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Staff Report with attachments PREPARED BY: Mike Vroman Traffic Engineer Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Parks and Interim Public Works Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov TOWN OF LOS GATOS COUNCIL AGENDA REPORT MEETING DATE: 5/3/2022 ITEM NO: 14 DATE: April 27, 2022 TO: Mayor and Town Council FROM: Laurel Prevetti, Town Manager SUBJECT: Authorize the Town Manager to Execute On-Call Traffic Engineering Consultant Services Agreements for Pass-Through Accounts with Advanced Mobility Group, Fehr and Peers, Hexagon Transportation Consultants, Inc., Kimley-Horn Associates, Inc., TJKM Transportation Consultants, and W-Trans RECOMMENDATION: Authorize the Town Manager to execute on-call Traffic Engineering consultant services agreements for Pass-Through Accounts with Advanced Mobility Group (Attachment 1), Fehr and Peers (Attachment 2), Hexagon Transportation Consultants, Inc. (Attachment 3), Kimley- Horn Associates, Inc. (Attachment 4), TJKM Transportation Consultants (Attachment 5), and W- Trans (Attachment 6). BACKGROUND: The Pass-Through Accounts Program provides an accounting structure to receive applicant fees to pay for the required technical analysis (e.g., traffic study engineering and/or geotechnical reviews) of an applicant’s private development proposal by the Town’s consultants. This structure separates ongoing Parks and Public Works Department operations and activities from development application reviews funded through applicants. Fees for these external development services are paid for in advance by the development applicants. DISCUSSION: The Town’s on-call Traffic Engineering consultants provide services and expertise to support staff in the review of development projects in a timely manner. These services include transportation impact analysis and reports per the Town’s policies and guidelines that may PAGE 2 OF 3 SUBJECT: Authorize the Town Manager to Execute On-call Traffic Engineering Consultant Services Agreements for Pass-Through Accounts DATE: April 27, 2022 DISCUSSION (continued): include Vehicles Miles Traveled (VMT), trip generation studies, site circulation and access review, intersection and roadway Level of Service (LOS) analysis, traffic safety analysis, parking studies and analysis, as well as Transportation Demand Management analysis and recommendations. On May 5, 2021, the Town issued a Request for Qualifications (RFQ) for the On-Call Traffic Engineering Consultant Services. Proposals were due May 26, 2021. Staff received proposals from eight firms. Upon review of qualifications and reference checks for each, six firms were selected for the On- Call Traffic Engineering Consultant List for Pass-Through Accounts. Each of these six firms and/or their team have been providing traffic engineering services in the Bay Area for many years and most have served as a consultant to the Town for the past ten years. Staff selected six firms to provide flexible and timely on-call traffic engineering services since these consultants also provide services for private developments in the Town and may have limited availability. CONCLUSION: Staff recommends that the Town Council authorize the Town Manager to enter into On-Call Traffic Engineering consultant services agreements (Attachments 1, 2, 3, 4, 5, and 6) with Advanced Mobility Group, Fehr and Peers, Hexagon Transportation Consultants, Inc., Kimley- Horn Associates, Inc., TJKM Transportation Consultants, and W-Trans to continue the Pass- Through Accounts Program for traffic reviews and analysis for private development projects. COORDINATION: This report has been coordinated with the Town Manager’s Office, Town Attorney’s Office, and the Finance Department. FISCAL IMPACT: There is no fiscal impact as costs for the On-Call Traffic Engineering consulting services for Pass- Through Accounts are paid by applicants of development proposals. ENVIRONMENTAL ASSESSMENT: Environmental Review is not required as this is not a project defined by the California Environmental Quality Act. PAGE 3 OF 3 SUBJECT: Authorize the Town Manager to Execute On-call Traffic Engineering Consultant Services Agreements for Pass-Through Accounts DATE: April 27, 2022 Attachments: 1. Draft Advanced Mobility Group Agreement 2. Draft Fehr and Peers Agreement 3. Draft Hexagon Transportation Consultants, Inc. Agreement 4. Draft Kimley-Horn Associates, Inc. Agreement 5. Draft TJKM Transportation Consultants Agreement 6. Draft W-Trans Agreement This Page Intentionally Left Blank Agreement for Consultant Services (Pass-Through Account) Advanced Mobility Group (AMG) Page 1 of 6 ATTACHMENT 1 AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is dated for identification this 3rd day of May 2022 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Advanced Mobility Group (AMG), (“Consultant”), whose address is 3003 Oka Road, Suite 100, Walnut Creek, CA 94597. This Agreement is made with reference to the following facts. I. RECITALS 1.1 Town has a need for On-Call Traffic Engineering consulting services (Pass-Through Account) for development projects in the Town of Los Gatos. 1.2 Town desires to engage a licensed professional traffic engineering firm to review, analyze, and comment on development project plans; prepare traffic impact analyses and reports per Town policies and guidelines; conduct peer review of developer traffic reports; and attend public meetings as needed. 1.3 Consultant represents and affirms that the firm is qualified and willing to perform the desired work pursuant to this Agreement. II. AGREEMENTS 2.1 Scope of Services. Consultant shall provide traffic engineering consulting services in compliance with the Town’s Transportation Impact Policy and Guideline including, but not limited, to Vehicles Miles Traveled (VMT) analysis, trip generation studies, site circulation and access review, intersection and roadway Level of Service (LOS) analysis, and other services as needed. 2.2 Time of Performance. Consultant shall perform the services described in this agreement as follows: The services of Consultant are for a five year period that will commence upon the execution of the contract. Should Town not renew a contract, the award and authorization of the contract shall automatically expire. Town shall give Consultant at least 30 days’ notice, prior to the cancellation or expiration of the contract. 2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. Agreement for Consultant Services (Pass-Through Account) Advanced Mobility Group (AMG) Page 2 of 6 2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 2.6 Compensation. Compensation for Consultant's professional services shall not exceed the established hourly rates, as set forth in the Fee Schedule (Exhibit A), which is attached hereto and incorporated herein by reference. Payment shall be based upon Town approval of each task. 2.7 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. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031-0655 2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 2.9 Assignability and Subcontracting. 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 Town. 2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any Agreement for Consultant Services (Pass-Through Account) Advanced Mobility Group (AMG) Page 3 of 6 rights to retirement benefits or other benefits which accrue to Town employee(s). 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 testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters 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. 2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm 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 contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. Agreement for Consultant Services (Pass-Through Account) Advanced Mobility Group (AMG) Page 4 of 6 iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Consultant agrees to have and maintain, for the duration of the contract, 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 Town, 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 Town, its officers, officials, employees and volunteers. Any insurance or self-insurances maintained by the Town, 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 Town, its officers, officials, employees or volunteers. 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. 3.2 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 Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ Compensation. It is understood that Consultant currently has no employees. If employees are hired in the future, Consultant shall obtain and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town. Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. 3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, Agreement for Consultant Services (Pass-Through Account) Advanced Mobility Group (AMG) Page 5 of 6 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, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. IV. GENERAL TERMS 4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant: WooJae Kim Christopher Thnay Town Engineer Advanced Mobility Group (AMG) Town of Los Gatos 3003 Oka Road, Suite 100 41 Miles Avenue Walnut Creek, CA 94597 Los Gatos, CA 95030 Phone: (408) 399-5773 Phone: (925) 322-9921 E-mail: wkim@losgatosca.gov E-mail: Cthnay@amobility.com Agreement for Consultant Services (Pass-Through Account) Advanced Mobility Group (AMG) Page 6 of 6 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect to the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.8 Entire Agreement. This Agreement, including Exhibit A, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. In WITNESS WHEREOF, the Town and Consultant have executed this Agreement. Town of Los Gatos Consultant: ____________________________ ___________________________ Laurel R. Prevetti, Town Manager Christopher Thnay Town of Los Gatos Advanced Mobility Group (AMG) Department Approval: ___________________________ Timm Borden Interim Parks and Public Works Director Approved as to Form: ___________________________ Robert W. Schultz Town Attorney AMG 2022 Rates Time & Material Fee Structure Mileage $0.6/Mile Associate Engineer 160 Minimum 4 hours per meeting CAV Technology Manager 190 (Travel included) CAV/Smart Cities Specialist 140 Communications Marketing Manager 150 Engineering Technician 110 President 310.00 Principal 230.00 - 280.00 Project Administrator 120 Project Controls Manager 200 Project Controls Specialist 150 Project Coordinator 110 Project Manager 155.00 - 210.00 Senior Consultant 250.00 - 285.00 Senior Engineer 150.00 - 160.00 Senior Project Analyst 150.00 - 165.00 Transit Planner 150.00 - 165.00 Vice President 230.00 - 280.00 ETG Principal 175 Senior Engineer 110 Staff Hourly Rates Exhibit A This Page Intentionally Left Blank Agreement for Consultant Services (Pass-Through Account) Fehr & Peers Page 1 of 6 AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is dated for identification this 3rd day of May 2022 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Fehr & Peers, (“Consultant”), whose address is 160 West Santa Clara Street, Suite 675, San Jose, CA 95113. This Agreement is made with reference to the following facts. I.RECITALS 1.1 Town has a need for On-Call Traffic Engineering consulting services (Pass-Through Account) for development projects in the Town of Los Gatos. 1.2 Town desires to engage a licensed professional traffic engineering firm to review, analyze, and comment on development project plans; prepare traffic impact analyses and reports per Town policies and guidelines; conduct peer review of developer traffic reports; and attend public meetings as needed. 1.3 Consultant represents and affirms that the firm is qualified and willing to perform the desired work pursuant to this Agreement. II.AGREEMENTS 2.1 Scope of Services. Consultant shall provide traffic engineering consulting services in compliance with the Town’s Transportation Impact Policy and Guideline including, but not limited, to Vehicles Miles Traveled (VMT) analysis, trip generation studies, site circulation and access review, intersection and roadway Level of Service (LOS) analysis, and other services as needed. 2.2 Time of Performance. Consultant shall perform the services described in this agreement as follows: The services of Consultant are for a five year period that will commence upon the execution of the contract. Should Town not renew a contract, the award and authorization of the contract shall automatically expire. Town shall give Consultant at least 30 days’ notice, prior to the cancellation or expiration of the contract. 2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. Attachment 2 Agreement for Consultant Services (Pass-Through Account) Fehr & Peers Page 2 of 6 2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 2.6 Compensation. Compensation for Consultant's professional services shall not exceed the established hourly rates, as set forth in the Fee Schedule (Exhibit A), which is attached hereto and incorporated herein by reference. Payment shall be based upon Town approval of each task. 2.7 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. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031-0655 2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 2.9 Assignability and Subcontracting. 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 Town. 2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an Agreement for Consultant Services (Pass-Through Account) Fehr & Peers Page 3 of 6 agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). 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 testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters 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. 2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm 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 contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. Agreement for Consultant Services (Pass-Through Account) Fehr & Peers Page 4 of 6 iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Consultant agrees to have and maintain, for the duration of the contract, 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 Town, 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 Town, its officers, officials, employees and volunteers. Any insurance or self- insurances maintained by the Town, 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 Town, its officers, officials, employees or volunteers. 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. 3.2 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 Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ Compensation. It is understood that Consultant currently has no employees. If employees are hired in the future, Consultant shall obtain and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town. Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. Agreement for Consultant Services (Pass-Through Account) Fehr & Peers Page 5 of 6 3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend the Town 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 to the extent of damages to property or personal injury caused by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. IV. GENERAL TERMS 4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant: WooJae Kim Steve Davis Town Engineer Fehr & Peers Town of Los Gatos 160 West Santa Clara Street, Suite 675 41 Miles Avenue San Jose, CA 95113 Los Gatos, CA 95030 Phone: (408) 399-5773 Phone: (408) 899-5036 E-mail: wkim@losgatosca.gov E-mail: s.davis@fehrandpeers.com Agreement for Consultant Services (Pass-Through Account) Fehr & Peers Page 6 of 6 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect to the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.8 Entire Agreement. This Agreement, including Exhibit A, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. In WITNESS WHEREOF, the Town and Consultant have executed this Agreement. Town of Los Gatos Consultant: ____________________________ ___________________________ Laurel R. Prevetti, Town Manager Steve Davis Town of Los Gatos Fehr & Peers Department Approval: ___________________________ Timm Borden Interim Parks and Public Works Director Approved as to Form: ___________________________ Robert W. Schultz Town Attorney 2022-2023 (May 2022 through June 2023) Hourly Billing Rates Classification Hourly Rate Principal $220.00 - $350.00 Senior Associate $195.00 - $290.00 Associate $160.00 - $260.00 Senior Engineer/Planner $145.00 - $220.00 Engineer/Planner $115.00 - $175.00 Senior Engineering Technician $135.00 - $200.00 Senior Project Accountant $165.00 - $170.00 Senior Project Coordinator $120.00 - $175.00 Project Coordinator $105.00 - $140.00 Technician $120.00 - $155.00 Intern $90.00 - $110.00 Other Direct Costs / Reimbursable expenses are invoiced at cost plus 10% for handling. Personal auto mileage is reimbursed at the then current IRS approved rate (58.5 cents per mile as of Jan 2022). Voice & Data Communications (Telephone, fax, computer, e-mail, etc.) are invoiced at cost as a percentage of project labor. Exhibit A This Page Intentionally Left Blank Agreement for Consultant Services (Pass-Through Account) Hexagon Transportation Consultants, Inc. Page 1 of 6 AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is dated for identification this 3rd day of May 2022 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Hexagon Transportation Consultants, Inc., (“Consultant”), whose address is 100 Century Court, Suite 501, San Jose, CA 95112. This Agreement is made with reference to the following facts. I.RECITALS 1.1 Town has a need for On-Call Traffic Engineering consulting services (Pass-Through Account) for development projects in the Town of Los Gatos. 1.2 Town desires to engage a licensed professional traffic engineering firm to review, analyze, and comment on development project plans; prepare traffic impact analyses and reports per Town policies and guidelines; conduct peer review of developer traffic reports; and attend public meetings as needed. 1.3 Consultant represents and affirms that the firm is qualified and willing to perform the desired work pursuant to this Agreement. II.AGREEMENTS 2.1 Scope of Services. Consultant shall provide traffic engineering consulting services in compliance with the Town’s Transportation Impact Policy and Guideline including, but not limited, to Vehicles Miles Traveled (VMT) analysis, trip generation studies, site circulation and access review, intersection and roadway Level of Service (LOS) analysis, and other services as needed. 2.2 Time of Performance. Consultant shall perform the services described in this agreement as follows: The services of Consultant are for a five year period that will commence upon the execution of the contract. Should Town not renew a contract, the award and authorization of the contract shall automatically expire. Town shall give Consultant at least 30 days’ notice, prior to the cancellation or expiration of the contract. 2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. Attachment 3 Agreement for Consultant Services (Pass-Through Account) Hexagon Transportation Consultants, Inc. Page 2 of 6 2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 2.6 Compensation. Compensation for Consultant's professional services shall not exceed the established hourly rates, as set forth in the Fee Schedule (Exhibit A), which is attached hereto and incorporated herein by reference. Payment shall be based upon Town approval of each task. 2.7 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. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031-0655 2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 2.9 Assignability and Subcontracting. 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 Town. 2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an Agreement for Consultant Services (Pass-Through Account) Hexagon Transportation Consultants, Inc. Page 3 of 6 agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). 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 testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters 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. 2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm 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 contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. Agreement for Consultant Services (Pass-Through Account) Hexagon Transportation Consultants, Inc. Page 4 of 6 iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Consultant agrees to have and maintain, for the duration of the contract, 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 Town, 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 Town, its officers, officials, employees and volunteers. Any insurance or self- insurances maintained by the Town, 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 Town, its officers, officials, employees or volunteers. 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. 3.2 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 Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ Compensation. It is understood that Consultant currently has no employees. If employees are hired in the future, Consultant shall obtain and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town. Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. Agreement for Consultant Services (Pass-Through Account) Hexagon Transportation Consultants, Inc. Page 5 of 6 3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend the Town 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, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. IV. GENERAL TERMS 4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant: WooJae Kim Gary Black Town Engineer Hexagon Transportation Consultants, Town of Los Gatos Inc. 41 Miles Avenue 100 Century Court, Suite 501 Los Gatos, CA 95030 San Jose, CA 95112 Phone: (408) 399-5773 Phone: (408) 971-6100 E-mail: wkim@losgatosca.gov E-mail: gblack@hextrans.com Agreement for Consultant Services (Pass-Through Account) Hexagon Transportation Consultants, Inc. Page 6 of 6 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect to the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.8 Entire Agreement. This Agreement, including Exhibit A, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. In WITNESS WHEREOF, the Town and Consultant have executed this Agreement. Town of Los Gatos Consultant: ____________________________ ___________________________ Laurel R. Prevetti, Town Manager Gary Black Town of Los Gatos Hexagon Transportation Consultants, Inc. Department Approval: ___________________________ Timm Borden Interim Parks and Public Works Director Approved as to Form: ___________________________ Robert W. Schultz Town Attorney RFQ to the Town of Los Gatos for On Call Traffic Engineering Services P a g e | 19 Fee Schedule A list of hourly charge rates is shown below. Hexagon Billing Rates Professional Classification Rate per Hour President $290 Principal $250 Senior Associate II $230 Senior Associate I $215 Associate II $195 Associate I $175 Planner/Engineer II $155 Planner/Engineer I $125 Admin/Graphics $110 Senior CAD Tech $95 Technician $75 Direct expenses are billed at actual costs, with the exception of mileage, which is reimbursed at the current rate per mile set by the IRS. Billing rates shown are effective April 1, 2022 and subject to change June 30, 2023. Exhibit A This Page Intentionally Left Blank Agreement for Consultant Services (Pass-Through Account) Kimley-Horn Associates Page 1 of 6 AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is dated for identification this 3rd day of May 2022 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Kimley-Horn Associates, Inc., (“Consultant”), whose address is 10 Almaden Boulevard, Suite 1250, San Jose, CA 95113. This Agreement is made with reference to the following facts. I.RECITALS 1.1 Town has a need for On-Call Traffic Engineering consulting services (Pass-Through Account) for development projects in the Town of Los Gatos. 1.2 Town desires to engage a licensed professional traffic engineering firm to review, analyze, and comment on development project plans; prepare traffic impact analyses and reports per Town policies and guidelines; conduct peer review of developer traffic reports; and attend public meetings as needed. 1.3 Consultant represents and affirms that the firm is qualified and willing to perform the desired work pursuant to this Agreement. II.AGREEMENTS 2.1 Scope of Services. Consultant shall provide traffic engineering consulting services in compliance with the Town’s Transportation Impact Policy and Guideline including, but not limited, to Vehicles Miles Traveled (VMT) analysis, trip generation studies, site circulation and access review, intersection and roadway Level of Service (LOS) analysis, and other services as needed. 2.2 Time of Performance. Consultant shall perform the services described in this agreement as follows: The services of Consultant are for a five year period that will commence upon the execution of the contract. Should Town not renew a contract, the award and authorization of the contract shall automatically expire. Town shall give Consultant at least 30 days’ notice, prior to the cancellation or expiration of the contract. 2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. Attachment 4 Agreement for Consultant Services (Pass-Through Account) Kimley-Horn Associates Page 2 of 6 2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 2.6 Compensation. Compensation for Consultant's professional services shall not exceed the established hourly rates, as set forth in the Fee Schedule (Exhibit A), which is attached hereto and incorporated herein by reference. Payment shall be based upon Town approval of each task. 2.7 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. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031-0655 2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 2.9 Assignability and Subcontracting. 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 Town. 2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an Agreement for Consultant Services (Pass-Through Account) Kimley-Horn Associates Page 3 of 6 agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). 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 testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters 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. 2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm 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 contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. Agreement for Consultant Services (Pass-Through Account) Kimley-Horn Associates Page 4 of 6 iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Consultant agrees to have and maintain, for the duration of the contract, 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 Town, 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 Town, its officers, officials, employees and volunteers. Any insurance or self- insurances maintained by the Town, 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 Town, its officers, officials, employees or volunteers. 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. 3.2 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 Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ Compensation. It is understood that Consultant currently has no employees. If employees are hired in the future, Consultant shall obtain and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town. Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. Agreement for Consultant Services (Pass-Through Account) Kimley-Horn Associates Page 5 of 6 3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend the Town 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, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. IV. GENERAL TERMS 4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant: WooJae Kim Adam Dankberg Town Engineer Kimley-Horn Town of Los Gatos 10 Almaden Boulevard, Suite 1250 41 Miles Avenue San Jose, CA 95113 Los Gatos, CA 95030 Phone: (408) 399-5773 Phone: (669) 800-4139 E-mail: wkim@losgatosca.gov E-mail:adam.dankberg@kimley-horn.com Agreement for Consultant Services (Pass-Through Account) Kimley-Horn Associates Page 6 of 6 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect to the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.8 Entire Agreement. This Agreement, including Exhibit A, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. In WITNESS WHEREOF, the Town and Consultant have executed this Agreement. Town of Los Gatos Consultant: ____________________________ ___________________________ Laurel R. Prevetti, Town Manager Adam Dankberg Town of Los Gatos Kimley-Horn Department Approval: ___________________________ Timm Borden Interim Parks and Public Works Director Approved as to Form: ___________________________ Robert W. Schultz Town Attorney Statement of Qualifications for On-Call Traffic Engineering Consultant Services 43Town of Los Gatos  TROC95026.2021 8 Preliminary Fee Schedule As requested by the Town, we have provided our fee schedule below. This fee schedule includes all work and labor including, but not limited to, our costs for site visits and travel expenses. In addition, we have also provided the Preliminary Fee Schedule of sub-consultants. Rate Schedule Effective June 1, 2021 to July 1, 2022 Position Title Rates Analyst $120 - $170 Professional $185 - $230 Sr. Professional $240 - $310 Principal/Sr. Technical Advisor $315 - $345 Project Support $100 - $160 Rates are subject to annual 5% increases effective each July 1st. Direct expenses, including mileage, postage, printing, and other expenses will be billed at actual cost incurred or consistent with IRS regulations. Exhibit A Statement of Qualifications for On-Call Traffic Engineering Consultant Services  44Town of Los Gatos  TROC95026.2021 Armando D. DuPont, PLS 7780 Los Angeles 411 Jenks Circle, Suite 205, Corona, CA 92880 Phone (951) 280-9960 Fax (951) 280-9746 Rate Schedule (2021) Item Description Unit Unit Price Field Support Field Survey Crew & Equipment (Prevailing Wage)* Hour $360.00 Round Trip Travel Time & Costs Hour $145.00 Office Support Principal Hour $255.00 Director Surveying/Professional Land Surveyor Hour $215.00 Senior Project Manager Hour $180.00 Project Surveyor Hour $165.00 GPS Post Processing Hour $155.00 Survey Technician Hour $150.00 Drafting/AutoCAD Technician Hour $115.00 Accounting / Clerical Hour $80.00 Reimbursable Costs In-House Reproductions Cost + 15% Printing and Materials Cost + 15% Parking and Tolls Cost + 15% Express Mail, Courier, Next Day Service Cost + 15% Special Sub-Consultant Services (GPR, etc.) Cost + 10% Miscellaneous Services Per Diem (when required) Day Per GSA Schedule Consultation in Connection with Litigation Hour $450.00 Transportation (per 2018 IRS Mileage Rate) Mile $0.575 Overtime and Saturday Rates Hour 1.5 times Hourly Rate The hourly rate increase 3% per year to cover cost of living. Also a 10% mark-up will be added to any sub-consultants utilized to cover project management and administration costs. Hourly rates good for 2020. *4 or 8 Hour Minimum Statement of Qualifications for On-Call Traffic Engineering Consultant Services  45Town of Los Gatos  TROC95026.2021 Northern California Pricing 2021 Intersection Turning Movements Region 2 Hour 2 Hour 4 Hour 4 Hour 6 Hour 6 Hour 1 Person 2 Person 1 Person 2 Person 1 Person 2 Person Bay Area $145 $220 $250 $375 $360 $550 Sacramento $145 $220 $240 $360 $340 $500 Outer Area $175 $275 $280 $425 $380 $575 Far-Outer Area $200 $300 $300 $450 $400 $600 Machine / Hose Counts Region Volume Speed and/or Class 1st Day Additonal Days 1st Day Additonal Days Bay Area $85 $35 $135 $45 Sacramento $85 $35 $135 $45 Outer Area $100 $45 $135 $55 Far-Outer Area $115 $55 $135 $65 24 Hour Cameras Region 1st Day Additional Days Review of Video Bay Area $150 $50 $25 / Hour Sacramento $150 $50 $25 / Hour Outer Area $200 $75 $25 / Hour Far-Outer Area $250 $100 $25 / Hour Drone Surveys Region Drone Operator* Drone Flight Time Review of Video Bay Area $75 / Hour $75 / 20 Minutes $25 / Hour Sacramento $75 / Hour $75 / 20 Minutes $25 / Hour *1 hour of operator setup time is required for all drone counts Wavetronix Region Wavetronix Only* With Backup Camera** 1st Day Additional Days 1st Day Additional Days Bay Area $350 $150 $600 $300 Sacramento $350 $150 $600 $300 Outer Area $400 $175 $700 $350 Far-Outer Area $450 $200 $800 $400 *Price reflects a 1 unit installation. Most project sites require 2 units for installation Statement of Qualifications for On-Call Traffic Engineering Consultant Services  46Town of Los Gatos  TROC95026.2021 **Camera installation is for any 4 hours of review to correct Wavetronix detection during heavy periods of Northern California Pricing Additional Services Region Bike / Ped Counts Parking Survey Travel Time Radar (high vol) Radar (average vol) Radar (low vol) Bay Area $60 / Hour $60 / Hour $120 / Hour $50 $90 $120 Sacramento $60 / Hour $60 / Hour $120 / Hour $50 $90 $120 Outer Area $75 / Hour $75 / Hour $120 / Hour $75 $115 $150 Statement of Qualifications for On-Call Traffic Engineering Consultant Services  47Town of Los Gatos  TROC95026.2021 FEE SCHEDULE EFFECTIVE THROUGH DECEMBER 2023 STAFF CATEGORY 2021 2022 2023 Project Manager $ 275 - $ 325 $ 283 - $ 335 $ 292 - $ 345 Sr. Project Engineer/QA QC Manager $ 200 - $ 250 $ 206 - $ 258 $ 212 - $ 265 Senior Geologist $ 200 - $ 235 $ 206 - $ 242 $ 212 - $ 249 Sr. Project Engineer/Geologist $ 145 - $ 220 $ 149 - $ 227 $ 154 - $ 233 Project Engineer $ 145 - $ 175 $ 149 - $ 180 $ 154 - $ 186 Project Geologist $ 115 - $ 165 $ 118 - $ 170 $ 122 - $ 175 Sr. Staff Engineer/PE $ 100 - $ 150 $ 103 - $ 155 $ 106 - $ 159 Staff Engineer $ 85 - $ 135 $ 88 - $ 139 $ 90 - $ 143 Field Engineer/Geologist $ 70 - $ 175 $ 72 - $ 180 $ 74 - $ 186 Senior Technician $ 85 - $ 135 $ 88 - $ 139 $ 90 - $ 143 Lab Technician $ 70 - $ 105 $ 72 - $ 108 $ 74 - $ 111 Drafting/Cadd Tech $ 70 - $ 150 $ 72 - $ 155 $ 74 - $ 159 Contract Administration $ 200 - $ 250 $ 206 - $ 258 $ 212 - $ 265 Field Engineer/Prevailing Wage TBD * CONSTRUCTION PHASE: All time spent over 8 hours per day and Saturdays for field personnel will be charged at 1.5 times the hourly rate. Sunday work will be charged at twice the hourly rate. All charges are portal‐to‐ portal and mileage will be charged at 53.5 cents per mile. Field time, including travel time, will be charged in a two‐hour increment. Any chargeable time that falls in between these increments will be charged at the rate of the next two‐hour increment. Prevailing wages will dictate the field rates wherever applicable. OUTSIDE SERVICES: Drilling rental of special equipment and other outside charges will be invoiced at cost plus 10%. Direct contracting/billing and payment will not incur these costs. Outside services, beyond those included in the proposal, will not be performed without prior authorization from the Client. Miscellaneous outside reimbursable expenses encountered during the performance of our work, such as printing and other incidentals, will be billed at cost plus 10%. Outside services, beyond those included in the proposal, will not be performed without prior authorization from the Client. The hourly rates indicated above shall remain in effect through December 2023. These escalations are on an average of 3% per year. * Prevailing wage will apply to field personnel performing Materials Testing work with the project- specific determination per the Department of Industrial Relations (DIR) requirements. Statement of Qualifications for On-Call Traffic Engineering Consultant Services  48Town of Los Gatos  TROC95026.2021 1243 Alpine Road, Suite 108 Walnut Creek, CA 94596 Phone: 925.941.0017 Fax: 925.941.0018 www.wreco.com | Civil Engineering | Environmental Compliance | Geotechnical Engineering | Water Resources | BILLING RATE SCHEDULE Hourly Rate of FY 2021 (01/01/2021 ‐ 12/31/2021) TITLE MINIMUM MAXIMUM Principal Professional $260.00 $310.00 Supervising Professional II $220.00 $260.00 Supervising Professional I $180.00 $220.00 Senior Professional III $170.00 $210.00 Senior Professional II $145.00 $170.00 Senior Professional I $120.00 $145.00 Associate Professional II $110.00 $130.00 Associate Professional I $90.00 $110.00 Staff Professional II $85.00 $105.00 Staff Professional I $65.00 $85.00 Senior Technician II $105.00 $130.00 Senior Technician I $80.00 $105.00 Technician II $65.00 $80.00 Technician I $50.00 $65.00 Project Coordinator / Tech Editor II $85.00 $130.00 Project Coordinator / Tech Editor I $55.00 $85.00 •Professional staff includes Civil Engineers, Hydraulic Engineers, Geotechnical Engineers, Geologists, Biologists, and Environmental Scientists. •Expenses are invoiced at 110% of cost. •Unless expressed within the contract agreement, rates on all contracts are subject to an annual adjustment of a 3% escalation rate on January 1 of each calendar year. •Rates for deposition and trial time are 1.5 times those shown above. •Regular Mileage is per IRS rate (currently at $0.56 per mile) or as otherwise specified in contract. Agreement for Consultant Services (Pass-Through Account) TJKM Transportation Consultants Page 1 of 6 AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is dated for identification this 3rd day of May 2022 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and TJKM Transportation Consultants, (“Consultant”), whose address is 4305 Hacienda Drive, Suite 550, Pleasanton, CA 94588. This Agreement is made with reference to the following facts. I.RECITALS 1.1 Town has a need for On-Call Traffic Engineering consulting services (Pass-Through Account) for development projects in the Town of Los Gatos. 1.2 Town desires to engage a licensed professional traffic engineering firm to review, analyze, and comment on development project plans; prepare traffic impact analyses and reports per Town policies and guidelines; conduct peer review of developer traffic reports; and attend public meetings as needed. 1.3 Consultant represents and affirms that the firm is qualified and willing to perform the desired work pursuant to this Agreement. II.AGREEMENTS 2.1 Scope of Services. Consultant shall provide traffic engineering consulting services in compliance with the Town’s Transportation Impact Policy and Guideline including, but not limited, to Vehicles Miles Traveled (VMT) analysis, trip generation studies, site circulation and access review, intersection and roadway Level of Service (LOS) analysis, and other services as needed. 2.2 Time of Performance. Consultant shall perform the services described in this agreement as follows: The services of Consultant are for a five year period that will commence upon the execution of the contract. Should Town not renew a contract, the award and authorization of the contract shall automatically expire. Town shall give Consultant at least 30 days’ notice, prior to the cancellation or expiration of the contract. 2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. Attachment 5 Agreement for Consultant Services (Pass-Through Account) TJKM Transportation Consultants Page 2 of 6 2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 2.6 Compensation. Compensation for Consultant's professional services shall not exceed the established hourly rates, as set forth in the Fee Schedule (Exhibit A), which is attached hereto and incorporated herein by reference. Payment shall be based upon Town approval of each task. 2.7 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. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031-0655 2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 2.9 Assignability and Subcontracting. 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 Town. 2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an Agreement for Consultant Services (Pass-Through Account) TJKM Transportation Consultants Page 3 of 6 agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). 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 testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters 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. 2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm 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 contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. Agreement for Consultant Services (Pass-Through Account) TJKM Transportation Consultants Page 4 of 6 iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Consultant agrees to have and maintain, for the duration of the contract, 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 Town, 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 Town, its officers, officials, employees and volunteers. Any insurance or self- insurances maintained by the Town, 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 Town, its officers, officials, employees or volunteers. 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. 3.2 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 Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ Compensation. It is understood that Consultant currently has no employees. If employees are hired in the future, Consultant shall obtain and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town. Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. Agreement for Consultant Services (Pass-Through Account) TJKM Transportation Consultants Page 5 of 6 3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend the Town 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, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. IV. GENERAL TERMS 4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant: WooJae Kim Nayan Amin Town Engineer TJKM Transportation Consultants Town of Los Gatos 4305 Hacienda Drive, Suite 550 41 Miles Avenue Pleasanton, CA 94588 Los Gatos, CA 95030 Phone: (408) 399-5773 Phone: E-mail: wkim@losgatosca.gov E-mail: namin@tjkm.com Agreement for Consultant Services (Pass-Through Account) TJKM Transportation Consultants Page 6 of 6 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect to the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.8 Entire Agreement. This Agreement, including Exhibit A, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. In WITNESS WHEREOF, the Town and Consultant have executed this Agreement. Town of Los Gatos Consultant: ____________________________ ___________________________ Laurel R. Prevetti, Town Manager Nayan Amin Town of Los Gatos TJKM Transportation Consultants Department Approval: ___________________________ Timm Borden Interim Parks and Public Works Director Approved as to Form: ___________________________ Robert W. Schultz Town Attorney On-Call Traffic Engineering Consultant Services | 32 FEE SCHEDULE Rate Schedule Principal ....................................................................................................................................................$250/hour Director .....................................................................................................................................................230/hour Senior Project Manager .......................................................................................................................210/hour Project Manager .....................................................................................................................................180/hour Senior Transportation Engineer .........................................................................................................165/hour Transportation Engineer ......................................................................................................................145/hour Assistant Transportation Engineer ....................................................................................................125/hour Senior Transportation Planner ...........................................................................................................125/hour Transportation Planner.........................................................................................................................120/hour Assistant Transportation Planner ......................................................................................................115/hour Graphics Designer .................................................................................................................................110/hour Designer ...................................................................................................................................................100/hour Technical Staff II ...................................................................................................................................... 90/hour Administration Staff ............................................................................................................................... 80/hour Production Staff ...................................................................................................................................... 55/hour Reimbursable Expenses Plotting (per sheet)................................................................................................................................$18.00 Travel Cost (per mile, subject to change; based on IRS standard mileage rates) .................... 0.56 All outside services are billed at cost plus a ten percent margin for handling. Expert Witness charges available upon request. Rates Effective April 1, 2022 Rates Subject to Change Exhibit A This Page Intentionally Left Blank Agreement for Consultant Services (Pass-Through Account) Whitlock & Weinberger Transportation (W-Trans) Page 1 of 6 AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is dated for identification this 3rd day of May 2022 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Whitlock & Weinberger Transportation (W-Trans), (“Consultant”), whose address is 7901 Oakport Street, Suite 1500, Oakland, CA 94621. This Agreement is made with reference to the following facts. I.RECITALS 1.1 Town has a need for On-Call Traffic Engineering consulting services (Pass-Through Account) for development projects in the Town of Los Gatos. 1.2 Town desires to engage a licensed professional traffic engineering firm to review, analyze, and comment on development project plans; prepare traffic impact analyses and reports per Town policies and guidelines; conduct peer review of developer traffic reports; and attend public meetings as needed. 1.3 Consultant represents and affirms that the firm is qualified and willing to perform the desired work pursuant to this Agreement. II.AGREEMENTS 2.1 Scope of Services. Consultant shall provide traffic engineering consulting services in compliance with the Town’s Transportation Impact Policy and Guideline including, but not limited, to Vehicles Miles Traveled (VMT) analysis, trip generation studies, site circulation and access review, intersection and roadway Level of Service (LOS) analysis, and other services as needed. 2.2 Time of Performance. Consultant shall perform the services described in this agreement as follows: The services of Consultant are for a five year period that will commence upon the execution of the contract. Should Town not renew a contract, the award and authorization of the contract shall automatically expire. Town shall give Consultant at least 30 days’ notice, prior to the cancellation or expiration of the contract. 2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. Attachment 6 Agreement for Consultant Services (Pass-Through Account) Whitlock & Weinberger Transportation (W-Trans) Page 2 of 6 2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 2.6 Compensation. Compensation for Consultant's professional services shall not exceed the established hourly rates, as set forth in the Fee Schedule (Exhibit A), which is attached hereto and incorporated herein by reference. Payment shall be based upon Town approval of each task. 2.7 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. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031-0655 2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. 2.9 Assignability and Subcontracting. 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 Town. 2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an Agreement for Consultant Services (Pass-Through Account) Whitlock & Weinberger Transportation (W-Trans) Page 3 of 6 agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). 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 testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters 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. 2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm 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 contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. Agreement for Consultant Services (Pass-Through Account) Whitlock & Weinberger Transportation (W-Trans) Page 4 of 6 iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Consultant agrees to have and maintain, for the duration of the contract, 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 Town, 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 Town, its officers, officials, employees and volunteers. Any insurance or self- insurances maintained by the Town, 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 Town, its officers, officials, employees or volunteers. 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. 3.2 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 Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ Compensation. It is understood that Consultant currently has no employees. If employees are hired in the future, Consultant shall obtain and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town. Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. Agreement for Consultant Services (Pass-Through Account) Whitlock & Weinberger Transportation (W-Trans) Page 5 of 6 3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend the Town 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, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. IV. GENERAL TERMS 4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: To Consultant: WooJae Kim Mark Spencer Town Engineer Whitlock & Weinberger Transportation Town of Los Gatos (W-Trans) 41 Miles Avenue 7901 Oakport Street, Suite 1500 Los Gatos, CA 95030 Oakland, CA 94621 Phone: (408) 399-5773 Phone: (408) 690-7279 E-mail: wkim@losgatosca.gov E-mail: mspencer@w-trans.com Agreement for Consultant Services (Pass-Through Account) Whitlock & Weinberger Transportation (W-Trans) Page 6 of 6 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect to the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.8 Entire Agreement. This Agreement, including Exhibit A, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. In WITNESS WHEREOF, the Town and Consultant have executed this Agreement. Town of Los Gatos Consultant: ____________________________ ___________________________ Laurel R. Prevetti, Town Manager Mark Spencer Town of Los Gatos Whitlock & Weinberger Transportation (W- Trans) Department Approval: ___________________________ Timm Borden Interim Parks and Public Works Director Approved as to Form: ___________________________ Robert W. Schultz Town Attorney 17Statement of Qualifications for On-Call Traffic Engineering Consultant Services Fee Schedule Following is our 2022 Fee Schedule by Staff Member. For each on-call assignment, we will submit a scope of work and fee estimate by task and staff member. 490 Mendocino Avenue, Suite 201 SANTA ROSA, CA95401 707.542.9500 7901 Oakport Street, Suite 1500 OAKLAND, CA 94612 510.444.2600 w-trans.com 2022 Fee Schedule by Staff Member Name Title Billing Rate Dalene J. Whitlock Senior Principal $330/hour Steve Weinberger Senior Principal $295/hour Mark Spencer Senior Principal $290/hour Brian Canepa Principal $260/hour Zack Matley Principal $245/hour Steve Fitzsimons Principal $225/hour Barry Bergman Senior Planner $200/hour Kenny Jeong Senior Traffic Engineer $180/hour Kevin Carstens Traffic Engineer $170/hour Cameron Nye Associate Engineer $160/hour Allison Jaromin Associate Engineer $155/hour Nick Brunetto Assistant Engineer III $135/hour Jade Kim Assistant Planner II $135/hour Hannah Yung-Boxdell Administrative Supervisor $130/hour Corinne Rasmussen Executive Assistant $130/hour Alex Scrobonia Administrative Assistant $115/hour 490 Mendocino Avenue, Suite 201 SANTA ROSA, CA 95401 707.542.9500 7901 Oakport Street, Suite 1500 OAKLAND, CA 94612 510.444.2600 w-trans.com Fee Schedule 2022 Staff Billing Rates Position Billing Rate (per hour) Senior Principal $290 – $335 Principal $225 – $275 Senior Engineer/Planner $180 – $210 Engineer/Planner $170 – $180 Associate Engineer/Planner $150 – $165 Assistant Engineer/Planner $120 – $140 Technician/Administrative $115 – $130 Intern $30 – $80 Field Technician $30 – $75 2022 Expense Charges Item Charge Mileage $0.64/mile* Services and Expenses 10% surcharge These rates are valid for work performed prior to December 31, 2022. Work performed after January 1, 2023, and any subsequent year may be billed at the revised rates established for that year. * Mileage charge will be based on the IRS Standard Mileage Rate (set at $0.585/mile effective January 1, 2022) plus 10 percent. Exhibit A