. The LOCAL AGENCY, its officers, officials, employees and volunteers are to be
covered as insured as respects: liability arising out of activities performed by or
on behalf of the CONSULTANT; products and completed operations of
Consultant, premises owned or used by the CONSULTANT. This requirement
does not apply to the professional liability insurance required for professional
errors and omissions.
ii. The CONSULTANT's insurance coverage shall be primary insurance as respects
the LOCAL AGENCY, its officers, officials, employees and volunteers. Any
insurance or self-insurances maintained by the LOCAL AGENCY, its officers,
officials, employees or volunteers shall be excess of the CONSULTANT's
insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the LOCAL AGENCY, its officers, officials, employees or
volunteers.
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iv. The CONSULTANT's insurance shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
All Coverages. Each insurance policy required in this item shall be endorsed
to state that coverage shall not be suspended, voided, cancelled, reduced in
coverage or in limits except after thirty (30) days' prior written notice by
certified mail, return receipt requested, has been given to the LOCAL
AGENCY. Current certification of such insurance shall be kept on file at all times
during the term of this AGREEMENT with the Town Clerk.
Workers' Compensation. In addition to these policies, CONSULTANT shall have
and maintain Workers' Compensation insurance as required by California law
and shall provide evidence of such policy to the LOCAL AGENCY before beginning
services under this AGREEMENT. Further, CONSULTANT shall ensure that all
subcontractors employed by CONSULTANT provide the required Workers'
Compensation insurance for their respective employees.
Indemnification. CONSULTANT shall save, keep, hold harmless and indemnify
and defend the LOCAL AGENCY its officers, agent, employees and volunteers
from all damages, liabilities, penalties, costs, or expenses in law or equity that
may at any time arise or be set up because of damages to property or personal
injury received by reason of the negligent act or omissions of the CONSULTANT,
or any of the CONSULTANT's officers, employees, or agents or any
Subconsultant.
B. CONSULTANT agrees that the insurance herein provided for, shall be in effect at
all times during the term of this AGREEMENT. In the event said insurance
coverage expires at any time or times during the term of this AGREEMENT,
CONSULTANT agrees to provide at least thirty (30) days prior notice to said
expiration date; and a new Certificate of Insurance evidencing insurance
coverage as provided for herein, for not less than either the remainder of the
term of the AGREEMENT, or for a period of not less than one (1) year. New
Certificates of Insurance are subject to the approval of LOCAL AGENCY. In the
event CONSULTANT fails to keep in effect at all times insurance coverage as
herein provided, LOCAL AGENCY may, in addition to any other remedies it may
have, terminate this AGREEMENT upon occurrence of such event.
XX. CHANGE IN TERMS
A. No modification, waiver, mutual termination, or amendment of this
AGREEMENT is effective unless made in writing and signed by the LOCAL
AGENCY and the CONSULTANT.
B. CONSULTANT shall only commence work covered by an amendment after the
amendment is executed and notification to proceed has been provided by
LOCAL AGENCY.
C. There shall be no change in CONSULTANT's Project Manager or members of the
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project team, as listed in the approved Cost Proposal, which is a part of this
AGREEMENT without prior written approval by LOCAL AGENCY.
XXI. CONTINGENT FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency
has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement
or understanding, for a commission, percentage, brokerage, or contingent fee, excepting
bona fide employees, or bona fide established commercial or selling agencies maintained
by CONSULTANT for the purpose of securing business. For breach or violation of this
warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only
for the value of the work actually performed, or in its discretion to deduct from the
AGREEMENT price or consideration, or otherwise recover the full amount of such
commission, percentage, brokerage, or contingent fee.
XXII. DISPUTES
A. Prior to either party commencing any legal action under this AGREEMENT, the parties
agree to try in good faith, to settle any dispute amicably between them. If a dispute has
not been settled after thirty (30) days of good-faith negotiations and as may be
otherwise provided herein, then either party may commence legal action against the
other.
B. Any dispute, other than audit, concerning a question of fact arising under this
AGREEMENT that is not disposed of by AGREEMENT shall be decided by a committee
consisting of LOCAL AGENCY's Public Works Director or his/her designee, who may
consider written or verbal information submitted by CONSULTANT.
C. Not later than 30 days after completion of all deliverables necessary to complete the
plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY
Governing Board of unresolved claims or disputes, other than audit. The request for
review will be submitted in writing.
D. Neither the pendency of a dispute, nor its consideration by the committee will excuse
CONSULTANT from full and timely performance in accordance with the terms of this
AGREEMENT.
E. In any dispute over any aspect of the AGREEMENT, the prevailing party shall be entitled
to reasonable attorney's fees, including costs of appeal.
XXIII. INSPECTION OF WORK
CONSULTANT and any Subconsultant shall permit LOCAL AGENCY, the state, and the FHWA if
federal participating funds are used in this AGREEMENT; to review and inspect the project activities
and files at all reasonable times during the performance period of this AGREEMENT including
review and inspection on a daily basis.
XXIV. SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding
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necessary safety equipment or procedures. CONSULTANT shall comply with safety
instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY
representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times
while working on the construction project site.
B. Pursuant to the authority contained in Division 1, Section 591 of the California
Vehicle Code, LOCAL AGENCY has determined that such areas are within the limits
of the project and are open to public traffic. CONSULTANT shall comply with all
applicable requirements set forth in Divisions 11, 12, 13, 14, and 15 of the California
Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe
operation of its vehicles and the protection of the traveling public from injury and
damage from such vehicles.
C. Any subcontract entered into as a result of this AGREEMENT, shall contain all of the
provisions of this Article.
D. CONSULTANT must have a Division of Occupational Safety and Health (CAL-OSHA)
permit(s), as outlined in California Labor Code Sections 6500 and 6705, prior to the
initiation of any practices, work, method, operation, or process related to the
construction or excavation of trenches which are five feet or deeper.
XXV. OWNERSHIP OF DATA
A. It is mutually agreed that subject to CONSULTANT’s receipt of payment for its services
under this AGREEMENT all materials prepared by CONSULTANT under this AGREEMENT
shall become the property of LOCAL AGENCY, and CONSULTANT shall have no property
right therein whatsoever. Immediately upon termination, LOCAL AGENCY shall be
entitled to, and CONSULTANT shall deliver to LOCAL AGENCY, reports, investigations,
appraisals, inventories, studies, analyses, drawings and data estimates performed to
that date, whether completed or not, and other such materials as may have been
prepared or accumulated to date by CONSULTANT in performing this AGREEMENT
which is not CONSULTANT's privileged information, as defined by law, or CONSULTANT's
personnel information, along with all other property belonging exclusively to LOCAL
AGENCY which is in CONSULTANT's possession . Publication of the information derived
from work performed or data obtained in connection with services rendered under this
AGREEMENT must be approved in writing by LOCAL AGENCY.
B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services
and each considers the products and results of the services to be rendered by
CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and
agrees that the work (and all rights therein, including, without limitation, copyright)
belongs to and shall be the sole and exclusive property of LOCAL AGENCY without
restriction or limitation upon its use or dissemination by LOCAL AGENCY.
C. Nothing herein shall constitute or be construed to be any representation by
CONSULTANT that the work product is suitable in any way for any other project
except the one detailed in this AGREEMENT. Any reuse by LOCAL AGENCY for another
project or project location shall be at LOCAL AGENCY's sole risk.
D. Applicable patent rights provisions regarding rights to inventions shall be included in
the AGREEMENTs as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under
Government Contracts for federal-aid contracts).
E. LOCAL AGENCY may permit copyrighting reports or other AGREEMENT products. If
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copyrights are permitted; the AGREEMENT shall provide that the FHWA shall have the
royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise
use; and to authorize others to use, the work for government purposes.
XXVI. CLAIMS FILED BY LOCAL AGENCY's CONSTRUCTION CONTRACTOR
A. If claims are filed by LOCAL AGENCY's construction contractor relating to work
performed by CONSULTANT's personnel, and additional information or assistance from
CONSULTANT's personnel is required in order to evaluate or defend against such claims;
CONSULTANT agrees to reasonably cooperate with LOCAL AGENCY.
B. CONSULTANT's consultation or testimony will be reimbursed at CONSULTANT's then
current hourly rates of compensation plus any costs and expenses.
XXVII. CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to
LOCAL AGENCY's operations, which are designated confidential by LOCAL AGENCY and
made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected
by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL
AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further
disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the
AGREEMENT or LOCAL AGENCY's actions on the same, except to LOCAL AGENCY's staff,
CONSULTANT's own personnel involved in the performance of this AGREEMENT, at public
hearings or in response to questions from a Legislative committee.
D. CONSULTANT shall not issue any news release or public relations item of any nature,
whatsoever, regarding work performed or to be performed under this AGREEMENT
without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL
AGENCY'S written permission.
E. All information related to the construction estimate is confidential, and shall not be
disclosed by CONSULTANT to any entity other than LOCAL AGENCY, Caltrans, and/or
FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to
performance of this AGREEMENT are confidential and CONSULTANT agrees that they
shall not be made available to any individual or organization without the prior written
approval of LOCAL AGENCY or except as may be required by any law, regulation or
government or court order. If CONSULTANT or any of its officers, employees, or
subcontractors does voluntarily provide information in violation of this AGREEMENT,
LOCAL AGENCY has the right to reimbursement and indemnity from CONSULTANT for
any damages caused by CONSULTANT releasing the information, including, but not
limited to, LOCAL AGENCY's attorney's fees and disbursements, including without
limitation experts' fees and disbursements.
XXVIII. NATIONAL LABOR RELATIONS BOARD CERTIFICATION
In accordance with Public Contract Code Section 10296, CONSULTANT hereby states under penalty of
perjury that no more than one final unappealable finding of contempt of court by a federal court
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has been issued against CONSULTANT within the immediately preceding two-year period, because
of CONSULTANT's failure to comply with an order of a federal court that orders CONSULTANT to
comply with an order of the National Labor Relations Board.
XXIX. RETENTION OF FUNDS
A. Any subcontract entered into as a result of this AGREEMENT shall contain all of the
provisions of this section.
B. No retainage will be held by the LOCAL AGENCY from progress payments due the
CONSULTANT. Any retainage held by the CONSULTANT or subconsultants from progress
payments due subconsultants shall be promptly paid in full to subconsultants within
thirty (30) calendar days after the subconsultant's work is satisfactorily completed.
Federal law (49 CFR §26.29) requires that any delay or postponement of payment over
thirty (30) calendar days may take place only for good cause and with the LOCAL
AGENCY's prior written approval. Any violation of this provision shall subject the
violating CONSULTANT or subconsultant to the penalties, sanctions and other remedies
specified in Business and Professions Code §7108.5. These requirements shall not be
construed to limit or impair any contractual, administrative, or judicial remedies,
otherwise available to the CONSULTANT or subconsultant in the event of a dispute
involving late payment or nonpayment by the CONSULTANT, deficient subconsultant
performance, or noncompliance by a subconsultant. This provision applies to both DBE
and non-DBE CONSULTANT and subconsultants.
XXX. NOTIFICATION
Any notice required to be given shall be deemed to be duly and properly given if mailed postage
prepaid, and addressed to:
Town of Los Gatos
Attn: WooJae Kim
41 Miles Avenue
Los Gatos, CA 95030
CONSULTANT:
Econolite Systems, Inc.
Legal Department
1250 N. Tustin Ave.
Anaheim, CA 92886
or personally delivered to Consultant to such address or such other address as Consultant designates in
writing to Town.
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XXXI. SIGNATURES
WHEREOF, THE LOCAL AGENCY AND CONSULTANT HAVE EXECUTED THIS AGREEMENT.
TOWN OF LOS GATOS by:
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Matt Morley, Director of Parks and Public Works
Approved as to Form:
__________________________________
Robert Schultz, Town Attorney
Attest:
_____________________________________
Shelley Neis, CMC, Town Clerk