HomeMy WebLinkAbout103-Independent Contractor Agreement.pdf
CITY OF SARATOGA
PUBLIC WORKS DEPARTMENT STANDARD
INDEPENDENT CONSULTANT AGREEMENT
PROSPECT ROAD MEDIANS IMPROVEMENT PROJECT
THIS AGREEMENT is made at Saratoga, California by and between the CITY
OF SARATOGA, a municipal corporation ("City"), and CALLANDER
ASSOCIATES LANDSCAPE ARCHITECTURE, INC., ("Consultant"), who agree
as follows:
RECITALS
WHEREAS, City requires the services of a qualified Consultant to provide
the professional services described in Exhibit A of this Agreement; and
WHEREAS, City lacks the qualified personnel to provide the specified
professional services; and
WHEREAS, Consultant is duly qualified to provide the required professional
services; and
WHEREAS, Consultant is agreeable to providing such professional services
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, Consultant shall provide to City the professional
services described in Exhibit A ("Scope of Services"). Consultant 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 August 1,
2007, and extends through August 1, 2008 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 (“General Provisions”) at all times.
3. PAYMENT City shall pay Consultant for professional services
rendered 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
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the only payments to be made to Consultant in connection with
Consultant’s completion of the Scope of Services pursuant to this
Agreement. Consultant 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
Consultant uses for billing clients similar to City.
4. FACILITIES AND EQUIPMENT Except as set forth in Exhibit C
("Facilities and Equipment"), Consultant shall, at its sole cost and expense,
furnish all facilities and equipment, which may be required for completing
the Scope of Services pursuant to this Agreement. City shall furnish to
Consultant 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 Consultant 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
Consultant 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
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hereto, by giving ten (10) days written notice to the other, may designate any
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 Consultant shall be sent to:
Peter Callander, Senior Principal
Callander Associates Landscape Architecture, Inc.
325 South First Street, Suite 300
San Jose, CA 95113
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
Consultant's completion of the Scope of Services 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CONSULTANT:
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
APPROVED AS TO BUDGET AUTHORITY AND INSURANCE:
By:_______________________________ Date: __________________
Administrative Services Director
Attachments
Exhibit A -- Scope of Services
Exhibit B -- Payment
Exhibit C -- Facilities and Equipment
Exhibit D -- General Provisions
Exhibit E -- Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Consultant shall complete following Scope of Services.
1. Analysis
The Consultant shall:
• Attend a kick-off meeting to review Scope of Services and project
schedule, assist in preparing meeting agenda and meeting
summary;
• Obtain from the City, copies of available recorded maps,
improvement plans, as-built or record utility plans, aerial
photographs, previous master plans and median plans pertinent to
the project and prepare summary memo;
• Prepare overall site plan based on City-provided aerial
photographs and parcel map in approximately twenty scale
including existing utilities;
• Perform site reconnaissance, review existing conditions,
photograph the site, and prepare a photo log. Provide City two
copies and one electronic copy;
• Review proposed and/or potential points of connection for
irrigation water and electrical/telephone sources for irrigation
controllers. Review preferred irrigation equipment and control
system with City staff, prepared irrigation connection and
equipment memo including summary of water conservation
measures;
• Additional Service: Recommend pavement coring number and
location to document existing pavement conditions. Coordinate a
pavement coring company to drill a limited number of 2” diameter
cores in medians if needed. Prepare a summary report, reflecting
the results in the Landscape Median Master Plans and cost
estimates. This task will only be completed upon receipt of a
written authorization from the City and would be billed on a lump
sum fee basis to be documented in a written amendment to this
agreement.
2. Conceptual Median Landscape Design
The Consultant shall:
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• Based on the analysis results and City staff input, prepare a Draft
Conceptual Master Plan at forty scale showing proposed median
configuration (configuration to be based on location of existing
yellow double lines), trees, shrubs, groundcover and hardscape.
Prepare four cross sections at quarter scale, render in color;
• Prepare up to two image boards showing proposed planting,
irrigation equipment and other images to convey general design
characteristics. Submit five 11x17 color copies and one pdf of all
images on the image boards;
• Prepare two enlarged plans of two portions of the more typical
medians to illustrate the general design character, render in color;
• Prepare an estimate of probable construction cost including
further design and planning costs. Collaborate with City on
presenting a reasonable phasing plan;
• Prepare an estimate of probable maintenance costs;
• Prepare for and attend a meeting with City staff and others as
warranted to review the draft conceptual master plan, develop a
direction for proceeding with refinements. Prepare meeting
summary.
3. Landscape Median Master Plan
• Based on the input during the Draft Conceptual Master Plan
review, proceed to refine, revise and complete the Landscape
Median Master Plan and provide the following drawings, rendered
in color: overall site, two selected enlarged portions, four typical
cross sections, two image boards, updated construction and
maintenance cost estimate;
• Summarize the above information in an 11x17 color booklet and a
summary of the planning process;
• Prepare for and attend a meeting with City staff and others as
warranted to review the Conceptual Master Plan, develop a
direction for proceeding with refinements. Prepare meeting
summary;
• Prepare “Powerpoint” presentation and present above information
at a City Council meeting. Provide ten copies of the booklet and an
electronic version on a CD.
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EXHIBIT B
PAYMENT
1. TOTAL COMPENSATION City shall pay Consultant an amount not
to exceed the total lump sum of Twenty Eight Thousand Ninety Eight
Dollars ($28,098.00) for services to be performed and reimbursable costs
incurred pursuant to this Agreement, exclusive of any Additional Services
allowance.
2. INVOICES Consultant shall submit invoices, not more often than
once a month during the term of this Agreement, based on the percentage of
completion for professional services rendered prior to the invoice date.
Invoices shall contain the following information:
a. Serial identifications of bills, i.e., Bill No. 1;
b. The beginning and ending dates of the billing period;
c. A summary 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
Services.
4. REIMBURSABLE EXPENSES There shall be no right to
reimbursement of expenses incurred by Contractor except as specified in
Exhibit A to this Agreement.
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EXHIBIT C
FACILITIES AND EQUIPMENT
City shall furnish physical facilities such as desks, filing cabinets,
and conference space, as may be reasonably necessary for Consultant'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. Consultant shall not use such
services, premises, facilities, supplies or equipment for any purpose other
than in the performance of Consultant's obligations under this Agreement.
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EXHIBIT D
GENERAL PROVISIONS
1. INDEPENDENT CONSULTANT At all times during the term of
this Agreement, Consultant shall be an independent consultant and shall
not be an employee of City. Consultant shall complete the Scope of Services
hereunder in accordance with currently approved methods and practices in
Consultant's field. City shall have the right to control Consultant only with
respect to specifying the results to be obtained from Consultant pursuant to
this Agreement. City shall not have the right to control the means by which
Consultant accomplishes services rendered pursuant to this Agreement.
Likewise, no relationship of employer and employee is created by this
Agreement between the City and Consultant or any subconsultant or
employee of Consultant. Nothing contained in this Agreement shall be
construed as limiting the right of Consultant to engage in Consultant
profession separate and apart from this Agreement so long as such activities
do not interfere or conflict with the performance by Consultant 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 Consultant shall provide the
professional services required pursuant to this Agreement in the manner
and according to the standards observed by a competent practitioner of the
profession in which Consultant is engaged in the geographical area in which
Consultant practices its profession. All deliverables of whatsoever nature
which Consultant delivers to City pursuant to this Agreement shall be
prepared in a substantial, first class and professional manner and conform
to the standards of quality normally observed by a person practicing in
Consultant’s profession.
3. TIME Consultant shall devote such time to the Scope of
Services pursuant to this Agreement as may be reasonably necessary for
satisfactory performance of Consultant's obligations pursuant to this
Agreement.
4. CONSULTANT NO AGENT Except as City may specify in writing,
Consultant shall have no authority, express or implied, to act on behalf of
City in any capacity whatsoever as an agent. Consultant shall have no
authority, express or implied, pursuant to this Agreement to bind City to
any obligation whatsoever.
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5. BENEFITS AND TAXES Consultant shall not have any claim under
this Agreement or otherwise against City for seniority, 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.
Consultant 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 Consultant shall indemnify and hold City
harmless from any and all liability that City may incur because of
Consultant’s failure to pay such taxes. City shall have no obligation
whatsoever to pay or withhold any taxes on behalf of Consultant.
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, Consultant is entitled to subcontract such portions of the
professional services to be performed under this Agreement as may be
specified by City.
7. PERSONNEL
a. Qualifications. Consultant shall assign only competent personnel
to complete the Scope of Services 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,
Consultant shall, immediately upon receiving notice from city of
such desire of City, cause the removal of such person or persons.
b. Employment Eligibility. Consultant shall ensure that all
employees of Consultant and any subconsultant retained by
Consultant 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.
8. CONFLICT OF INTEREST
a. In General. Consultant represents and warrants that, to the best
of the Consultant’s knowledge and belief, there are no relevant
facts or circumstances which could give rise to a conflict of
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interest on the part of Consultant, or that the Consultant has
already disclosed all such relevant information.
b. Subsequent Conflict of Interest. Consultant agrees that if an
actual or potential conflict of interest on the part of Consultant is
discovered after award, the Consultant will make a full disclosure
in writing to the City. This disclosure shall include a description
of actions, which the Consultant 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 Consultant 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 Consultant nor any member of any
Consultant’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 Consultant's operations or
authorizes funding to Consultant.
9. COMPLIANCE WITH LAWS
a. In General. Consultant 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 Services hereunder,
including, but not limited to, all provisions of the Occupational
Safety and Health Act of 1979 as amended as applicable to
professional consulting services.
b. Licenses and Permits. Consultant represents and warrants to
City that it has all licenses, permits, qualifications and approvals
of whatsoever nature which are legally required for Consultant to
practice its profession. Consultant represents and warrants to
City that Consultant 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 Consultant
to practice its profession. In addition to the foregoing, Consultant
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
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to which City is bound by the terms of such fiscal assistance
program.
d. Drug-free Workplace. Consultant and Consultant’s employees
and subConsultants shall comply with the City's policy of
maintaining a drug-free workplace. Neither Consultant nor
Consultant’s employees and subConsultants 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 Consultant or
any employee or subConsultant of Consultant is convicted or
pleads nolo contendere to a criminal drug statute violation
occurring at such a facility, premises, or worksite, the Consultant,
within five days thereafter, shall notify the City.
e. Discrimination Prohibited. Consultant assures and agrees that
Consultant 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 Consultant pursuant to this
Agreement shall become the property of City upon completion of
the professional services 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, Consultant
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 Consultant (and any books,
documents, and records of any subconsultant(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. Consultant 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.
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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 Consultant 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, Consultant shall return materials which contain any
confidential information to City. Consultant may keep one copy for its
confidential file. For purposes of this paragraph, confidential information is
defined as all information disclosed to Consultant 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
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 Consultant 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
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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, Consultant
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
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 Consultant 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, Consultant acknowledges and agrees that it has read and
understands the provisions hereof and that this paragraph is a
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material element of consideration. City approval of the insurance
contracts required by this Agreement does not relieve the Consultant
or subconsultants from liability under this paragraph.
14. INSURANCE REQUIREMENTS Consultant 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 Consultant’s
compensation as described in Exhibit B.
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, Consultant shall
not be in default if Consultant promptly commences the cure
and diligently proceeds to completion of the cure.
b. Remedies upon default. Upon any Consultant default, City shall
have the right to immediately suspend or terminate the Agreement,
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 Consultant 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
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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 judgment.
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.
20. NOTICE OF NON-RENEWAL Consultant understands and agrees
that there is no representation, implication, or understanding that the City
will request that professional services provided by Consultant under this
Agreement be supplemented or continued by Consultant under a new
agreement following expiration or termination of this Agreement. Consultant
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 professional services
from Consultant 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 professional services or payment
for professional services pursuant to this Agreement shall constitute a
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waiver of any rights or obligations arising under this Agreement. The failure
by the City to enforce any of Consultant’s obligations or to exercise City's
rights shall in no event be deemed a waiver of the right to do so thereafter.
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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 Consultant’s
Agreement (ignore any not checked).
Consultant 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.
Consultant 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
professional services commences. City has the right to require Consultant’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 Consultant'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
Consultant'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
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___ $ ____________ 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
Consultant must maintain Professional/Errors & Omissions Liability
coverage for a period of three years after the expiration of this
Agreement. Consultant 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 Consultant 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 professional services 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)
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
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mail such notice shall impose no obligation or liability of any kind
upon the company, its agents or representatives."
___ All subconsultants 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
Consultant 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, and
employees are to be covered as insureds as respects: liability
arising out of activities performed by or on behalf of the
Consultant; products and completed operations of the Consultant,
premises owned, occupied or used by the Consultant, or
automobiles owned, leased, hired or borrowed by the Consultant.
The coverage shall contain no special limitations on the scope of
the protection afforded to the City, its officers, officials, or
employees .
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 Consultant’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.
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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