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Home My WebLink About103-Attachment 2 Village Pedestrian Enhancement Phase 2 Design Contract.pdf Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work CITY OF SARATOGA STANDARD INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENT is made at Saratoga, California by and between the CITY OF SARATOGA, a municipal corporation ("City"), and Gates & Associates, "Contractor"), who agree as follows: RECITALS WHEREAS, City requires the services of a qualified contractor to provide the work product described in Exhibit A of this Agreement; and WHEREAS, City lacks the qualified personnel to provide the specified work product; and WHEREAS, Contractor is duly qualified to provide the required work product; and WHEREAS, Contractor is agreeable to providing such work product on the terms and conditions hereinafter set forth. NOW THEREFORE, the parties hereto agree as follows: 1. RESULTS TO BE ACHIEVED Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the work product described in Exhibit A ("Scope of Work"). Contractor is not authorized to undertake any efforts or incur any costs whatsoever under the terms of this Agreement until receipt of a fully executed Purchase Order from the Finance Department of the City of Saratoga. 2. TERM The term of this Agreement commences on December 22, 2011 and extends through May 22, 2012 or the completion of the project, whichever occurs first, unless it is extended by written mutual agreement between the parties, provided that the parties retain the right to terminate this Agreement as provided in Exhibit D at all times. 3. PAYMENT City shall pay Contractor for work product produced pursuant to this Agreement at the time and in the manner set forth in Exhibit B ("Payment"). The payments specified in Exhibit B shall be the only payments to be made to Contractor in connection with Contractor’s completion of the Scope of Work pursuant to this Agreement. Contractor City of Saratoga Independent Contractor Agreement Page 1 Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work shall submit all billings to City in the manner specified in Exhibit B; or, if no manner is specified in Exhibit B, then according to the usual and customary procedures and practices which Contractor uses for billing clients similar to City. 4. FACILITIES AND EQUIPMENT Except as set forth in Exhibit C ("Facilities and Equipment"), Contractor shall, at its sole cost and expense, furnish all facilities and equipment, which may be required for completing the Scope of Work pursuant to this Agreement. City shall furnish to Contractor only the facilities and equipment listed in Exhibit C according to the terms and conditions set forth in Exhibit C. 5. GENERAL PROVISIONS City and Contractor agree to and shall abide by the general provisions set forth in Exhibit D ("General Provisions"). In the event of any inconsistency between said general provisions and any other terms or conditions of this Agreement, the other term or condition shall control insofar as it is inconsistent with the General Provisions. 6. EXHIBITS All exhibits referred to in this Agreement are attached hereto and are by this reference incorporated herein and made a part of this Agreement. 7. CONTRACT ADMINISTRATION This Agreement shall be administered on behalf of City by Dave Anderson ("Administrator"). The Administrator has complete authority to receive information, interpret and define City's policies consistent with this Agreement, and communicate with Contractor concerning this Agreement. All correspondence and other communications shall be directed to or through the Administrator or his or her designee. 8. NOTICES All notices or communication concerning a party's compliance with the terms of this Agreement shall be in writing and may be given either personally, by certified mail, return receipt requested, or by overnight express carrier. The notice shall be deemed to have been given and received on the date delivered in person or the date upon which the postal authority or overnight express carrier indicates that the mailing was delivered to the address of the receiving Party. The Parties shall make good faith efforts to provide advance courtesy notice of any notices or communications hereunder via telefacsimile. However, under no circumstances shall such courtesy notice satisfy the notice requirements set forth above; nor shall lack of such courtesy notice affect the validity of service pursuant to the notice requirement set forth above. Any Party hereto, by giving ten (10) days written notice to the other, may designate any City of Saratoga Independent Contractor Agreement Page 2 Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work other address as substitution of the address to which the notice or communication shall be given. Notices or communications shall be given to the Parties at the addresses set forth below until specified otherwise in writing: Notices to Contractor shall be sent to: David Gates Gates & Associates 2671 Crow Canyon Rd San Ramon, CA 94583 Notices to City shall be sent to: Dave Anderson, City Manager City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 With a copy (which copy shall not constitute notice) to: City Clerk City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 9. ENTIRE AGREEMENT This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to Contractor's completion of the Scope of Work on behalf of City and contains all of the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No amendment, alteration, or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto. City of Saratoga Independent Contractor Agreement Page 3 Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Page 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CONTRACTOR: Gates & Associates By: ________________________________ Date: _________________ Print Name: _______________________ Position: ___________________________ CITY OF SARATOGA, a municipal corporation By: __________________________________ Date: __________________ Name: Dave Anderson Title: City Manager APPROVED AS TO FORM: By:_______________________________ Date:___________________ City Attorney Attachments Exhibit A -- Scope of Work Exhibit B -- Contract Payment and Reporting Schedule Exhibit B-1 -- Rate Schedule Exhibit C -- Facilities and Equipment Exhibit D -- General Provisions Exhibit E -- Insurance Requirements Exhibit F -- Caltrans Forms Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work EXHIBIT A SCOPE OF WORK illage Pe SARATOGA – V PROJECT SCOPE: destrian Improvements Phase 2 1. Blaney Plaza: modify the corner of Big Basin Way and Highway 9, new low tmvswall/fences and planing. Iproe the croswalk at Saratoga/Los Gatos Road connecting Blaney Plaza and the corner where Starbuck resides 2. Saratoga/Los Gatos Road new sidewalk from the corner where Starbuck resides to Oak Street, new tree wells, removable bollard and new street lights ሺAt the Starbuck corner, the curb grades will be verified, identify if there is existing conduit for an electrical connection, provide the reconstruction of paving as required for the electrical connection, and provide a roadway section for the proposed vehicular pavingሻ 3.Provide bulbout and crosswalk improvements at Big Basin Way and Saratoga 5 Plaza 4.Provide bulbout and crosswalk improvements at Big Basin Way and th Street 5.Modify a driveway connection and provide bulbout and crosswalk improvements at Big Basin Way and 6th Street out and crosswalk 6.Big Basin Way at Saratoga/Los Gatos, provide bulb rainage design for new bus shelter. improvements .7 8 Provide grading and d . age Plan Overall/Sign Serapate Task: 1. Provide sidewalk closure from Fire Station to the Post Office on Saratoga Avenue The objective of this task is to collect base data from te Cityand throughfield ASK 1 – DATA O T C LECTION SubTask 1.1 – Kick‐off h ld observation. Meet with City Staff to review project goals, issues, schedule and other aspects of pMeeting SubTask 1.2 – Fie cce roject management. ield reconnaissance with Staff to review existing conditions and Phase I project. Reonnaissan SubTask 1.3 – Base Map Prep F BKF will revisit the project site to perform initial field investigations. Existing features will be verified via a topographic survey. The existing aerial mapping for the Phase I project will be supplemented with the topographic survey to develop the project base sheets for the Phase II project. Topographic field surveys will include surveys necessary to confirm utilities and drainage facilities, pavement and curb elevations, conforms, obstructions, trees, lighting fixtures, fences, walls and ny other features necessary to complete the design. The supplemental survey will d at the locations identified in the strip map ሺsee attachment Aሻ a be conducte S: T e PRODUC chedulS Survey ING: EET taff 1 M S City of Saratoga Independent Contractor Agreement Page 5 Exhibit A – Scope of Work Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work T D ASK 2 – DESIGN EEVLOPMENT SubTask 2.1 – Concept The objective of this task is to develop a community endorsed, implementab City of Saratoga Independent Contractor Agreement Page 6 Exhibit A – Scope of Work le & streetscape improvement and signage plan. repare concept plans for each of nine ሺ9ሻ areas describing improvements. Development SubTask 2.2 – Monumentation/Signage P age plan. Prepare overall sign Prepare images of: • • Primary Arch / Portal ሺ45’ spanሻ Custom timber pole banner support • Themed pole signs for directional, parking and way‐finding Refine final plans and signage concepts, Assemble package of preferred street furniture and materials including landscape, sidewalk & cross walk paving; crosswalk lighting, street furniture such as benches, trash receptacles, bicycle s. SubTask 2.3 – Streetscape Signage Refinements racks, tree grates & guards, hanging baskets and way‐finding device Meet with staff to review plans and estimate. Identify refinements. SubTask 2.4 – Staff Review SubTask 2.5 – COMMUNITY MEETING At workshop present the preferred plans and signage concepts. Assist the community in evaluating the option. Identify a preferred option. #2 SubTask 2.6 – Public Hearing resent plan to City Council to obtain authorization to proceed to construction P d ocuments. PRODUCTS: MEETINGS: Concept Plans Staff Meetings 1 Signage Concept Community Meetings 1 Signage Plan ity Council Refined Streetscape &C 1 orkshop materials unnta W Cocil Presetion Materials The intent to present a comprehensive and overall view of the project elements to a design level where the vision of the conceptual design is advanced and can be confirmed. All components of the proposed improvements will be addressed in the 65% design plans and estimate. All Project sheets, which will be represented in the bid documents, will be identified and developed in varying degrees of detail during TASK 3 – 65% PS&E ONSTRUCTION RAWINGS C D this phase. Review and detail the proposed design improvements proposed for the project. Vertical design, including pavement elevations, will be refined during the 65% PS&E design effort. The longitudinal slope of the curb and gutter, which defines the drainage patterns, will be detailed and integrated with the pedestrian improvements along the cross walk and bulb‐out areas. Where necessary, drainage modifications will be proposed to intercept obstructed overland flow. Eval nditions and proposed improvements to ensure that facility is AD SubTask 3.1 – Plans Specifications uate the existing co • ets A compliant. Demolition She • Layout Sheets Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work • t, layout & details Site furnishings enhancemen • • Typical Cross Sections • Drainage and grading plans • ffic Handling Plans Signing and Striping Plans tion and Tra • Stage Construc • Construction Detail Sheets • Caltrans format Cost Estimate • Project Specifications in • Electrical plans Planting plan & details • Irrigation plan & details Perform a quality control review for the 65% submittal design package including verifying compliance with the City requirements. The review will also include cnfirming that the submittal is in compliance with the requirements for an e o xpenditure authorization ሺE‐76ሻ. repare plans, specs and details for signage system including structural SubTask 3.2 – Signage City of Saratoga Independent Contractor Agreement Page 7 Exhibit A – Scope of Work Package SubTask 3.3 – Construction Strategy P calculations. Conceptual stage construction plans will be developed during this phase. It is important that the stage construction implement specific traffic handling plans, including temporary pavement delineations, to consider free‐flow movement during construction for vehicles, parking, bicycles and pedestrians. The stage construction plans will provide for circulation and access to the adjoining parking areas and cross streets. The design will verify that sufficient roadway width with proper safety improvements is maintained throughout all phases of construction. Clear signage will be incorporated into the stage construction plans to clearly delineate changes to existing traffic patterns. RODUCTS:P 65% PS&E ING: MEET Staff 1 The objective of the 95% civil design plans and specifications is to incorporate comments, complete the design development phase, and resolve any remaining project issues. All the plans, specifications and estimate will be brought to completion. Details will be refined and completed. For the 95% submittal, BKF will produce a complete, checked and bid‐ready set of documents for the City’s and TASK 4 – 95% PS&E Caltrans review. Work with the City and Caltrans on resolving and incorporating all design comments resulting from the 65% submittal. Prior to completion of the 95% design documents, the design team will conduct additional site investigations. It is rucial that the design engineers are confident that existing conditions are c o SubTask 4.1 ‐ Plans & Specifications c depicted acurately in the bid‐ready dcuments. Complete in‐house quality control review of all outgoing documents. Cost ll be updated and compared to the available budget. estimates wi PRODUCTS: Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work 95% PS&E calculations Necessary MEETING: Staff 1 TA SK 5 ‐ FINAL PS&E SubTask 5.1–100% Plans, Specification Estimate The objective of the task is final bid documents. Incorporate or resolve any final remaining comments received as a result of the 95% submittal. All aspects of the design will be finalized at this point in order to prepare a complete set of final, biddable and constructible documents ready for immediate advertisement. It is anticipated that no further design development will take place in this task. The cost estimate and specifications will be updated and o its final form. Irrigation calculations. & formatted t S: PRODUCT inal PS&EF Bid Form MEETINGS: Sat ff 1 The objective of this task is to support the City through the bidding, contract award, and construction phases of the project. TASK 6 – NSTRUCTION CO SERVICES SubTask 6.1 ‐ Bidding The con : sultant team will assist the City during the Bid process as follows Interpretation of plans and specifications for bidders Preparation of technical aspects of addenda to be issued by the City. • • SubTask 6.2 – Construction Administration The consultant Team will assist the City during project construction as follows: • Submittal reviews: Review and process all submittals and shop drawings specifically required in the technical specifications. • Construction Meetings: Attendance at 2 construction meetings to review construction progress, make adjustments, approve construction layout, review City of Saratoga Independent Contractor Agreement Page 8 Exhibit A – Scope of Work Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work grading concept, approve plant material and planting layout. Provide a written field report following each site visit. • Clarifications: Respond to contractors RFI's and City questions. SubTask 6.3 – Prepare As‐Built Drawings repare as‐built drawings in CAD format, incorporating postings, field changes and ded by manufacturers. P manuals provi d PRODUCTS Addenda as neede ields Reports wings F Record Dra EETINGS M Construction Meetings 4 Provide sidewalk closure from Fire Station to the Post Office on Saratoga Avenue. SK 7 – SIDEWALK TA CLOSURE SubTask 7.1 ‐ Plans, mate repare plans, specs, details and estimate. Specification & Esti P TASK 8 ‐ OPTIONAL: DESIGN EXCEPTIONS After confirming the geometric horizontal and vertical design, BKF will conduct a final review of the geometry and complete the Design Checklist ሺDIB78ሻ, to ensure that all mandatory and advisory design exceptions are identified. After meeting with Caltrans on concurrence of Project features and design exceptions, BKF will prepare Design Exception Fact Sheets for submission to Caltrans for review and approval. The scope of work accounts for the preparation and approval of four design exceptions. BKF would suggest that the Fact Sheets be submitted in the initial submittal stages of the PS&E in order to start the review process, which tends to take longer than PS&E review and approval. In this case, the issuance of the encroachment permit for the Project will not be delayed by the Fact Sheet pproval and signature. a City of Saratoga Independent Contractor Agreement Page 9 Exhibit A – Scope of Work Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Page 10 Exhibit A – Scope of Work Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work EXHIBIT B PAYMENT 1. TOTAL COMPENSATION . City shall pay Contractor at the rates set forth on the attached rate schedule, exhibit B-1. The total compensation (including equipment, supply, and expense costs) pursuant to Exhibit A – Scope of Work of this Agreement shall not exceed one hundred seventy nine thousand nine hundred forty three Dollars ($179,943) 2. INVOICES Contractor shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for work performed prior to the invoice date. Hourly Rates schedule is shown on Exhibit B-1. Invoices shall be sent to the City no later than the 15th of the month following the month term being invoiced for. Invoices shall contain the following information: i. Serial identifications of bills for each applicant/project, i.e. Invoice No.1 on each individual invoice sheet. ii. Reference the City’s application number per applicant/project (as identified on the City transmittal cover sheets) on each individual invoice sheet. iii. The beginning and ending dates of the billing period on each individual invoice sheet. iv. A summary cover sheet containing the total contract amount, the amount of prior billings, the total due this period, and the remaining balance available for all remaining billing periods. 3. MONTHLY PAYMENTS City shall make monthly payments, based on such invoices, for satisfactory progress in completion of the Scope of Work. 4. REIMBURSABLE EXPENSES There shall be no right to reimbursement of expenses incurred by Contractor except as specified in Exhibit A to this Agreement. City of Saratoga Independent Contractor Agreement Page 11 Exhibit B – Payment Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work EXHIBIT B-1 RATE SCHEDULE David Gates & Associates EFFECTIVE THROUGH JUNE 2012 I. Hourly Fees for Services of: Rate Per Hour Founder $185.00 Principal $135.00 - $155.00 Associate Landscape Architect $120.00 - $130.00 Sr. Landscape Architect $105.00 - $120.00 Jr. Landscape Architect $85.00 - $105.00 Sr. Landscape Designer $95.00 - $115.00 Landscape Designer $80.00 - $105.00 Sr. Design Technician $95.00 - $105.00 Design Technician $75.00 - $90.00 Sr. Irrigation Designer $115.00 - $125.00 Irrigation Design Technician $75.00 - $90.00 Sr. Visual Communications Designer $110.00 - $115.00 Visual Communications Designer $90.00 - $110.00 Marketing Coordinator $90.00 - $110.00 Administrative Staff $70.00 - $90.00 II. Expenses (Reimbursables) A. Consultants at approximately the same rates indicated above or on consultant fee schedules. B. Other direct expenses at cost which may include: 1. Printing and reproduction costs. 2. Mileage and travel costs. 3. Miscellaneous Hourly rates may be adjusted on July 1 of each year and shall apply for any services rendered after that date. City of Saratoga Independent Contractor Agreement Page 12 Exhibit B-1 – Rate Schedule Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work EXHIBIT C FACILITIES AND EQUIPMENT City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Contractor's use while consulting with City employees and reviewing records and the information in possession of City. The location, quantity, and time of furnishing said physical facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility which may involve incurring any direct expense, including, but not limiting the generality of this exclusion, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Contractor shall not use such services, premises, facilities, supplies or equipment for any purpose other than in the performance of Contractor's obligations under this Agreement. City of Saratoga Independent Contractor Agreement Page 13 Exhibit C – Facilities and Equipment Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work EXHIBIT D GENERAL PROVISIONS 1. INDEPENDENT CONTRACTOR At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. Contractor shall complete the Scope of Work hereunder in accordance with currently approved methods and practices in Contractor's field. City shall have the right to control Contractor only with respect to specifying the results to be obtained from Contractor pursuant to this Agreement. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Likewise, no relationship of employer and employee is created by this Agreement between the City and Contractor or any subcontractor or employee of Contractor. Nothing contained in this Agreement shall be construed as limiting the right of Contractor to engage in Contractor profession separate and apart from this Agreement so long as such activities do not interfere or conflict with the performance by Contractor of the obligations set forth in this Agreement. Interference or conflict will be determined at the sole discretion of the City. 2. STANDARD OF PERFORMANCE Contractor shall complete the Scope of Work required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Contractor is engaged in the geographical area in which Contractor practices its profession. All work product of whatsoever nature which Contractor delivers to City pursuant to this Agreement shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of quality normally observed by a person practicing in Contractor’s profession. 3. TIME Contractor shall devote such time to the Scope of Work pursuant to this Agreement as may be reasonably necessary for satisfactory performance of Contractor's obligations pursuant to this Agreement. 4. CONTRACTOR NO AGENT Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 5. BENEFITS AND TAXES Contractor shall not have any claim under this Agreement or otherwise against City for seniority, City of Saratoga Independent Contractor Agreement Page 14 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work vacation time, vacation pay, sick leave, personal time off, overtime, health insurance, medical care, hospital care, insurance benefits, social security, disability, unemployment, workers compensation or employee benefits of any kind. Contractor shall be solely liable for and obligated to pay directly all applicable taxes, including, but not limited to, federal and state income taxes, and in connection therewith Contractor shall indemnify and hold City harmless from any and all liability that City may incur because of Contractor’s failure to pay such taxes. City shall have no obligation whatsoever to pay or withhold any taxes on behalf of Contractor. 6. ASSIGNMENT PROHIBITED No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. However, with the consent of the City given in writing, Contractor is entitled to subcontract such portions of the work to be performed under this Agreement as may be specified by City. 7. PERSONNEL a. Qualifications. Contractor shall assign only competent personnel to complete the Scope of Work pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the removal of any such persons, Contractor shall, immediately upon receiving notice from city of such desire of City, cause the removal of such person or persons. b. Employment Eligibility. Contractor shall ensure that all employees of Contractor and any subcontractor retained by Contractor in connection with this Agreement have provided the necessary documentation to establish identity and employment eligibility as required by the Immigration Reform and Control Act of 1986. Failure to provide the necessary documentation will result in the termination of the Agreement as required by the Immigration Reform and Control Act of 1986. c. Prevailing Wages. This is a public works contract within the meaning of Part 7 of Division 2 of the California Labor Code (Sections 1720 et seq.). In accordance with California Labor Code Section 1771, all contractors and subcontractors on this public work project shall pay not less than current prevailing wage rates as determined by the California Department of Industrial Relations (“DIR”). Pursuant to Section 1773 of the California Labor Code, the City has obtained the general prevailing rate of wages and employer payments for health and welfare, vacation, pension and similar purposes in the City of Saratoga, a copy of which is on file City of Saratoga Independent Contractor Agreement Page 15 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work at 13777 Fruitvale Avenue, Saratoga, California at the office of the Public Works Director, and shall be made available for viewing to any interested party upon request. 8. CONFLICT OF INTEREST a. In General. Contractor represents and warrants that, to the best of the Contractor’s knowledge and belief, there are no relevant facts or circumstances which could give rise to a conflict of interest on the part of Contractor, or that the Contractor has already disclosed all such relevant information. b. Subsequent Conflict of Interest. Contractor agrees that if an actual or potential conflict of interest on the part of Contractor is discovered after award, the Contractor will make a full disclosure in writing to the City. This disclosure shall include a description of actions, which the Contractor has taken or proposes to take, after consultation with the City to avoid, mitigate, or neutralize the actual or potential conflict. Within 45 days, the Contractor shall have taken all necessary steps to avoid, mitigate, or neutralize the conflict of interest to the satisfaction of the City. c. Interests of City Officers and Staff. No officer, member or employee of City and no member of the City Council shall have any pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. Neither Contractor nor any member of any Contractor’s family shall serve on any City board or committee or hold any such position which either by rule, practice or action nominates, recommends, or supervises Contractor's operations or authorizes funding to Contractor. 9. COMPLIANCE WITH LAWS a. In General. Contractor shall take reasonable care to observe and comply with all laws, policies, general rules and regulations established by City and shall comply with the common law and all laws, ordinances, codes and regulations of governmental agencies, (including federal, state, municipal and local governing bodies) applicable to the performance of the Scope of Work hereunder, including, but not limited to, all provisions of the Occupational Safety and Health Act of 1979 as amended. b. Licenses and Permits. Contractor represents and warrants to City that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Contractor to practice its profession. Contractor represents and warrants to City City of Saratoga Independent Contractor Agreement Page 16 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work that Contractor shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Contractor to practice its profession. In addition to the foregoing, Contractor shall obtain and maintain during the term hereof a valid City of Saratoga Business License. c. Funding Agency Requirements. To the extent that this Agreement may be funded by fiscal assistance from another entity, Contractor shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. d. Drug-free Workplace. Contractor and Contractor’s employees and subcontractors shall comply with the City's policy of maintaining a drug-free workplace. Neither Contractor nor Contractor’s employees and subcontractors shall unlawfully manufacture, distribute, dispense, possess or use controlled substances, as defined in 21 U.S. Code Section 812, including marijuana, heroin, cocaine, and amphetamines, at any facility, premises or worksite used in any manner in connection with performing services pursuant to this Agreement. If Contractor or any employee or subcontractor of Contractor is convicted or pleads nolo contendere to a criminal drug statute violation occurring at such a facility, premises, or worksite, the Contractor, within five days thereafter, shall notify the City. e. Discrimination Prohibited. Contractor assures and agrees that Contractor will comply with Title VII of the Civil Rights Act of 1964 and other laws prohibiting discrimination and that no person shall, on the grounds of race, creed, color, disability, sex, sexual orientation, national origin, age, religion, Vietnam era veteran's status, political affiliation, or any other non-merit factors be excluded from participating in, be denied the benefits of, or be otherwise subjected to discrimination under this Agreement. 10. DOCUMENTS AND RECORDS a. Property of City. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda or other written documents or materials prepared by Contractor pursuant to this Agreement shall become the property of City upon completion of the work to be performed hereunder or upon termination of this Agreement. b. Retention of Records. Until the expiration of five years after the furnishing of any services pursuant to this Agreement, Contractor City of Saratoga Independent Contractor Agreement Page 17 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work shall retain and make available to the City or any party designated by the City, upon written request by City, this Agreement, and such books, documents and records of Contractor (and any books, documents, and records of any subcontractor(s)) that are necessary or convenient for audit purposes to certify the nature and extent of the reasonable cost of services to City. c. Use of Recycled Products. Contractor shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. d. Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility" as per the sample below. ______________________________ Seal and Signature of Registered Professional with report/design responsibility. 11. CONFIDENTIAL INFORMATION Contractor shall hold any confidential information received from City in the course of performing this Agreement in trust and confidence and will not reveal such confidential information to any person or entity, either during the term of the Agreement or at any time thereafter. Upon expiration of this Agreement, or termination as provided herein, Contractor shall return materials which contain any confidential information to City. Contractor may keep one copy for its confidential file. For purposes of this paragraph, confidential information is defined as all information disclosed to Contractor which relates to City's past, present, and future activities, as well as activities under this Agreement, which information is not otherwise of public record under California law. 12. RESPONSIBILITY OF CONTRACTOR Contractor shall take all responsibility for the work, shall bear all losses and damages directly or City of Saratoga Independent Contractor Agreement Page 18 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work indirectly resulting to Contractor, to any subcontractor, to the City, to City officers and employees, or to parties designated by the City, on account of the performance or character of the work, unforeseen difficulties, accidents, occurrences or other causes to the extent predicated on active or passive negligence of the Contractor or of any subcontractor. 13. INDEMNIFICATION Contractor and City agree that City, its employees, agents and officials shall, be fully protected from any loss, injury, damage, claim, lawsuit, cost, expense, attorneys fees, litigation costs, defense costs, court costs or any other cost to the extent arising out of or in any way related to the negligent performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the parties to be interpreted and construed to provide the fullest protection possible under the law to the City. Contractor acknowledges that City would not enter into this agreement in the absence of the commitment of Contractor to indemnify and protect City as set forth below. a. Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold harmless City, its employees, agents and officials, from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs (including, without limitation, costs and fees of litigation) of any kind whatsoever without restriction or limitation, incurred in relation to, as a consequence of or arising out of or in any way attributable actually, allegedly or impliedly, in whole or in part, to the performance of this Agreement. All obligations under this provision are to be paid by Contractor as they are incurred by the City. b. Limitation on Indemnity. Without affecting the rights of City under any provision of this agreement or this section, Contractor shall not be required to defend, indemnify and hold harmless City as set forth above for liability attributable to the active negligence, sole negligence, or willful misconduct of City, provided such active negligence, sole negligence, or willful misconduct is determined by agreement between the parties or the findings of a court of competent jurisdiction. c. Scope of Contractor Obligation. The obligations of Contractor under this or any other provision of this Agreement will not be limited by the provisions of any workers' compensation act or similar act. Contractor expressly waives its statutory immunity under such statutes or laws as to City, its employees and officials. d. Subcontractors. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, sub tier contractor or any other person or entity involved by, for, with or on behalf of Contractor City of Saratoga Independent Contractor Agreement Page 19 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work in the performance or subject matter of this Agreement. In the event Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. e. In General. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns, or heirs of Contractor and shall survive the termination of this agreement or this section. For purposes of Section 2782 of the Civil Code the parties hereto recognize and agree that this Agreement is not a construction contract. By execution of this Agreement, Contractor acknowledges and agrees that it has read and understands the provisions hereof and that this paragraph is a material element of consideration. City approval of the insurance contracts required by this Agreement does not relieve the Contractor or subcontractors from liability under this paragraph. 14. INSURANCE REQUIREMENTS Contractor shall procure and maintain for the duration of the contract insurance as set forth in Exhibit E. The cost of such insurance shall be included in the Contractor’s bid. 15. DEFAULT AND REMEDIES a. Events of default. Each of the following shall constitute an event of default hereunder: 1. Failure to perform any obligation under this Agreement and failure to cure such breach immediately upon receiving notice of such breach, if the breach is such that the City determines the health, welfare, or safety of the public is immediately endangered; or 2. Failure to perform any obligation under this Agreement and failure to cure such breach within fifteen (15) days of receiving notice of such breach, if the breach is such that the City determines that the health, welfare, or safety of the public is not immediately endangered, provided that if the nature of the breach is such that the City determines it will reasonably require more than fifteen (15) days to cure, Contractor shall not be in default if Contractor promptly commences the cure and diligently proceeds to completion of the cure. b. Remedies upon default. Upon any Contractor default, City shall have the right to immediately suspend or terminate the Agreement, City of Saratoga Independent Contractor Agreement Page 20 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work seek specific performance or contract with another party to perform this Agreement. c. No Waiver. Failure by City to seek any remedy for any default hereunder shall not constitute a waiver of any other rights hereunder or any right to seek any remedy for any subsequent default. 16. TERMINATION Either party may terminate this Agreement with or without cause by providing 10 days notice in writing to the other party. The City may terminate this Agreement at any time without prior notice in the event that Contractor commits a material breach of the terms of this Agreement. Upon termination, this Agreement shall become of no further force or affect whatsoever and each of the parties hereto shall be relieved and discharged here-from, subject to payment for acceptable services rendered prior to the expiration of the notice of termination. Notwithstanding the foregoing, the provisions of this Agreement concerning retention of records, City's rights to material produced, confidential information, consultant's responsibility, indemnification, insurance, dispute resolution, litigation, and jurisdiction and severability shall survive termination of this Agreement. 17. DISPUTE RESOLUTION The parties shall make a good faith effort to settle any dispute or claim arising under this Agreement. If the parties fail to resolve such disputes or claims, they shall submit them to non-binding mediation in California at shared expense of the parties for at least 8 hours of mediation. If mediation does not arrive at a satisfactory result, arbitration, if agreed to by all parties, or litigation may be pursued. In the event any dispute resolution processes are involved, each party shall bear its own costs and attorneys fees. 18. LITIGATION In the event that either party brings an action under this agreement for breach or enforcement thereof, the prevailing party in such action shall be entitled to its reasonable attorneys’ fees and costs whether or not such action is prosecuted to judgement. 19. JURISDICTION AND SEVERABILITY This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be in that state and venue shall be in Santa Clara County, California. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. City of Saratoga Independent Contractor Agreement Page 21 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work 20. NOTICE OF NON-RENEWAL Contractor understands and agrees that there is no representation, implication, or understanding that the City will request that work product provided by Contractor under this Agreement be supplemented or continued by Contractor under a new agreement following expiration or termination of this Agreement. Contractor waives all rights or claims to notice or hearing respecting any failure by City to continue to request or retain all or any portion of the work product from Contractor following the expiration or termination of this Agreement. 21. PARTIES IN INTEREST This Agreement is entered only for the benefit of the parties executing this Agreement and not for the benefit of any other individual, entity or person. 22. WAIVER Neither the acceptance of work or payment for work pursuant to this Agreement shall constitute a waiver of any rights or obligations arising under this Agreement. The failure by the City to enforce any of Contractor’s obligations or to exercise City's rights shall in no event be deemed a waiver of the right to do so thereafter. 22. Covenant Against Contingent Fees The Contractor warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the Contractor; to solicit or secure this agreement; and that he/she has not paid or agreed to pay any company or person other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award, or formation of this agreement. For breach or violation of this warranty, the local agency shall have the right to annul this agreement without liability, or at its discretion; to deduct from the agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. 24. Patent Rights Contractor agrees to applicable patent rights provisions described in 41 CFR 1-9.1 regarding rights to inventions. 25. Subcontractors, Assignment and Transfer All subcontracts exceeding $25,000 in cost shall contain all required provisions of the prime contract. 26. Contractor’s Endorsement on PS&E/Other Data The responsible Contractor/Consultant/Engineer shall sign all plans, specifications, estimates (PS&E) and engineering data furnished by City of Saratoga Independent Contractor Agreement Page 22 Exhibit D – General Provisions Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Page 23 Exhibit D – General Provisions him/her, and where appropriate, indicate his/her California registration number. 27. DBE and UDBE Considerations In conformance with Title 49 Code of the Code of Federal Regulations Part 26 Caltrans Local Assistance Procedures Manual and Caltrans Local Programs Procedures The City of Saratoga has established an Underutilized DBE (UDBE) goal for federal fiscal year 2011/2012 beginning on October 1st and ending on September 30th. Contractors must give consideration to DBE firms as specified in 23 CFR 172.5(b), 49 CFR Part 26, and in Exhibit 10-I “Notice to Bidders/Proposers Disadvantaged Business Enterprise Information.” The contract has an under-utilized DBE (UDBE) goal, the Contractor must meet the UDBE goal by using UDBEs as subcontractors/subconsultants or document a good faith effort to meet the goal. If a UDBE subcontractor/subconsultant is unable to perform, the Contractor must make a good faith effort to replace him/her with another UDBE subcontractor/subconsultant if the goal is not otherwise met. The Underutilized DBE (UDBE) has been established at 3.05% The Contractor agrees to comply with UDBE requirements. See attached Local Assistance Procedures Manual Exhibits 10-O1 and 10-O2. 28. Nonlobbying Certification For Federal-Aid Contracts The Contractor agrees to comply with items 1 and 2 of the attached Local Assistance Procedures Manual Exhibit 10-P. Furthermore, the Contractor agrees to require that the language of this Certification be included in all lower-tier subcontracts which exceed $100,000 and that all such sub- recipients shall certify and disclose accordingly. Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work EXHIBIT E INSURANCE Please refer to the insurance requirements listed below. Those that have an “X” indicated in the space before the requirement apply to Contractor’s Agreement (ignore any not checked). Contractor shall provide its insurance broker(s)/agent(s) with a copy of these requirements and request that they provide Certificates of Insurance complete with copies of all required endorsements to: Administrative Services Officer, City of Saratoga, 13777 Fruitvale Avenue, Saratoga, CA 95070. Contractor shall furnish City with copies of original endorsements affecting coverage required by this Exhibit E. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements and certificates are to be received and approved by City before work commences. City has the right to require Contractor’s insurer to provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications. X Commercial General/Business Liability Insurance with coverage as indicated: X $1,000,000 per occurrence/$2,000,000 aggregate limits for bodily injury and property damage ___ $ ____________ per occurrence bodily injury/$ ___________ per occurrence property damage ___ Coverage for X, C, U hazards MUST be evidenced on the Certificate of Insurance ___ If the standard ISO Form wording for "OTHER INSURANCE", or other comparable wording, is not contained in Contractor's liability insurance policy, an endorsement must be provided that said insurance will be primary insurance and any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers shall be in excess of Contractor's insurance and shall not contribute to it. X Auto Liability Insurance with coverage as indicated: X $1,000,000 combined single limit for bodily injury and property damage City of Saratoga Independent Contractor Agreement Page 24 Exhibit E - Insurance Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work ___ $ ____________ per person/$__________ per accident for bodily injury ___ $ ____________ per occurrence for property damage ___ $ 500,000 combined single limit for bodily injury and property damage ___ Garage keepers extra liability endorsement to extend coverage to all vehicles in the care, custody and control of the consultant, regardless of where the vehicles are kept or driven. X Professional/Errors and Omissions Liability with coverage as indicated: X $1,000,000 per loss/ $2,000,000 aggregate $5,000,000 per loss/ $5,000,000 aggregate Contractor must maintain Professional/Errors & Omissions Liability coverage for a period of three years after the expiration of this Agreement. Contractor may satisfy this requirement by renewal of existing coverage or purchase of either prior acts or tail coverage applicable to said three-year period. X Workers' Compensation Insurance X Including minimum $1,000,000 Employer's Liability The Employer's Liability policy shall be endorsed to waive any right of subrogation as respects the City, its employees or agents. The Contractor makes the following certification, required by section 1861 of the California Labor Code: I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract X Additional Insured Endorsement(s) for Commercial General/Business Liability coverage naming the City of Saratoga, its officers, employees and agents as additional insured. (NOTE: additional insured language on the Certificate of Insurance is NOT acceptable without a separate endorsement such as Form CG 20 10) City of Saratoga Independent Contractor Agreement Page 25 Exhibit E - Insurance Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work X The Certificate of Insurance MUST provide 30 days notice of cancellation, (10 days notice for non-payment of premium). NOTE: the following words must be crossed out or deleted from the standard cancellation clause: ". . . endeavor to . . ." AND ". . . but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representatives." All subcontractors used must comply with the above requirements except as noted below: As to all of the checked insurance requirements above, the following shall apply: a. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials and employees; or (2) the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. b. City as Additional Insured. The City, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor, premises owned, occupied or used by the Contractor, or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of the protection afforded to the City, its officers, officials, employees or volunteers. c. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: 1. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. 2. The Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. City of Saratoga Independent Contractor Agreement Page 26 Exhibit E - Insurance Contract For: Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Page 27 Exhibit E - Insurance 3. Coverage shall not be suspended, voided, canceled by either party, 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 City. d. Acceptability of Insurers. Insurance is to be placed with insurers with a Bests' rating of no less than A: VII Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 28 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 29 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 30 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 31 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 32 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 33 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 34 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 35 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 36 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 37 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 38 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 39 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 40 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 41 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 42 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 43 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 44 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 45 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 46 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 47 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 48 Contract for Saratoga Village Pedestrian Improvement Phase 2 Design Work City of Saratoga Independent Contractor Agreement Exhibit F-Caltrans Forms Page 49