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or intended uses, (v) any other matter whatsoever concerning the License Area or equipment therein, including without limitation any warranty of merchantability or fitness for a particular purpose. Licensee acknowledges that neither City nor any agent of City has made any representation or warranty with respect to the suitability of the License Areas for the conduct of Licensee's business. City shall not be liable for any latent or patent defects in the License Area. If required for the conduct of Licensee's business, Licensee shall be responsible for requesting an inspection and obtaining a Certificate of Occupancy from the City of Foster City and becoming familiar with the License Area, any equipment therein, the needs of its operations. This shall include, but not be limited to, any necessary fire sprinkler upgrades, compliance with the ADA (defined in Section 6) and any other requirements mandated by the Certificate of Occupancy.
2.5 City's Reserved Rights. City hereby reserves the right, and at any time and from time to time, without the same constituting an actual or constructive eviction, to make alterations, additions, repairs, improvements to or in all or any part of the Community Center, and Common Area within and around the Community Center and to change the arrangement and/or location of entrances or passageways, doors and doorways, corridors, elevators, stairs, toilets and other public parts of the Community Center and parking areas, drive isles, landscaping, curb cuts and paved and unpaved portions of the exterior Common Area. Without limiting the foregoing, City reserves the right from time to time to install, use, maintain, repair, relocate and replace pipes, ducts, conduits, wires, meters and equipment for services to the License Area or other part of the Community Center which are above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas of the Community Center which are located within the License Area or located elsewhere in the Community Center. In connection with any of the foregoing activities, City shall use reasonable efforts to minimize any interference with Licensee's use of the License Area and shall not, without the prior written approval of Licensee, (a) materially change the location, size or configuration of the License Area; or (b) do anything which would have a material and adverse effect on access to the License Area, or ingress and egress to the License Area. No rights to any view or to light or air over any property, whether belonging to City or any other person, are granted to Licensee by this License.
2.6 No Interest in Land Granted. Nothing herein shall be deemed to grant to Licensee any fee interest, leasehold, or other possessory interest in the property which the Community Center occupies, or any portion thereof, or any exclusive right or special status to negotiate or purchase. This Agreement grants a limited revocable license upon specified terms and no more.
3. TERM:
3.1 Generally. The term of this License ("Term") shall commence on September 22, 2026 ("Commencement Date") and terminate on September 21, 2031 ("Expiration Date”). The Commencement Date is contingent upon all of the following occurring:
(1) The License Agreement has been approved by City’s City Council and executed by Licensee and City, (2) Construction has been completed; and (3) City has obtained a certificate of occupancy and any other required permits to commence operations at the Community Center.
3.2 Extended Terms. The initial term of this Agreement shall be five (5) years commencing on the Commencement Date. Licensee may request up to two (2) successive extension terms of two (2) years each (“Extended Terms”). The Extended Terms may be requested by Licensee by providing written notice to the City not less than one hundred eighty (180) days prior to the expiration of the Term or first Extended Term. Each Extended Term shall be subject to the mutual written agreement of the City and Licensee and shall be documented through a written amendment executed by both parties. Licensee shall have no automatic or irrevocable right to extend the term.
Item 5.3
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Upon receipt of a request from Licensee for an Extended Term , the City may consider, but is not limited to, the following factors in determining whether to assent to the request for extension of the Term: Licensee’s payment and reporting history; compliance with the terms of this Agreement, operating hours; cleanliness and maintenance of the License Area; health inspection history; customer service and customer complaints; revenue performance; cooperation with Community Center programs, rentals, and events; and the absence of repeated, material, or uncured defaults.
3.3 Emergency Termination. In the event of a natural disaster, epidemic, pandemic, war, civil disobedience or other emergency situation; the Community Center may be used or required or ordered to be used by a federal/state/county or city agency requiring use of all or a portion of the Community Center. In such event, this Agreement may be terminated by City immediately, and if a termination occurs, City shall not be liable to Licensee for any loss or expenses that Licensee or its employees, agents, clients, visitors, and consultants may incur as a result of the termination and Licensee hereby expressly releases City from any such liability related thereto.
3.4 Early Termination. City may terminate this Agreement during the Term, in the sole discretion of the City Manager, by providing Licensee with ninety (90) days’ prior written notice.
Licensee may terminate this Agreement during the Term by providing City with ninety (90) days’ prior written notice. The exercise of Licensee’s termination right under this Section shall not constitute a default under this Agreement.
Licensee shall remain responsible for all License Fees, Additional Fees, and any other obligations accrued through the effective date of termination. Upon termination, City shall return any unused portion of the Security Deposit to Licensee in accordance with Section 4.9 of this Agreement
4. LICENSE FEES:
4.1 Base License Fee. The fee for use of the License Area during the Term shall be the amount specified in the Basic License Information. The License Fee shall be paid without prior notice or demand. The License Fee shall be paid no later than the 10th day of each month. The Licensee shall provide to the City with the License Fee a monthly statement of the Licensee’s Gross Receipts from the prior month. The License Fee shall be paid to the City of Foster City at 610 Foster City Boulevard, Foster City, CA 94404 and sent to the attention of the City Manager or such other place as City shall direct. If the Term commences on a day other than the first day of the calendar month, the License Fee for any such partial month shall be prorated at the rate of one-thirtieth of the monthly License Fee for each day of the period. If the Term ends on a day other than the last day of the calendar month, the License Fee for any such partial month shall be prorated at the rate of one thirtieth of the monthly License Fee for each day of the period.
4.2 "Gross Receipts" shall mean all income, receipts, fees, and other consideration generated, earned, received, or receivable by Licensee from or attributable to operations conducted in, on, or from the License Area or Commercial Kitchen Area, including café sales, catering, delivery, online and mobile orders, and cash and credit transactions, whether or not payment is ultimately collected.
4.3 “Gross Receipts” shall exclude only the following:
4.3.1 Sales, use, and similar transaction taxes separately stated to customers, collected by Licensee, and remitted to the applicable governmental authority; Item 5.3
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4.3.2 Bona fide customer refunds and returns actually paid or credited, but only to the extent the original transaction was previously included in Gross Receipts;
4.3.3 Voluntary tips and gratuities separately stated and distributed in full to non-managerial employees; and
4.3.4 Actual third-party credit card processing fees incurred by Licensee.
4.4 Discounts/Deductions. A discount applied at the time of sale shall reduce Gross Receipts only to the customer's actual purchase price. Any reimbursement, subsidy, coupon payment, or promotional payment received from a manufacturer, delivery platform, affiliated entity, or other third party shall be included in Gross Receipts. No deduction shall be permitted for operating expenses, cost of goods sold, labor, marketing expenses, bad debts, or promotional allowances except as expressly provided above.
4.5 Condition Precedent. As a condition precedent to the effectiveness of this Agreement, on or before Licensee's execution of this Agreement, Licensee shall pay to City any unpaid Licensee Fees and Additional Fees, including such unpaid License Fees and Additional Fees due from Licensee prior to the commencement of the Term of this Agreement.
4.6 Additional Fees. As used in this License, the term "Additional Fees" shall mean all sums of money that are due and payable by Licensee under the terms of this Agreement, other than the base License Fee. The term "Fees," as used herein, shall mean the License Fee, Additional Fees, and all other amounts payable hereunder from Licensee to City. Unless otherwise specified herein, all Fees, except the Base License Fee, which is due as stated above, shall be due and payable by Licensee on or before the date that is thirty (30) days after billing by City.
4.7 Late Charge and Interest. The late payment of any Fees will cause City to incur additional costs, including administration and collection costs and processing and accounting expenses ("Delinquency Costs"). If City has not received any installment of Fees within five (5) days after such amount is due, Licensee shall pay a late charge of ten percent (10%) of the delinquent amount immediately. The ten percent (10%) late charge represents a reasonable estimate of the Delinquency Costs incurred by City. City and Licensee recognize that the damage which City shall suffer as a result of Licensee's failure to pay such amounts is difficult to ascertain and said late charge is the best estimate of the damage which City shall suffer in the event of late payment. City's acceptance of late License Fees, partial License Fees, late Additional Fees, other Fees, and late charges does not equate with a waiver of Licensee's default with respect to the overdue amount or prevent City from exercising any rights and remedies available under this Lease and/or by operation of Law.
4.8 Security Deposit. The cash sum specified in the Basic License Information, shall be deposited with City concurrently with Licensee’s execution of this License (“Security Deposit”). City shall hold the Security Deposit as security for the performance of Licensee’s obligations under this Agreement. Licensee is not entitled to any interest on the Security Deposit and City shall not be liable therefor. If Licensee defaults on any provision of this Agreement, City may, at its election and without prejudice to any remedy it has under this Agreement or by operation of Law, apply all or part of the Security Deposit to: (i) Fees or other sums then due and owing under this Agreement; (ii) reasonable costs incurred by City to repair physical damage to the Premises directly caused by Licensee, its officers, agents, employees, independent contractors, subcontractors, invitees, customers, assignees or sublicensees, beyond ordinary wear and tear.
Prior to applying any portion of the Security Deposit, City shall provide Licensee with written notice describing the basis for the deduction and reasonable supporting documentation of the amounts claimed. In the event of an act of bankruptcy by or insolvency of Licensee or the appointment of Item 5.3
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a receiver for Licensee or general assignment for the benefit of Licensee’s creditors, the Security Deposit shall be deemed immediately assigned to City.
4.9 Restoration of Security Deposit; Return of Security Deposit. If City applies any portion of the Security Deposit during the Term, Licensee shall, within ten (10) days after demand by City, deposit with City an amount sufficient to restore the Security Deposit to its original amount. If Licensee performs every provision of this Agreement to be performed by Licensee, the unused portion of the Security Deposit, if any, shall be returned to Licensee or the last assignee of Licensee’s interest under this Agreement within thirty (30) days following the expiration of the Term or earlier termination of the Agreement.
4.10 Transfer of Security Deposit; Assignment or Encumbrance of Security Deposit. If City disposes of its interest in the Premises, City may deliver the remaining Security Deposit to City’s successor in interest in the Premises and thereupon be relieved of further responsibility with respect to the Security Deposit. City shall provide written 30 days’ notice to Licensee of such transfer, including the identity and contact information of the successor in interest responsible for holding the Security Deposit. Licensee may not assign or encumber the Security Deposit without the prior written consent of City. Any attempt to do so shall be void and shall not be binding on City.
4.11 Reduction of Fees due to Emergency. Notwithstanding section 10.2(c), in the event of a fire or other casualty which causes the License Area to be unfit or unavailable for occupancy (“Damaged Property”), the Licensee may submit a written request and the City, in its sole discretion, may grant a reduction of the Base License Fee, on a square footage basis during the time and to the extent any portion of the License Area is unfit or unavailable for occupancy. If the Damaged Property is caused by the negligence or willful misconduct of Licensee or Licensee’s invitees or agents, then this section shall not apply, Nothing stated herein would prohibit the City from terminating this Agreement in accordance with Sections 3.2 or 3.3.
4.12 Audit. By January 15th of each year, Licensee would deliver to City a statement in writing, certified by Licensee to be true and correct, showing the total Gross Receipts for the preceding year (each, a “Statement of Gross Receipts”). Licensee would keep full, complete and proper books, records and accounts of its Gross Receipts with respect to the foregoing items for at least four (4) years, starting on the Commencement Date. City would have the right to examine the books and records of Licensee relative to the business operated from the License Area with respect to each Statement of Gross Receipts within two (2) years after City's receipt of the Statement of Gross Receipts. If Licensee fails to furnish any Statement of Gross Receipts when due, City would have the right, after giving Licensee 10 days’ written notice, to employ an independent certified public accountant to examine Licensee’s books and records and certify the amount of Licensee’s Gross Receipts for the previous year. Unless Licensee objects to such certification within sixty (60) days after receipt thereof, such certification would be binding on Licensee, and Licensee would pay within thirty days the cost of the examination plus any amounts shown to be due per the independent certified public accountant audit.
In addition, City would have the right, once in any calendar year, to cause an audit of the Licensee’s business to be made with respect to the Gross Receipts and, if the Statement of Gross Receipts previously made to City is found to have been understated, Licensee shall pay to the City within 30 days the sum necessary to settle in full the accurate amount of License Fees that should have been paid for the period(s) covered by such inaccurate statement(s).
If an audit or certification discloses an understatement by Licensee in Gross Receipts of 5% or more for the period of any report, then Licensee would pay the audit cost; otherwise, the cost of such audit would be paid by City.
Item 5.3
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4.13 Twelve-Month Review. Following the first anniversary of the Commencement Date, the City and Licensee shall meet to review the License Fee and any other issues related to Licensee's operations under this Agreement. Any adjustment to the License Fee or other terms of the Agreement shall be subject to the mutual written agreement of the parties.
5. TAXES AND OPERATING EXPENSES:
5.1 Taxes
(a) Personal Property and Possessory Interest Taxes. Licensee shall pay all Taxes (as hereinafter defined) levied or imposed against the License Area or Licensee's personal property (including equipment, furniture or personal property) or trade fixtures placed by Licensee in or about the License Areas during the Term ("Personal Property Taxes"). In addition, if the interest created by this Licensee is subject to property taxation under the laws of the State of California, the party in whom the possessory interest is vested shall be subject to the payment of the taxes levied on such interest. This notice is included in this license pursuant to the requirements of Section 107.6 (a) of the Revenue and Taxation Code of the State of California. (b) Payment. Licensee shall pay the Personal Property Taxes or possessory interest taxes in accordance with the instructions of the taxing entity. Licensee shall pay the Personal Property Taxes, if any, originally imposed upon City, upon City's election, either (a) annually within thirty (30) days after the date City provides Licensee with a statement setting forth in reasonable detail such Taxes, or (b) monthly in advance based on estimates provided by City based upon the previous year's tax bill. City shall provide Licensee with written notice and reasonable documentation, including any applicable tax assessment or statement from the taxing authority, before requiring Licensee to pay any Personal Property Taxes or possessory interest taxes. All Personal Property Taxes originally imposed upon City and payable by Licensee with respect to the License Area shall be prorated on a per diem basis for any partial tax year included in the Term. Licensee's obligation to pay Taxes during the last year of the term shall survive the expiration or termination of this License.
5.2 Operating Expenses. All costs of management, operation, maintenance, insuring and repair of the (i) structural elements of the Community Center (including the roof); (ii) Common Area maintenance; and (iii) costs of City's property insurance, if any, are “Operating Expenses.” Except for Licensee's obligation to reimburse City for CAM Charges pursuant to Section 7.1, during the Term, City shall not assess Licensee any such Operating Expenses, unless the same were incurred as a result of the actions or inactions of Licensee, Licensee's invitees or anyone in the control of Licensee, in which event such costs may be charged to Licensee as Additional Fees.
6. USE: COMPLIANCE WITH LAWS:
6.1 Use of License Area. Licensee may use the License Area to operate a Café (coffee shop) as specified in the Basic License Information and substantially similar to the proposal submitted to the City identified on Exhibit C hereto ("Permitted Use") and for no other purposes without the express written consent of City. Licensee acknowledges that neither City nor any agent of City, has made any representation or warranty with respect to the suitability or fitness of the License Area for the conduct of Licensee's business.
6.2 The Licensee shall be open to the public for the Permitted Use for a minimum of 250 working days each year of the Term, absent substantial justification.
Item 5.3
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6.3 Compliance with Laws. Licensee shall comply with all laws, ordinances, rules, regulations and codes, of all municipal, county, state and federal authorities, including the Americans with Disabilities Act, as amended (42 U.S.C. Section 12-1 et seq. [the “ADA”], (collectively, "Laws") pertaining to Licensee's use and occupancy of the License Area and its Permitted Use. Licensee shall not commit, or suffer to be committed, any waste upon the License Area, or any public or private nuisance, or other act or thing that disturbs the quiet enjoyment of any other occupants or surrounding neighborhoods.
7. UTILITIES:
7.1 Payments for Non-Electrical Utilities and Services. City shall be responsible for paying for ordinary costs of water, sewer, gas, refuse collection, janitorial and Common Area maintenance for the Common Areas throughout the term. Licensee shall reimburse City for its documented proportionate share of the actual Community Center's Common Area maintenance and utility expenses ("CAM Charges"). These include all costs incurred by City in connection with the operation, and maintenance of the Property, including but not limited to, Property insurance, non-electrical utilities and maintenance of Common Areas. CAM Charges shall be billed to Licensee quarterly and Licensee shall pay invoices for CAM Charges within thirty (30) calendar days. Notwithstanding the foregoing, Licensee's share of CAM Charges in any year of the Initial Term shall not increase by more than three percent (3%) over the total CAM Charges in the preceding calendar year. This limitation shall not apply to utilities, insurance, taxes, governmentimposed charges, or costs caused by Licensee's operations. Nothing in this paragraph is intended to alter the indemnification provision in Section 10.1 below, or the maintenance and repair obligations of the Parties.
7.2 Electrical Submetered Utilities. The License Area is equipped with a dedicated electrical submeter, identified on Exhibit A, that measures electrical usage associated with the Licensed Area. Licensee is responsible for reimbursing City for all electrical utility costs incurred that are documented with the submeter.
7.3 Licensee is solely responsible for any phone or internet service needed in the License Area.
7.4 No Liability of City. Except in the case of City's gross negligence or willful misconduct, in no event shall City be liable or responsible for any loss, damage, expense or liability, including, without limitation, loss of business or any consequential damages, arising from any failure or inadequacy of any service or utility provided to the License Area, whether resulting from any change, failure, interference, disruption or defect in supply or character of the service or utility provided to the License Area, or arising from the partial or total unavailability of the service or utility to the License Area, from any cause whatsoever, or otherwise, nor shall any such failure, inadequacy, change, interference, disruption, defect or unavailability constitute an actual or constructive eviction of Licensee, or entitled Licensee to any abatement or diminution of License Fees or otherwise relieve Licensee from its obligations under this License.
8. MAINTENANCE AND REPAIR OF LICENSE AREA; ALTERATIONS:
8.1 Maintenance and Repair by Licensee;
8.1.1 Licensee Maintenance. Except as otherwise described in Section
8.2, Licensee shall, at its sole cost and expense, maintain the License Area in good repair and in a neat and clean condition (ordinary wear and tear, casualty and condemnation excepted), including making all necessary repairs and replacements as a result of any damage caused by Licensee's use of the License Area. Licensee's repair and maintenance obligations include, Item 5.3
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without limitation, repairs to: (i) floor coverings; (ii) interior partitions; (iii) doors; (iv) interior side of demising walls; (v) fire life safety equipment, such as smoke detectors and fire alarms, installed solely for Licensee's operations and not part of the Community Center's building-wide systems; (vi) kitchens; (vii) plumbing and similar facilities located within or exclusively serving the License Area, AC units or swamp coolers, only to the extent such repairs are required due to damage caused by Licensee’s use, negligence, or misuse; (viii) and telephone and data equipment and cabling. Licensee shall use the License Area with reasonable care to avoid damage or excessive wear and tear.
8.1.2 Licensee Repair. Licensee shall further, at its own costs and expense, repair or restore any damage or injury, ordinary wear and tear excepted, to all or any part of the non-structural portions of the License Area and utility lines exclusively servicing the License Area caused by Licensee or Licensee's agents, employees, invitees, licensees, visitors or contractors, including but not limited to repairs or replacements necessitated by (i) Licensee's use of the License Area, and (ii) the moving of any property into or out of the License Area.
8.1.3 Storage. Licensee shall not use hallways or kitchen areas for storage and shall keep hallways clear at all times.
8.1.4 Licensee Equipment & Furnishings. Licensee shall, at its own cost and expense, maintain any furnishings, equipment, or other personal property brought within the License Area. All such items shall be removed by Licensee at the end of the Term or earlier expiration or termination of this Agreement.
8.2 City Maintenance and Repair. City shall maintain in good repair, provided such repairs are not necessitated by the actions or inactions of Licensee, Licensee’s invitees or anyone in the employ or control of Licensee: (a) the structural elements of the Community Center, including structural elements of exterior walls and foundations; (b) building-wide systems serving the License Area; and (c) the Common Area. Licensee hereby waives any and all rights under and benefits of subsection 1 of Section 1932, and Sections 1941 and 1942 of the California Civil Code or any similar or successor Laws now or hereby in effect. Licensee shall immediately give City written notice of the need for repair of the items for which City is responsible. If Licensee or Licensee's invitees or anyone in the employ or control of Licensee caused any damages necessitating such repair, then Licensee shall pay to City the cost thereof, immediately upon demand therefor. Except as otherwise expressly set forth in this Agreement, Licensee waives any right to terminate this Agreement or offset or abate its License Fee by reason of any failure of City to make repairs to the License Area or Community Center.
8.3 City Equipment.
(i) City Equipment List. The License Area may come furnished with certain City equipment or furnishings (“City Equipment”). Prior to the Commencement Date, City shall provide a list of such City Equipment to Licensee (“City Equipment List”) which includes the date the City Equipment is due to be replaced. City has set aside funds under its equipment replacement fund to replace City Equipment on the replacement date. City shall replace City Equipment on the City Equipment List at the scheduled time at City’s sole cost. (ii) Licensee Responsibilities. Licensee shall be responsible for routine care, maintenance and repair of City Equipment during the Term at Licensee’s sole cost. If the City Equipment which is required for Licensee operations fails, breaks down or is damaged beyond repair, due to no fault of Licensee, and requires replacement during the Term, the City shall replace the City Equipment at its sole cost. Choice of replacement equipment shall be in the sole discretion of City. Licensee will reasonably cooperate with City to the extent any Item 5.3
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City Equipment is under warranty with the manufacturer.
8.4 Alterations. Licensee shall not make or suffer to be made any alterations, additions, or improvements (collectively, “Alterations”) to or of the License Area, or any part thereof, without first obtaining the written consent of City. City may withhold its consent in its sole and absolute discretion, or alternatively may impose conditions on its approval in its sole and absolute discretion. City conditions may include, without limitation, conditions relating to: (i) compliance with applicable law, (ii) City review of plans, specifications, and permits, (iii) minimizing interference with others using the Community Center, (iv) hours of operations on the improvement work, (v) insurance, bonds, and Licensee indemnification of City, and (vi) whether the improvements will become part of the realty and will become City’s property at the end of the Term, or will need to be removed from the License Area at the end of the Term at Licensee’s sole cost.
9. ENVIRONMENTAL PROTECTION PROVISIONS:
9.1 Hazardous Materials. "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive, flammable, explosive, radioactive or corrosive, including, without limitation, petroleum, solvents, lead, acids, pesticides, paints, printing ink, PCBs, asbestos, materials commonly known to cause cancer or reproductive problems, and those materials, substances and/or wastes, including wastes which are or later become regulated by any local governmental authority in the state in which the License Area is located or the United States Government, including, but not limited to, substances defined as "hazardous substances," "hazardous materials," "toxic substances" or "hazardous wastes" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act; all environmental laws of the state where the Station is located, and any other environmental law, regulation or ordinance now existing or hereinafter enacted. "Hazardous Materials Laws" shall mean all present and future federal, state and local laws, ordinances and regulations, prudent industry practices, requirements of governmental entities and manufacturer's instructions relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, presence, disposal or transportation of any Hazardous Materials, including without limitation the laws, regulations and ordinances referred to in the preceding sentence.
9.2 Reportable Uses Required Consent. Except as permitted in this Section 9, Licensee hereby agrees that Licensee and Licensee's officers, employees, representatives, agents, contractors, subcontractors, successors. assigns, vendors, concessionaires, invitees and any other occupants of the License Area (for purposes of this Section 9, referred to collectively herein as "Licensee's Representatives") shall not cause or permit any Hazardous Materials to be used, generated, manufactured, refined, produced, processed, stored or disposed of, on, under or about the License Area or transport to air from the License Area without the express prior written consent of City, which consent may be limited in scope and predicated on strict compliance by Licensee of all applicable Hazardous Materials Laws and such other reasonable rules, regulations and safeguards as may be required by City {or any insurance carrier, environmental consultant or lender of City, or environmental consultant retained by any lender of City) in connection with using, generating, manufacturing, refining, producing, processing, storing or disposing of Hazardous Materials on, under or about the License Area. In connection therewith, Licensee shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by Licensee or any of Licensee's Representatives of Hazardous Materials on the License Area, including without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the License Area. The foregoing notwithstanding, Licensee may use ordinary and customary materials reasonably required to be used in the course of the Permitted Use, ordinary Item 5.3
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office supplies (copier toner, liquid paper, glue, etc.), common household cleaning materials, and gasoline and oil in vehicle tanks, so long as such use is in compliance with all Hazardous Materials Laws and does not expose the License Area or neighboring property to any meaningful risk of contamination or damage or expose City to any liability therefor.
9.3 Remediation Obligations. If at any time during the Term, any contamination of the License Area by Hazardous Materials shall occur where such contamination is caused by the acts or omission of Licensee or Licensee's Representatives ("Licensee's Contamination"), then Licensee, at Licensee's sole cost and expense, shall promptly and diligently remove such Hazardous Materials from the License Area or the groundwater underlying the License Area to the extent required to comply with applicable Hazardous Materials Laws. Licensee shall not take any required remedial action in response to any Licensee's Contamination in or about the License Area or enter into any settlement agreement, consent, decree or other compromise in respect to any claims relating to any Licensee's Contamination without first obtaining the prior written consent of City, which may be subject to conditions imposed by City as determined in City's sole discretion.
Such prior written consent shall not be required to the extent the delay caused by the requirement to obtain consent may increase the damage to the License Area or the risk of harm to human health, safety or security caused by the Licensee Contamination. City and Licensee shall jointly prepare a remediation plan in compliance with all Hazardous Materials Laws and the provisions of this License. In addition to all other rights and remedies of City hereunder, if Licensee does not promptly and diligently take all steps to prepare and obtain all necessary approvals of a remediation plan for any Licensee's Contamination, and thereafter commence the required remediation of any Hazardous Materials released or discharged in connection with Licensee's Contamination within thirty (30) days after all necessary approvals and consents have been obtained, and thereafter continue to prosecute such remediation to completion in accordance with the approved remediation plan, then City, at its sole discretion, shall have the right, but not the obligation, to cause such remediation to be accomplished, and Licensee shall reimburse City within fifteen (15) business days of City’s demand for reimbursement of all amounts reasonably paid by City (together with interest on such amounts at the highest lawful rate until paid), when such demand is accompanied by proof of payment by City of the amounts demanded. Licensee shall promptly deliver to City copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the License Area as part of Licensee's remediation of any Licensee's Contamination. The foregoing notwithstanding, "Licensee's Contamination" shall not refer to or include any Hazardous Materials that were not dearly introduced to the License Area by Licensee or Licensee's Representatives. As an example, if lead dust or asbestos is found on the License Area, unless there is clear evidence that Licensee introduced those Hazardous Materials to the License Area, those Hazardous Materials shall not be considered "Licensee's Contamination," and it shall not be Licensee's responsibility to take remedial action relating to such Hazardous Materials. Moreover, Licensee shall not be responsible for any Hazardous Materials that were present in, on, or below the License Area before Licensee occupied the License Area.
9.4 City's Inspection Right. City shall have the right to inspect the License Area for compliance with environmental, safety, and occupational health laws and regulations, regardless of whether City is responsible for enforcing or complying with them. Licensee shall have no claim against City, or any officer, agent, employee, contractor or subcontractor of City by reason of entrance of such City officer, agent, employee, contractor or subcontractor onto the License Area, provided such inspection is undertaken as reasonably as possible so as not to disrupt or interfere with the Permitted Use. Except in the event of an emergency, City shall provide Licensee with at least forty-eight (48) hours' prior notice and an opportunity to have a representative present at any inspection.
9.5 Hazardous Materials Indemnity. In addition to any other provisions of this License, Licensee shall, and does hereby agree, to indemnify and hold harmless City from any Item 5.3
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costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal resulting from Licensee's Contamination, giving rise to liability, civil or criminal, or any other action by Licensee or its contractors, employees, agents, or assigns giving rise to responsibility under any Hazardous Materials Laws. Licensee's obligations hereunder shall apply whenever City incurs costs or liabilities for Licensee's Contamination as provided hereunder. This provision shall survive the expiration or termination of this License.
10. INDEMNITY AND WAIVER OF CLAIMS:
10.1 Licensee Indemnification. Licensee shall, to the fullest extent allowed by law, with respect to claims, liability, loss, damage, costs, or expenses, including reasonable attorney's and expert witness fees, awards, fines, penalties, or judgments, arising out of or relating to this Agreement (collectively "Losses") that arise out of, pertain to, or relate to (i) the breach of this Agreement by Licensee, or (ii) the negligence, recklessness, or willful misconduct of Licensee or Licensee’s employees, agents, clients, visitors, or consultants, defend, indemnify, and hold harmless City, its officials, officers, employees and agents ("City Related Parties"), except to the extent the Losses are attributable to City Related Parties' gross negligence or willful misconduct. Licensee shall defend City Related Parties as required by California Civil Code Section 2778, and with counsel reasonably acceptable to City Related Parties.
10.2 Waiver of Claims. Except in the event of City's or City Related Parties' own gross negligence or willful misconduct, City shall not be liable to Licensee and Licensee waives all claims against City and City Related Parties for any injury or damage to any person or property, or death of any person, occurring or incurred in connection with or in any way relating to the License Area from any cause. Without limiting the foregoing, neither City nor any City Related Party shall be liable for and there shall be no abatement of Fees for (a) any damage to Licensee's property stored with or entrusted to any City Related Party, (b) loss of or damage to any property by theft or any other wrongful or illegal act, or (c) any injury or damage to person or property resulting from fire, explosion, steam, electricity, leakage, defects of sprinklers, wires, appliances, plumbing, air conditioning or light fixtures, water or rain that may blow onto the License Area from the streets or other surfaces or from any other place or resulting from dampness or any other cause whatsoever or from the acts or omissions of other occupants or other visitors to the License Area or from any other cause whatsoever, (d) any diminution or shutting off of light, air or view by any structure that may be erected on lands adjacent to the License Area or (e) any latent or other defects in the License Area. City shall not be liable for any damages arising from any act or neglect of any other licensee or occupant, if any, of the Premises or the Property or City's failure to enforce the terms of any agreements with parties other than Licensee. Licensee agrees that in no case shall City or any City Related Party or Licensee be responsible or liable to the other on any theory for any injury to such parties' business, loss of profits, loss of income or any other form of consequential, punitive or incidental damage, except as otherwise provided in Section 10.1.
Licensee has assumed the foregoing risks as a material part of the consideration to City.
10.3 Survival/No Impairment. The obligations of Licensee under this Section 10 shall survive any termination of this License. The foregoing indemnity obligations shall not relieve any insurance carrier of its obligations under any policies required to be carried by either party pursuant to this License, to the extent that such policies cover the peril or currents that results in the claims that is subject to the foregoing indemnity.
11. INSURANCE: Licensee shall procure and maintain for the duration of the License insurance against claims for injuries to persons or damages to property which may arise from or in connection with Licensee's operation and use of the License Area. The cost of such insurance shall be borne by Licensee.
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11.1 Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as:
(i) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence, $2,000,000 general aggregate, and $1,000,000 products and completed operations aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. The policy shall allow and be endorsed as primary and not seek contribution from the City's coverage. The policy(s) shall provide and be endorsed to include the City, its officers, officials, employees, agents, volunteers, and the Estero Municipal Improvement District ("EMID") as additional insureds on ISO Form CG 20 10 or CG 20 26 (or equivalent). The policy shall provide and be endorsed to include a waiver of subrogation in favor of the City, its officers, officials, employees, agents, volunteers, and EMID. Coverage shall state that Licensee'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. (ii) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto), or if Licensee has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000 per accident for bodily injury and property damage. (Note– required only if auto is used in performance of work). The policy shall provide and be endorsed that the City, its officers, officials, employees, agents, volunteers, and EMID are included or named as additional insureds. The policy shall provide and be endorsed to include a waiver of subrogation in favor of the City, its officers, officials, employees, agents, volunteers, and EMID.
(iii) Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. The policy shall provide and be endorsed to include a waiver of subrogation in favor of the City, its officers, officials, employees, agents, volunteers, and EMID.
(iv) Professional Liability: Licensee shall maintain
professional liability insurance that insures against professional errors and omissions that may be made in performing professional services in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of the Commencement Date, and Licensee agrees to maintain continuous coverage through a period of no less than three (3) years after expiration or termination of this Agreement. (v) Sexual Abuse or Molestation (SAM) Liability: If the License includes contact with minors, and the CGL policy referenced above is not endorsed to include affirmative coverage for sexual abuse or molestation, Licensee shall obtain and maintain a policy covering Sexual Abuse and Molestation with a limit no less than $100,000 per occurrence or claim and $300,000 aggregate. The full policy limits shall be available under the policy and not be shared with any other type of claim. Defense costs shall be paid outside the policy limits. (vi) The Insurance Company shall agree to waive all rights of subrogation against the City of Foster City, its elected or appointed officers, officials, agents, volunteers, and employees for losses paid under the terms of any policy which arise from work performed by a Licensee employee for the Licensee. This provision also applies to the Licensee’s Workers’ Compensation policy.
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The policies must each name the City of Foster City, and the Estero Municipal Improvement District (“EMID”) (located at 650 Shell Blvd., Foster City, CA 94404) as certificate holders.
City of Foster City, EMID, and each of their elected and appointed officials, employees, volunteers, and agents must be named as Additional Insured on the General Liability policy on a primary and non-contributory basis. All Certificate Holder privileges apply only if required by written agreement between the Certificate Holder and the insured, and are subject to policy terms and conditions.
If Licensee maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. Any available insurance proceeds broader than, or in excess of, the specified minimum insurance coverage requirements and/or limits shall be available to the additional insureds. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified; or (2) the broader coverage and maximum limits of any insurance policy or proceeds available to Licensee, whichever is greater. No representation is made that the minimum insurance requirements are sufficient to cover the obligations of Licensee.
11.2 Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
(i) Notice of Cancellation. Each required insurance policy shall be endorsed to state that coverage shall not be cancelled except after thirty (30) days' prior written notice has been given to the City, except that ten (10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium. If a carrier will not provide the required notice of cancellation, Licensee shall provide written notice to the City of cancellation no later than five (5) business days before cancellation.
(ii) Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A: VI, unless otherwise acceptable to City.
(iii) Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At the option of City, either: Licensee shall obtain coverage to reduce or eliminate such self-insured retentions as respects City, its officers, officials, employees, and volunteers; or Licensee shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
(iv) Verification of Coverage. Prior to the Commencement Date, Licensee shall furnish City with certificates of insurance evidencing compliance with the insurance requirements above. All required endorsements shall be attached to the certificates, including additional insured, waiver of subrogation, and primary and non-contributory coverage endorsements. Licensee shall provide complete or certified copies of all required insurance policies if requested by the City.
(v) Special Risks or Circumstances. The City’s Risk Manager may modify these insurance requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
12. PROHIBITION AGAINST TRANSFERS: Licensee shall not assign, sublicense, hypothecate, or transfer this License or any interest therein directly or indirectly, by operation of law or otherwise. Any attempt to do so shall be null and void, and any assignee, sublessee, Item 5.3
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hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. The forgoing notwithstanding, Licensee may Transfer, with notice but without City's consent, to an entity (i) that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Licensee; (ii) in connection with a merger, consolidation, non-bankruptcy reorganization or government action; or (iii) in connection with the acquisition or transfer of all or substantially all of Licensee's stock or assets (each a "Permitted Transfer'').
13. SURRENDER: Upon the expiration or earlier termination of the License, Licensee shall surrender the License Area clean, free of debris and, in substantially the same condition as at the commencement of the Term, reasonable wear and tear excepted, and clear of all liens and encumbrances created by any action or inaction of Licensee. City shall not be responsible for the value, preservation or safekeeping of Licensee's property that is not removed by Licensee from the License Area. Licensee shall pay City, upon demand, the expenses and storage charges incurred for any such property. If Licensee fails to remove Licensee's property from the License Area, upon the expiration or earlier termination of the License, City may deem all or any part of Licensee's property to be abandoned and, at City's option, title to Licensee's property shall vest in City or City may dispose of Licensee's property in any manner City deems appropriate.
14. NONDISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable conduct, Licensee agrees that harassment or discrimination directed toward a City employee, or contractor, or employees, or Licensee's employee or contractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Licensee agrees that any and all violations of this provision shall constitute a material breach of this Agreement.
15. SUBMISSION OF NOTICES: All notices, demands, requests, consents, or approvals which may or are required to be given by either party to the other shall be in writing and shall be deemed given upon (i) personal delivery or transmission by facsimile or electronic mail (unless delivery occurs on a Sunday or holiday, in which case notice will be deemed given on the next-succeeding business day), or (ii) refusal of delivery during normal business hours when sent by United States Certified or Registered Mail, postage prepaid, or (iii) one business day after deposit with a reputable overnight delivery service at the party's respective Notice Address(es) set forth in the Basic License Information. Any party may from time to time designate an alternate and/or additional address by notice.
16. CONDITION OF LICENSE AREA: The License Area is delivered to Licensee by City "as is, where is," and, as such, City makes no warranty as to such facilities and property either as to their usability generally or as to their fitness for any particular purpose. Except as expressly stated in this Agreement, no promises of City to alter, remodel, repair or improve the License Area and no representation respecting the condition of the License Area have been made by City to Licensee, and City shall have no obligation to repair or maintain License Area.
17. DEFAULT:
17.1 Events of Default. The occurrence of any of the following shall constitute a "Default” by Licensee:
(i) Licensee fails to make any payment of Fees when due, if payment in full is not received by City within five (5)'days after written notice that it is past due. (ii) Licensee violates the restrictions on Transfer set forth in Article
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(iii) Licensee ceases doing business as a going concern; makes an assignment for the benefit of creditors; is adjudicated an insolvent, files a petition (or files an answer admitting the material allegations of a petition) seeking relief under any state or federal bankruptcy or other statute, law or regulation affecting creditors' rights; all or substantially all of Licensee's assets are subject to judicial seizure or attachment and are not released within sixty (60) days, or Licensee consents to or acquiesces in the appointment of a trustee, receiver or liquidator for Licensee or for all or any substantial part of Licensee's assets. (iv) Licensee fails to perform or comply with any provision of this Agreement other than those described in (i) through (iii) above, and does not fully cure such failure within five (5) business days after notice to Licensee or, if such failure cannot be cured within such five (5) business-day period, Licensee fails within such five (5) business-day period to commence, and thereafter diligently proceed with, all actions necessary to cure such failure as soon as reasonably possible but in all events within sixty (60) days of such notice.
17.2 Remedies. Upon Default by Licensee, City shall, without further notice or demand of any kind to Licensee or to any other person, in addition to any other remedy City may have under this License and at law or in equity, have the ability to immediately terminate the License and Licensee's right to use the License Area. Upon notice of any such termination, Licensee shall vacate and discontinue its use of the License Area and City may take any and all actions to enforce Licensee's obligations.
17.3 City's Right to Perform Licensee's Obligations. If Licensee is in Default of any of its non-monetary obligations under this Agreement, in addition to the other rights and remedies of City provided herein, then City may at City's option, but without any obligation to do so and without further notice to Licensee, perform any such term, provision, covenant or condition or make any such payment and, except in the case of its gross negligence or willful misconduct, City by reason of doing so shall not be liable or responsible for any loss or damage thereby sustained by Licensee. If City performs any of Licensee's obligations hereunder in accordance with this Section 17.3, the reasonable costs and expense incurred or the payments so made shall be immediately be owed by Licensee to City, and Licensee shall promptly pay to City upon demand, as Additional Fees, the full amount thereof with interest thereon from the day of payment by City the lower of ten percent (10%) per annum, or the highest rate permitted by applicable law.
17.4 Severability. This Article 17 shall be enforceable to the maximum extent such enforcement is not prohibited by applicable Law, and the unenforceability of any portion thereof shall not thereby render unenforceable any other portion.
18. WAIVER OF RELOCATION ASSISTANCE: Except in the event of a taking of the License Area by or under the threat of eminent domain, Licensee acknowledges that upon the expiration or earlier termination of the Term it will not be a displaced person or business and therefore waives any and all rights, benefits or privileges of the California Relocation Assistance Law, California Government Code Sections 7260 et seq. or under any similar state or federal law, statute or ordinance now or hereinafter in effect.
19. MISCELLANEOUS:
19.1 Entire Agreement. This Agreement, including all exhibits hereto, constitutes all of the covenants, conditions and agreements between and among the parties and shall supersede all prior correspondents, agreements and understandings, both verbal and written.
19.2 Amendments. This Agreement may be amended or modified only by a written instrument executed by City and Licensee.
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19.3 Severability. If any provision of this Agreement, or its application to any person or circumstance, is held invalid by any court, the invalidity or inapplicability of such provision shall not affect any other provision of this Agreement or the application of such provision to any other person or circumstance, and the remaining portions of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as so modified by and in response to such invalidation would be unreasonable or grossly inequitable under all of the circumstances or would frustrate the fundamental purposes of this Agreement. Without limiting the forgoing, if any applicable federal or state law prevents or precludes compliance with any material term of this Agreement, the parties shall promptly modify, amend, or suspend this Agreement, or any portions of this Agreement, to the extent necessary to comply with such provisions in a manner which preserves to the greatest extent possible the benefits to each of the parties to this Agreement before such conflict with federal or state law.
19.4 Incorporation of Exhibits and Recitals. The exhibits and recitals to this Agreement are incorporated into this Agreement by this reference.
19.5 Broker's Commissions. City and Licensee each represents and warrants to the other that neither it nor its officers or agents nor anyone acting on its behalf has dealt with any real estate broker in the negotiating or making of this License. Each party agrees to indemnify and hold harmless the other from any claim or claims, and costs and expenses, including attorneys' fees, incurred by the indemnified party in conjunction with any such claim or claims of any other broker or brokers to a commission in connection with this License as a result of the actions of the indemnifying party.
19.6 Attorneys' Fees. In the event either party to this Agreement institutes an action, arbitration or proceeding to interpret or enforce any of the terms hereof, or to obtain money damages the prevailing party shall be entitled to recover from the other, in addition to costs and judgment as ordered by the court, its reasonable attorneys' fees, together with out-of-pocket expenses.
19.7 Access by City. In addition to access provided by this License, City shall be allowed access to the License Area at all reasonable times throughout the term of this License, for any reasonable purpose upon prior written notice to Licensee. City will normally give Licensee a minimum of twenty-four (24) hours prior notice of an intention to enter the License Area, unless the entry is reasonably required on an emergency basis for safety, environmental, operations or security purposes. Licensee shall ensure that a telephone roster is maintained at all times for oncall persons representing Licensee who will be available on short notice, 24 hours a day, 365 days per year, and have authority to use all keys necessary to gain access to the License Area to facilitate entry in time of emergency. Licensee shall ensure that City has a current roster of such on-call personnel and their phone numbers. Licensee shall not change any existing locks, or attach any additional locks or similar devices to any door or window, without providing to City one set of keys there for. All keys must be returned to City at the expiration or termination of this License. licensee shall have no claim against City for exercise of its rights of access hereunder.
19.8 OFAC Certification. Licensee represents, warrants and covenants that: (a) Licensee and its principals are not acting, and will not act, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist, "Specially Designated and Blocked Person" or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and (b) Licensee acknowledges that the breach of this representation, warranty and covenant by Licensee shall be an immediate Default under the Lease.
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19.9 Certified Access Specialist Disclosure. In accordance with Civil Code Section 1938, City hereby discloses that the License Area has not undergone inspection by a Certified Access Specialist for purposes of determining whether the property has or does not meet all applicable construction related accessibility standards pursuant to Civil Code Section 55.53.
19.10 Rules and Regulations. Licensee shall faithfully observe and comply with the non-discriminatory rules and regulations attached hereto as Exhibit B and incorporated herein by this reference, as the same may be modified from time to time by City. Any additions or modifications to those rules shall be binding upon Licensee upon City's delivery of a copy to Licensee.
19.11 Further Assurances. All parties agree to cooperate fully and execute any and all supplementary documents and take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement.
19.12 Time. Time is of essence of every provision herein contained in this Agreement.
19.13 Captions. All captions and headings in this Agreement are for the purpose of reference and convenience and shall not limit or expand the provisions of this Agreement.
19.14 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. All actions or proceedings arising directly or indirectly under this Agreement shall be litigated in courts located within the County of San Mateo, State of California.
19.15 Authority. If Licensee is a corporation, limited liability company, partnership, trust, association or other entity, Licensee and each person executing this License on behalf of Licensee does hereby covenant and warrant that (a) Licensee is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Licensee has and is duly qualified to do business in California, (c) Licensee has full corporate, company, partnership, trust, association or other power and authority to enter into this License and to perform all Licensee's obligations hereunder, and (d) each person (and all of the persons if more than one signs) signing this License on behalf of Licensee is duly and validly authorized to do so. Upon execution hereof and at City's request, Licensee shall provide City with written evidence substantiating the authority of the person(s) executing this Agreement on behalf of Licensee to bind Licensee to this Agreement.
19.16 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Licensee have respectively signed and sealed this License as of the day and year first above written.
LICENSEE:
C2c Coffee Co. LLC, a California Limited
Liability Company By: __________________________
Jason Naraja
Managing Member
Date:
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CITY:
CITY OF FOSTER CITY, a
general law City
By:____________________
Stefan Chatwin
City Manager
Date:
Approved as to form:
By:___________________
Benjamin L. Stock
City Attorney
Attest:
By:________________________
Priscilla Schaus
City Clerk
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EXHIBIT A - LICENSE AREA
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EXHIBIT A-1
ILLUSTRATION OF COMMUNITY CENTER
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EXHIBIT A-2
COMMERCIAL KITCHEN- NON-EXCLUSIVE
ACCESS
Item 5.3
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EXHIBIT B
RULES AND REGULATIONS
Licensee shall faithfully observe and comply with the following Rules and Regulations.
City shall not be responsible to Licensee for the non-performance of any of said Rules and Regulations by or otherwise with respect to the acts or omissions of any other Licensees or occupants of the Community Center. In the event of any conflicts between the Rules and Regulations and other provisions of this License, the latter shall control.
1. City will set hours of operation for the Community Center and will notify Licensee of the hours. Licensee may access and operate within the License Area outside of these hours using the exterior access door to the License Area, provided Licensee has notified City of its intended hours of operation and expected uses outside of normal Community Center hours.
2. City shall have the right to control and operate the public portions of the Community Center and the public facilities, as well as facilities furnished for the common use of the Licensees, in such manner as it deems best for the benefit of all licensees generally.
3. No advertisements, pictures or signs of any sort shall be displayed on or outside the License Area without the prior written consent of City. This prohibition shall include any portable signs or vehicles placed within the parking lot, Common Area or on streets adjacent thereto for the purpose of advertising or display. City shall have the right to remove any such unapproved item without notice and at Licensee's expense. Any and all signs must be posted in compliance with the City of Foster City’s Municipal Code’s rules concerning signs.
4. Machinery, equipment and apparatus belonging to Licensee which causes noise or vibration that may be transmitted to the Common Area or other concessions within the Community Center to such a degree as to be objectionable to City or other licensees or to cause harm to the Community Center, shall be placed and maintained by Licensee, at Licensee's expense, on vibration eliminators or other devices sufficient to eliminate the transmission of such noise and vibration. Licensee shall cease using any such machinery which causes objectionable noise and vibration which cannot be sufficiently mitigated.
5. All goods, including materials used to store goods, delivered to the License Area shall be immediately moved into the License Area and shall not be left in parking or exterior loading areas overnight. Deliveries must be coordinated with City staff.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed, and no foreign substances of any kind whatsoever shall be thrown therein. The expense of the repair of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by the Licensee who, or whose employees, agents, visitors or licensees shall have caused the same.
7. Licensee shall cooperate fully with City to ensure the effective operation of the Community Center's air conditioning systems, if applicable. If Licensee shall so use the License Area that noxious or objectionable fumes, vapors and/or odors are created, then Licensee shall provide proper ventilation equipment for the discharge of such fumes, vapors and odors so that they shall not enter into the air conditioning system or be discharged into other vents or flues of the Community Center or annoy any of the other Licensees of the Community Center or adjacent properties. The design, location and installation of such equipment shall be subject to the City's approval. Soiled diapers, if any, shall be stored in a manner which mitigates odor to the fullest extent possible.
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8. All window coverings installed by Licensee and visible from the outside of the Community Center require the prior written approval of City.
9. The sashes, sash doors, skylights, windows and doors that reflect or admit light or air into the halls, passageways or other public places in the Community Center shall not be covered or obstructed by Licensee.
10. Licensee shall not overload the floor of the License Area.
11. No awnings or other projections over or around the windows or entrances of the License Area shall be installed by any Licensee without the prior written consent of City.
12. Licensee hereby acknowledges that City shall have no obligation to provide guard service or other security measures for the benefit of the License Area. Licensee hereby assumes all responsibility for the protection of Licensee and its agents, employees, contractors, invitees and guests, and the property thereof, from acts of third parties, including keeping doors locked and other means of entry to the License Area closed.
13. No auction, liquidation, fire sale, going out of business or bankruptcy sale shall be conducted in or about the License Area without the prior written consent of City.
14. No Licensee shall use or permit the use of any portion of the License Area for living quarters, sleeping apartments or lodging rooms.
15. Licensee, Licensee's agents, employees, contractors, licensees, or visitors shall not park any vehicles in driveways, service entrances, or areas posted as no parking. Licensee, Licensee's agents, employees, contractors, licensees, or visitors may make use of public parking at the Community Center just as other members of the public may, and subject to the same rules and regulations of members of the public. No parking privileges of any kind are included in the License.
16. If the License Area are or become infested with vermin as a result of the use or any misuse or neglect of the License Area by Licensee, its agents, employees, contractors, visitors or licensees, Licensee shall forthwith, at Licensee's expenses, cause the same to be exterminated from time to time to the satisfaction of City and shall employ such licensed exterminators as shall be approved in writing in advance by City.
17. Licensee shall not use the name of the Community Center for any purpose other than as the address of the business to be conducted by Licensee in the License Area, nor shall Licensee use any picture of the Community Center in its advertising, stationary or in any other manner without the prior written permission of City. City expressly reserves the right at any time to change said name without in any manner being liable to Licensee therefor.
18. Licensee, its employees and agents shall not loiter in or on the entrances, corridors, sidewalks, lobbies, courts, halls, stairways, elevators, vestibules, property around the Community Center or any Common Area for the purpose of smoking tobacco products or for any other purposes, nor in any way obstruct such areas, and shall use them only as a mean of ingress and egress from the License Area.
19. Licensee or Licensee's employees are expected to conduct themselves in a professional manner with the public and staff. The City of Foster City has a zero tolerance harassment policy. This policy prohibits harassment or discrimination because of an individual’s protected classification. Protected classification includes sex, race, religious Item 5.3
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creed, color, national origin or ancestry, physical or mental disability, medical condition, marital status, age or sexual orientation. Harassment refers to behavior which is not welcomed, is personally offensive to the victim and a reasonable person, and interferes with the individual’s ability to participate in a program, effectively carry out the duties of his/her position.
20. City reserves the right at any time to change or rescind any one or more of these Rules and Regulations, or to make such other and further reasonable Rules and Regulations as in City's judgment may from time to time be necessary for the management, safety, care and cleanliness of the License Area, Common Area and Community Center, and for the preservation of good order therein, as well as for the convenience of other occupants and Licensees thereof.
City may waive any one or more of these Rules and Regulations for the benefit of any particular Licensee, but no such waiver by City shall be construed as a waiver of such Rules and Regulations in favor of any other Licensee, nor prevent City from thereafter enforcing any such Rules and Regulations against any or all Licensees of the Community Center. Licensee shall be deemed to have read these Rules and Regulations and to have agreed to abide by them as a condition for its use of the License Area.
Item 5.3
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EXHIBIT C
LICENSEE PROPOSAL
Item 5.3
To Foster City Parks & Recreation,
Attn: Tiffany Oren, Recreation Manager
Dear Ms. Oren,
Thank you for the opportunity to submit our proposal for the Foster City Community Center Cafe. It is a privilege to be considered for a role that serves and represents the heart of the Foster City Community
Our vision, in close collaboration with the city, is to establish a “modern third space”, a destination that the diverse residents of Foster City can be proud of. We aim to serve as a communal anchor that fuels growth and connection for neighboring businesses, families, and young professionals alike.
We view this role as one of stewardship. We are committed to bringing value that extends far beyond coffee and pastries, and we look forward to helping create memorable experiences by hosting events that align with the Community Centers own mission and goals.
We look forward to the opportunity to discuss our proposal further and address any questions you may have. We would also like to formally invite you and your team to visit our flagship location in San Mateo to experience our hospitality firsthand, and meet our management team, including two of our baristas who are Foster City residents.
Thank you for your time and for the work you do for the community.
Sincerely,
Jason Naraja
Owner/Operator, Kaizen & Coffee
Item 5.3
Section 1: Operational Overview
Introduction: Kaizen & Coffee is a premier specialty coffee and culinary operator based in the Peninsula, dedicated to the philosophy of Kaizen, meaning “continuous improvement”.
Founded in 2020 during the height of the global pandemic, our organization has proven its resilience and operational excellence by successfully navigating the complexities of a full-scale buildout. From architectural planning and construction, supply chain delays, to achieving full compliance with San Mateo County health and safety standards. Our leadership team possesses a comprehensive understanding of what it takes to launch and sustain a high-performing cafe.
Years in Operation: 4 Years
Our Strategic Vision: Our mission is to bridge the gap between high-end craft beverages and approachable community spaces. We aim to transform the Foster City Community Center Cafe into a vibrant "neighborhood hub" where residents, city staff, and visitors can find connection, community, and exceptional coffee.
Relevant Experience: We currently operate a high volume brick-and-mortar location in the peninsula with a catering division that serves the greater Bay Area. ● KAIZEN & COFFEE (San Mateo, CA): Our flagship specialty cafe known for its meticulous craft and community engagement.
○ www.kaizenandcoffee.com
○ www.instagram.com/kaizenandcoffee
● CATERING BY KAIZEN: Our catering division provides a premium, mobile coffee bar service for corporate/private events, weddings, and workshops. ○ www.kaizenandcoffee.com/catering
● LUMA (Redwood City, CA): Our newest partnership located within a community-serving space. Opening May 2026
A: Leadership & Organizational Structure
Our leadership team brings decades of combined experience in hospitality management, culinary arts, and retail operations, ensuring that the Foster City Community Center Cafe is supported by a robust professional backbone.
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● Director of Operations: Jason Naraja
● General Manager: John De Guzman
● Catering: Charles Gavitt
● Manager: Tee Le
● Lead Barista Team: Lauren Fairbank, Gabe Karam, Xenia Jenssen Section 2: Cafe concept & Operating approach
A. Concept Philosophy: The Modern “Third Space”
Our concept for the Foster City Community Center is rooted in the philosophy of Kaizen “continuous improvement”. We aim to create a “Third Space” that feels as welcoming to a senior citizen reading the morning news as it does to a young professional on a laptop or a family visiting the center for weekend activities.
● Atmosphere: Approachable, warm hospitality to every visitor balanced with the technical specialty coffee excellence in the background.
● Core Values: Generational inclusivity, community stewardship, and technical precision Proposed Menu Framework:
● Espresso Program: A full-service espresso bar featuring traditional and modern favorites.
● World-Class Coffee: A rotating menu from some of the best roasters around the world, while simultaneously highlighting local favorites right here in the Bay Area. ● Tea & Botanicals Program: A curated selection of Single-cultivar matcha and organic whole-leaf tea from Rishi Tea, for those seeking caffeine-free or lower-caffeine options ● Signature Program: A rotating menu of signature lattes, featuring house-made syrups and sauces, including non-caffeinated options
● Seasonal Grab-and-Go:
○ Panini sandwiches
○ Onigiri: Japanese rice balls
○ Rice bowls
● Fresh pastries and light, healthy snacks:
○ Amour Bakery: Asian inspired, with elevated classics
● Ice Cream: Creative flavors sold by the pint
Service Style:
Efficiency Meets Hospitality
We utilize a Hybrid Service Model to respect the diverse needs of Community Center visitors:
● The “Express” Lane: High-efficiency service and mobile ordering for commuters and staff on tight schedules.
● Table side service: For guests who want to enjoy their experience at the cafe, especially seniors or those with limited mobility, our staff is trained to provide “at-table” delivery.
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Proposed Hours of Operation:
To maximize the utility of the Community Center, we propose hours that align with peak facility usage:
● Daily: 7:00 AM - 5:00 PM
○ Serving the “Morning Rush” and Center staffing during the week ○ Supporting weekend community events and family gatherings Approach to a Diverse, Multi-Generational Community:
Serving a multi-generational community requires a “No Barrier” approach:
● Youth & Students: Providing reliable high-speed internet, and a modern “Instagrammable” beverage menu (Matcha, Iced lattes).
● Seniors: Offering “Classic” coffee and pastry options at an approachable price point, with clear menu signage, and maintaining a comfortable music volume level. ● Families: Ensuring all syrups and sauces are house made with natural ingredients, providing caffeine-free “kid-friendly” options (Steamers, ice cream, healthy snacks) ● Community Integration: We intend to collaborate with Foster City departments to host both community events, such as Foster City Run Club’s or vendor pop-up’s, and small-scale workshops, such as latte art or tastings.
B. Our operational approach is built on four pillars:
1. The Philosophy of Kaizen
We are constantly refining our systems and offerings to meet the specific needs for each cafe to better serve our local communities. Whether adjusting hours for community events or updating the menu based on feedback, we are always committed to changing for the better.
2. Civic & Community Integration
We view the cafe not just as a vendor, but as a community hub that elevates other local artisans. We prioritize supporting neighboring businesses and plan to incorporate our partners:
● River Phin Roasters (Foster City): Our primary local coffee partner. Highlighting a Foster City-based roaster.
● Amour Bakery (San Mateo): Our source for Asian-inspired pastries and elevated classics. Delivered fresh each morning.
● Rounds (San Mateo): Providing artisanal, small-batch cookies with creative flavors.
3. Internal Hospitality & Workforce Development
Excellence at the counter begins with the excellence behind it. We’re utilizing a curated hiring process and our "training with intention" program focused on internal hospitality to turn ordinary interactions extraordinary. By providing our team with competitive wages and leadership development, we ensure that the staff serving the Foster City community are professional, motivated, and highly trained ambassadors.
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4. Quality-Driven Standards
Quality is our baseline. We take no shortcuts in our menu development, sourcing through local vendors and distributors to ensure quality and freshness. By making our sauces, syrups, and food offerings in-house, we provide a level of culinary integrity that elevates the daily experience of every visitor to the Community Center.
Section 3: Staffing Plan & Organizational Structure
Role Primary Responsibilities
General Manager /
Director of Operations
Oversees high-level strategy, financial reporting, and long-term community partnerships.
Manager Responsible for day-to-day floor operations, staff scheduling, inventory management, and maintaining health & safety compliance.
Baristas Focused on beverage quality control, engagement with guests, and maintaining a clean, welcoming environment.
Culinary / Prep Handles the preparation of house made syrups, fresh food items, and ensuring recipe consistency.
A. Personnel Qualifications
Our team is built on a foundation of professional experience and specialized industry knowledge. Key qualifications include:
● Operational Longevity: Leadership brings over 25 years of experience in the specialty coffee and hospitality industry
● Technical Expertise: Staff are trained in precision brewing techniques and workflow efficiency
● Digital Operations Fluency: Proficiency in modern restaurant management software, including POS systems (TOAST), labor management systems (Hotschedules), and delivery platforms (UberEats, Doordash)
● Safety & Compliance: All management and culinary staff hold current Food Handler or Food Manager Certifications, ensuring strict adherence to county and state, health department standards.
B. Strategy for Peak Periods and Special Events
Our operational model is engineered for high-volume consistency, ensuring that the quality of service remains even during peak Community Center activities.
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● Mobile Catering by Kaizen: Our catering division is designed for deployment, allowing us to effectively scale operations to meet the demands of community events. ● High-Volume Expertise: We have experience managing high-volume environments, both with catering large events and at our flagship, Kaizen & Coffee, where we average over 300+ daily orders. Majority of orders coming between 9am - 11am and 1pm - 3pm Section 4: Health & Safety Plan
A. Food Safety & Handling
We adhere to the highest industry standards for food preparation and storage to ensure a safe experience for every customer.
● Hazard Analysis & Critical Control Points (HAACP): We implement a strict HACCP-based approach to monitor temperature-sensitive items, specifically for milk-based products and prepared culinary ingredients, including syrups. ● Certified Oversight: At least one member of leadership with a Food Manager Certification is present daily to oversee compliance.
● Precision Measurements: All house-made syrups and food are prepared using gram-scale recipes to ensure consistency and safety in batch production.
B. Sanitation Schedule & Cleaning
A “Clean-As-You-Go” philosophy is engrained into our barista and culinary training. ● Daily Cleaning: Post-operation breakdown includes completing all cleaning and sanitation checklists.
● Hourly Sanitation: A rotating checklist for high-touch areas, including condiment bars, POS touchscreens, tables, and seating areas
● Specialized Equipment Care: Maintenance of all precision tools are done at a higher frequency than standard maintenance schedule to ensure quality control and no workflow issues.
● Weekly Deep clean: Once a week we partner with All Janitorial Services, a peninsula based cleaning service, for a full wall-to-wall deep clean covering all interior and exterior surfaces and fixtures.
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C. Sexual Harassment & Workplace Safety
We maintain a zero-tolerance policy for harassment to protect our team and the community we serve.
● Mandatory Training: All staff must complete California-compliant sexual harassment prevention training (SB 1343) within 30 days of hire, with bi-annual refreshers. ● Reporting Structure: An open door policy with clear, confidential protocols are in place for reporting any workplace concerns directly to: Management, General Manager, Director of Operations, or Business owners themselves.
● Inclusivity Training: Staff are trained to foster a safe, inclusive environment for the diverse demographics of Foster City.
D. Compliance & Local Regulations
Our operations are designed to meet or exceed San Mateo County Environmental Health Services requirements.
● Health Dept. Readiness: We maintain a logbook to ensure we are prepared for health inspections.
● Facility Specifications: All equipment is UL listed, NSF Certified and installed by professional technicians to meet building code standards. ● Waste Management: Proper separation of disposal, recycling, and composting, in accordance with city-mandated environmental sustainability goals.
Area Frequency Responsibility
Temp logs Twice a day Shift leads
Surface Sanitizing Every hour All staff
Safety Training Every 6 months Management
Deep Equipment Clean Daily Closing team
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Section 5: Facility Use & Asset Management Plan
Operating within a municipal building like the Foster City Community Center requires a stewardship mindset. Our goal is to maintain the cafe space in a condition that exceeds baseline expectations, ensuring that our presence adds value to the facility without impacting the city's maintenance burden.
A. Physical Space Philosophy: Safe & Clean
We view the cafe as a high-visibility extension of the Community Center. Our approach to the physical environment focuses on proactive safety.
● Licensed Professional Installation: All specialized equipment is installed exclusively by licensed and insured technicians. This ensures all electrical and plumbing connections are installed and operating at building code standards. ● ADA Compliance: Furniture and equipment layouts are strictly maintained to ensure clear pathways for all patrons, including those using mobility aids, in accordance with ADA standards.
● Slip & Fall Prevention: Slip resistant floor mats are used in all "wet" zones (behind the bar and near sinks). We implement a "Dry Floor Policy," where any spills are marked and remediated within 60 seconds. Employees are also required to wear non-slip footwear. ● Risk Mitigation: Our staff training includes prevention for industry-common risks with proper technique and handling hot beverages.
● Workers’ Compensation & Labor Compliance: We are fully committed to the protection and well-being of our team, in compliance with California Labor Code 3700, all employees are covered to provide medical care and wage replacement in the event of a workplace-related injury or illness.
● Liability & Insurance: We are covered by comprehensive liability insurance, and will maintain a COI / Certificate of Insurance with the Community Center listed as a Certificate Holder.
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B. Daily Maintenance Routines
To ensure the longevity of the facility’s finishes and infrastructure, we follow a rigorous three-tier maintenance schedule:
Frequency Task Focus Area
Opening Visual Safety Sweep Inspecting for electrical hazards, leaks, or debris.
Inter-Shift High-Touch
Sanitization
Sanitizing counters, POS terminals, and
common-area tables.
Closing Surface Clean Non-abrasive cleaning of all stainless steel, tiles, and stone.
Weekly Detail Maintenance Polishing fixtures, cleaning floor drains, behind appliances, and dusting high ledges, walls, ceiling
C. Preventing Facility Wear & Tear
We take specific measures to protect the Community Center’s long-term assets:
● Flooring Protection: All heavy equipment (grinders, espresso machines, refrigeration etc.) is fitted with non-marking industrial rubber feet or casters to prevent scratches and/or "pitting" on facility floors.
● Drainage & Plumbing Care: Our maintenance schedule includes daily high-temperature flushing to prevent coffee or milk solids from accumulating. This is supplemented by a weekly application of natural enzyme treatment that is a non-corrosive alternative that preserves the integrity of the plumbing system. ● Surface Integrity: We use only non-corrosive, pH-neutral cleaning agents that are safe for commercial surfaces, preventing the "clouding" or erosion of stone and laminate finishes.
● Wall & Equipment Guarding: Strategic placement of equipment ensures no repeated contact with walls or cabinetry, preventing any scuffs or excessive wear.
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D. Technical Infrastructure Stewardship
We monitor the facility's "vitals" daily and work with contractors/architects directly to ensure the space is outfitted to match our equipment specifications, avoiding future issues from the start:
● Electrical Load Management: Dedicated outlets for high-draw appliances and equipment to avoid tripping facility breakers and fire hazards. ● Plumbing Health: Use of commercial water filtration not just for coffee quality, but to prevent scale buildup in the building’s pipes and drains. ● Filter Maintenance: We maintain an internal schedule for cleaning and replacing all filters, including refrigeration condensers. This extends equipment lifespan, and minimizes the strain on the facility’s HVAC systems.
Section 6: Basic financial overview
A. Basic Revenue and Expense Assumptions
Our financial approach for the Foster City Community Center Cafe is built on a “shared success” philosophy.
● Revenue Forecast:
○ Year 1: $750,000 (Launch and community integration)
○ Year 2: $1,250,000 (Established operations and increased foot traffic) ○ Year 3: $1,400,000 (Optimized growth and community loyalty) ● Expense Management:
○ TOAST POS system for sales tracking
○ Quickbooks for book keeping
B. Proposed compensation model
Our proposed model is designed to align our success with Foster City. By focusing on gross sales, we eliminate the burden of auditing expenses, allowing us to collaborate on growth and cafe success.
● Lease Strategy: We propose a percentage based rent set at 4% of gross revenue rather than net profit. This avoids the complexities of tracking and agreeing upon various business expenses.
● Base Rent Guarantee: To provide the City with consistent monthly revenue, we’d like to offer a guaranteed base rent of $3000 (or 4% of gross revenue, whichever is more). This acts as a financial floor, ensuring the City receives a stable baseline throughout the term of the lease.
○ $3.67 x 818sf for 3k baseline
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● Rent Projections: Based on our forecast, this structure would result in:
○ Year 1: $36,000 annual / baseline $3000 per month
○ Year 2, $50,000 annual / approx. $4,167 per month
○ Year 3, $60,000 annual / approx. $5,000 per month
● Rent Start Date: We propose that rent payments begin on the day the facility opens to the public. This allows us to focus our initial capital on the build-out, hiring/training, and operational setup required to launch.
C. Pricing approach & Sustainability
Our pricing strategy is built on a foundation for sustainability and financial health. ● Margin Targets & Cost Tracking: We actively track price fluctuations across our entire supply chain to maintain a 75% target margin on our house made and specialty grade products. This margin is essential to accounting for cost of goods, labor intensive preparation, and operational expenses.
● Support for Local Vendors: For select items sourced from local vendors such as fresh pastries or artisanal snacks, we adjust our model to accept margins closer to 30–50%.
This allows us to support the local economy and provide fresh, diverse options without compromising on quality or community value.
● Balanced Menu Accessibility: Despite these margins, we maintain a "no-barrier" approach for the community. We offer espresso based beverages and organic tea options at accessible price points for seniors and students, while our signature beverages and speciality grade coffee cater to enthusiasts seeking a high-end experience.
Section 7: Professional References & Operational Success Our experience operating our flagship location and catering division demonstrates our ability to maintain high standards of quality, hospitality, and community engagement.
A. Operational Success
We currently operate a high-performing cafe with a growing catering department that serves as benchmarks for our proposed Foster City Community Center cafe. ● Kaizen & Coffee (San Mateo): Opened in 2023, this location has become a staple of the peninsula (and Bay Area) craft coffee scene over the past few years. ○ Accolades:
■ Voted "Best Coffeehouse" in the 2025 Best of San Mateo Area awards ■ Featured by EaterSF as one of the best cafes on the Peninsula. ■ Featured by SF Chronicle as one of the best cafes in the Bay Area. ○ Volume & Efficiency:
■ Our 950sf flagship location sees an average of 300+ orders per day Item 5.3
■ 4.8-star customer satisfaction on Google, while maintaining a friendly, modern, and clean environment.
● Catering by Kaizen: Our mobile division has continued to earn the trust and business from companies such as:
○ FIGMA (San Francisco)
○ Poshmark (Redwood Shores)
○ Stanford (Palo Alto)
○ WeWork (Mountain View)
○ New York Life (San Mateo)
○ Roblox (San Mateo)
B. Training & Compliance
Our operations are backed by a culture of continuous improvement and professional standards. ● San Mateo County Health Compliance: Passed each health inspection ● Staff Development: Our training program, led by our Director of Operations and General Manager, includes:
○ SCA Standards: Technical Barista training
○ Manager-Level Food Safety: All leadership holds current California Food Manager certifications.
○ Hospitality Ethics: Specialized training in inclusive service for diverse populations.
C. Professional References
Reference Name Role / Organization Contact Relationship Edik Sasounian Owner / San Mateo
Florist & Gifts
Landlord for Kaizen and Coffee Flagship
Derik Scott Head Pastor / Rise City
Church
Landlord for our sister cafe, LUMA in
Redwood City
Anthony Ragler Director of Sales / Black
& White Roasters
Our first B2B partner, Black & White
Roasters.
Item 5.3
DATE: September 21, 2026
TO: Mayor and Members of the City Council
VIA: Stefan Chatwin, City Manager
Marlene Subhashini, Assistant City Manager
Sofia Mangalam, Deputy City Manager
FROM: Thai-Chau Le, Interim Community Development Director DEPARTMENT: Community Development
SUBJECT: Establish a List of Qualified Consultants to Provide Economic and Fiscal Analysis for Professional On-Call Services for Planning Division and Authorization to Execute Master Services Agreements with Each Consultant
RECOMMENDATION
It is recommended that the City Council: (1) adopt the attached Resolution (Attachment 1) approving the established list of five (5) qualified consultants to provide economic and fiscal analysis for professional on-call services for the Planning Division of the Community Development Department (CDD); (2) authorize the Mayor to execute a Master Professional Services Agreement with each consultant on the list with no compensation maximum for a term of five (5) years (Attachment #2); and (3) find the approval of the on-call list and Master Professional Services Agreements exempt under CEQA pursuant to CEQA Guidelines section 15061(b)(3).
EXECUTIVE SUMMARY
Community Development Department (CDD) is committed to planning, maintaining, and improving the quality of life and public safety of Foster City in keeping with the vision of the City Council in the General Plan and other measures that reflect the City’s heritage as a Master Planned community. CDD is comprised of the Planning/Code Enforcement, Building, Housing and Sustainability divisions. The Planning/Code Enforcement Division Item 5.4
(Division) is responsible for long-term planning regarding the growth and development of the City, for reviewing and processing applications for all land use and development proposals, and for maintaining the appearance of the community.
The Division receives and reviews development applications and undertakes City initiatives throughout the year that may require specialized economic and fiscal analysis. These services may include economic, financial, and fiscal analyses for development projects as well as nexus study for specific fees. Qualified consultants may be needed to facilitate, lead, and/or assist Planning staff with these analyses.
As part of the City’s procurement policy for on-boarding consultants, staff has to conduct a Request for Proposals (RFP) process, which can be time consuming and may affect the timely initiation of projects. Establishing a pre-qualified list of economic and fiscal analysis consultants would streamline the procurement process by providing staff with timely access to qualified consultants and facilitating the efficient completion of projects and initiatives.
On June 22, 2026, the City Manager authorized staff to release a Request for Qualifications (RFQ) to establish a list of qualified consultants to provide economic and fiscal analysis services for development applications and long-range planning projects on an as-needed basis. Upon review of the responses, Staff has selected the five (5) firms to be included in the established list of qualified consultants.
Staff recommends that the City Council approve the established list of five (5) qualified consultants to provide economic and fiscal analysis for professional on-call services and authorizes the Mayor to execute Master Services Agreement with each consultant with no compensation maximum for a term of five (5) years.
The authorization of master agreement does not award any work to any of these firms; it establishes the firms as approved resources from which to seek professional services as needs are identified.
BACKGROUND/ANALYSIS
The Planning Division receives and reviews development applications and undertakes City-initiated projects and planning initiatives throughout the year, some of which require specialized economic and fiscal analysis. These services may include economic, financial, and fiscal analysis for development projects or a nexus study for specific fees. When the Planning Division receives these projects, staff develop and releases a project-specific RFP to procure the services. This process lengthens the time required to secure consultant services, which can negatively impact applicants and project review timelines. It can also limit responses from qualified consultants when the scope of work is small or when requests are released during periods of high consultant demand. Individual requests also require additional staff time to advertise the opportunity, address questions, and review proposals, many of which may only vary slightly from one another.
Establishing a list of qualified consultants and having master agreements with the selected consultants are an efficient tool to provide technical staff support and reduce Item 5.4
the time required to identify qualified firms while adhering to City/District Purchasing Policy. This enables the City to respond quickly to needs by utilizing a consulting firm’s services on an as-needed basis for a specific activity. These services are temporary and obtained only for the length of time needed to complete the analysis and/or study required for a project.
On June 22, 2026, staff requested authorization from the City Manager to issue an RFQ to establish a list of qualified consultants for economic and fiscal analysis for cityinitiated or privately initiated projects and initiatives. Upon authorization from the City Manager, City staff issued an RFQ on June 26, 2026, with a due date for proposals/response by July 13, 2026, which was later extended to July 20, 2026.
The RFQ was advertised in following ways soliciting responses:
1. Sent to consulting firms via email – June 26,2026
2. Posted on City’s RFP/RFQ web-page – June 26, 2026
Staff received a total of nine (9) responses to the RFQ, including responses from DTA, Berkeley Economic Advising and Research, LLC., Willdan Financial Services, Morant McLeod, RSG Solutions, Kosmont Companies, BAE Urban Economics, Harris and Associates, and Economic and Planning Systems. Staff evaluated the proposals based on the point system as follows:
A statement demonstrating that the Proposer understands the scope of work required (20 points).
Billing Structure (15 points).
Relevant Experience (25 points).
Key Team Member Summary (20 points).
References (15 points).
Acknowledgment of the Memorandum of Understanding (5 points).
The maximum number of points that any firm can score is 100 points. Upon evaluation, staff selected firms that scored 90 or higher for inclusion in the established list.
Consultant Firm
Total
Score
1 DTA 92
2 Willdan 93
3 BAE 97
4 Harris And Associates 91
5 Economic and Planning Systems 91
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The maximum number of points that any firm can score is 100 points. Upon evaluation, staff selected firms that scored 90 or higher for inclusion in the established list.
Scope of Work
The Consultant may be asked to perform the following actions for all private initiated projects, city’s projects, including but not limited to, the following:
• Conduct economic, financial and fiscal impact analysis. This could include:
o Fiscal, Financial and Economic Impact Analysis
o Feasibility Analysis
o Development Cost Analysis
o Cost-benefit analysis
• Prepare Development Impact Fee and Nexus Studies for future Municipal Code updates or State requirements
• Conduct economic and fiscal analysis associated with citywide policies • Provide peer review of economic, financial and fiscal analysis prepared by project applicants or other consultants
• Facilitate and provide support for special projects as authorized by the City Council.
Use of consultants and associated costs
When there is a specific project needing these services, staff will draft a project-specific Scope of Work (SOW) outlining the deliverables, timelines and project constraints. The SOW will be distributed to the consultants on the established list, requesting a proposal and cost estimate.
Subsequently, staff will review the proposals received, select the consultant and prepare a Task Order with the selected consultant. The Task Order would identify the scope of work and the maximum compensation for the specific services. Consistent with the City’s Purchasing Policy, the project-specific Task Order over $50,000 will be presented to the City Council for approval prior to authorizing the work to proceed.
A private development project proposal would be 100% cost recovery, paid for by the applicant through a pass-through agreement planning fee deposit account. The consultant would be paid from funds in the applicant’s deposit account and the City would charge the standard 15% administrative fees as established in City’s Master Fee Schedule for managing the work performed by the consultant identified in the Task Order.
For a City-initiated project, Task Order over $50,000 will be presented for the City Council’s approval.
The list and agreements, as stated in Attachments 1 and 2, will be for a duration of five (5) years. Any renewal or extension requests will be brought back to City Council for consideration.
Item 5.4
CALIFORNIA ENVIRONMENTAL QUALITY ACT
The formation of the list of qualified consultants is exempt per CEQA Guideline Section 15061(b)(3), Common Sense Exemption (14 Cal. Code Regs. § 15061(b)(3)) because it can be seen with certainty that there is no possibility that this action may have a significant effect on the environment.
FISCAL IMPACT
There is no fiscal impact associated with establishing a list of qualified consultants and entering into Master Agreements with the consultant. However, for privately initiated projects, consultant costs will be paid from funds deposited by the project applicant. For City-initiated projects, consultant costs will be paid from the applicable City project funds, with Task Orders exceeding $50,000 also requiring City Council approval
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREA
Smart Planning, Development, and the Local Economy
ATTACHMENTS:
Attachment 1 – Resolution
Attachment 2 – Exhibit A – Master Services Agreements
Item 5.4
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FOSTER CITY APPROVING THE ESTABLISHED LIST OF FIVE (5) QUALIFIED CONSULTANTS TO
PROVIDE ECONOMIC AND FISCAL ANALYSIS FOR PROFESSIONAL ON-CALL
SERVICES FOR PLANNING DIVISION OF THE COMMUNITY DEVELOPMENT
DEPARTMENT (CDD), AUTHORIZING THE MAYOR TO EXECUTE A MASTER
PROFESSIONAL SERVICES AGREEMENT WITH EACH CONSULTANT ON THE LIST (DTA, WILLDAN FINANCIAL SERVICES, BAE URBAN ECONOMICS, HARRIS AND
ASSOCIATES, AND ECONOMIC AND PLANNING SYSTEMS) WITH NO
COMPENSATION MAXIMUM FOR A TERM OF FIVE (5) YEARS, AND FINDING THE
APPROVAL OF THE ON-CALL LIST AND MASTER PROFESSIONAL SERVICES
AGREEMENTS EXEMPT UNDER CEQA PURSUANT TO CEQA GUIDELINES SECTION 15061(B)(3)
CITY OF FOSTER CITY
WHEREAS, Community Development Department (CDD) is committed to planning, maintaining, and improving the quality of life and public safety of Foster City in keeping with the vision of the City Council in the General Plan and other measures that reflect the City’s heritage as a Master Planned community; and WHEREAS, CDD receives and reviews development application and undertakes City initiatives throughout the year that may require specialized economic and fiscal analysis; and
WHEREAS, the selection process of a consultant for economic and fiscal analysis can be time consuming and may affect timely initiation of project; and WHEREAS, the pre-qualification of economic and fiscal analysis consultants by having an established list would assist staff in completing economic and fiscal analysis reviews and documentation in a timely and efficient manner; and WHEREAS, on June 22, 2026, the City Manager authorized staff to release a Request for Qualifications (RFQ) to establish a list of qualified economic and fiscal analysis consultants to provide services for development applications and long-range planning projects; and
WHEREAS, upon authorization from the City Manager of the City of Foster City, staff issued an RFQ on June 26, 2026; and
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WHEREAS, the City received a total of nine (9) responses and Statements of Qualifications (SOQs) from the consulting firms in response to the RFQ; and WHEREAS, the nine (9) responded include DTA, Berkeley Economic Advising and Research, LLC., Willdan Financial Services, Morant McLeod, RSG Solutions, Kosmont Companies, BAE Urban Economics, Harris and Associates, and Economic and Planning Systems; an
WHEREAS, upon review of the SOQs, staff has established the list of five (5) qualified Environmental consultants, including DTA, Willdan Financial Services, BAE Urban Economics, Harris and Associates, and Economic and Planning Systems; and WHEREAS, the five (5) consultants selected and identified herein provided an extensive proposal, expressing a clear understanding of the scope of work and most closely aligned to the deliverables desired by the City for this position; in addition to demonstrating its capabilities to meet the City's expectations for such services and was selected from the list to enter into an agreement; and
WHEREAS, the City’s Purchasing Policy contemplates that the City Council will approve each request for proposal for services over $50,000 and that the City Council would approve the award of the contract for those services; and WHEREAS, staff recommends that the City Council enter into a Master Professional Services Agreement with DTA, Willdan Financial Services, BAE Urban Economics, Harris and Associates, and Economic and Planning Systems with no limitation on the amount of compensation; and
WHEREAS, for any project that requires environmental review, staff would bring any Task Order over $50,000 to the City Council for approval before issuing the Task Order.
NOW, THEREFORE, BE IT RESOLVED, that the City Council does hereby find that the approval of the on-call list and Master Professional Services Agreements are exempt per CEQA Guideline Section 15061(b)(3), Common Sense Exemption (14 Cal.
Code Regs. § 15061(b)(3)) because it can be seen with certainty that there is no possibility that this action may have a significant effect on the environment.
BE IT FURTHER RESOLVED, the City Council hereby approves the establishment of the following list of qualified environmental consultants to provide project-based professional on-call services for economic and fiscal analysis reviews for the Planning Division of the CDD: DTA, Willdan Financial Services, BAE Urban Economics, Harris and Associates, and Economic and Planning Systems.
BE IT FURTHER RESOLVED, that the City Council hereby authorizes the Mayor to execute a Master Professional Services Agreement with DTA, Willdan Financial Services, BAE Urban Economics, Harris and Associates, and Economic and Planning Systems with no limitation on the amount of compensation for a term of five years.
Item 5.4
PASSED AND ADOPTED as a resolution of City Council of the City of Foster City at the regular meeting held on the 21st day of September 2026, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ART KIESEL, MAYOR
ATTEST:
PRISCILLA SCHAUS, CITY CLERK
Item 5.4
1 MASTER PROFESSIONAL SERVICES AGREEMENT
FOR
ECONOMIC AND FISCAL ANALYSIS SERVICES
This Agreement is made and entered into as of the 22nd day of September, 2026 by and between the City of Foster City hereinafter called "CITY" and BAE Urban Economics hereinafter called "CONSULTANT".
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
WHEREAS, CITY desires to retain CONSULTANT to provide professional economic and fiscal analysis services and related consulting services; WHEREAS, It is anticipated that, as a need arises for CONSULTANT to provide services, CITY will issue Task Orders to CONSULTANT (in a form substantially similar to that set forth in Exhibit “A,” attached hereto and incorporated by reference which more particularly describes the scope of services to be performed);
WHEREAS, In reliance upon CONSULTANT's documentation of its qualifications, the CITY finds that CONSULTANT has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested services.
WHEREAS, That CONSULTANT is specially trained, experienced and competent to perform and has agreed to provide such services;
NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties hereby agree as follows:
TERMS AND CONDITIONS
1. Services. The services to be performed by CONSULTANT under this Agreement shall include those services set forth in each Task Order and Exhibit “B,” Scope of Services, which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein.
Performance of the work specified in said Exhibit B and each Task Order is hereby made an obligation of CONSULTANT under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
Where in conflict, the terms of this Agreement supersede and prevail over any terms set forth in Exhibit B and in each Task Order.
Item 5.4
2 1. Term; Termination.
(a) The term of this Agreement shall commence upon the date hereinabove written and shall expire upon completion of performance of services hereunder by CONSULTANT. Initial contract period shall be from September 22, 2026 and expires on September 22, 2031 Renewal shall be by mutual consent of CONSULTANT AND CITY as approved by the City Council Board. CONSULTANT shall not commence Services or work until a Notice to Proceed is issued by CITY.
(b) Notwithstanding the provisions of (a) above, CITY may with or without cause, direct CONSULTANT to suspend, delay or interrupt Services, in whole or in part, for such periods of time as CITY may determine in its sole discretion.
(c) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for default, should CONSULTANT commit a material breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days of the date of CITY’s written notice to CONSULTANT demanding such cure, in which case CONSULTANT shall be liable to CITY for direct damages actually incurred by CITY to the extent caused by CONSULTANT’s uncured material breach. (d) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for convenience, by providing no less than seven (7) days’ written notice, whenever CITY determines that such termination is in CITY’s best interests, in which case CONSULTANT shall be entitled to recover its costs expended up to the termination date plus reasonable profit thereon to the termination date as this Agreement would otherwise provide, but may recover no other cost, damage or expense.
CONSULTANT shall continue its work throughout the course of any dispute, and CONSULTANT’s failure to continue work during a dispute shall be a material breach of this Agreement.
2. Compensation; Expenses; Payment. CITY shall compensate CONSULTANT for all services performed by CONSULTANT hereunder in an amount based upon CONSULTANT’s hourly rates during the time of the performance of said services. A copy of CONSULTANT’s hourly rates for which services hereunder shall be performed are set forth in CONSULTANT’s fee schedule marked Exhibit “C” hereof, attached hereto and by this reference incorporated herein.
Notwithstanding the foregoing, the combined total of compensation and reimbursement of costs payable hereunder shall not exceed the total amount identified in all Task Orders issued by the City against this agreement. The Consultant shall only be paid for services performed under this Agreement to the extent authorized by written Task Order. No Item 5.4
3 overhead or other expenses can be recovered for interim periods when the Consultant’s services are not utilized by the City. Invoices for amounts in excess of each Task Order shall not be paid unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by CITY’s Manager (for contracts less than $50,000) or CITY Board (for contracts $50,000 or more) evidenced by motion duly made and carried and a written contract amendment having been executed.
Compensation and reimbursement of costs and expenses hereunder shall be payable upon monthly billing therefor by CONSULTANT to CITY, which billing shall include an itemized statement, briefly describing by task and labor category or cost/expense items billed. Final payment will be made when all Services required under this Agreement have been completed to the reasonable satisfaction of CITY including, without limitation, CONSULTANT's transmittal of all deliverables to CITY required by EXHIBIT B and each Task Order.
CITY shall not incur any charges under this Agreement, nor shall any payments become due to CONSULTANT for any payment period on the Project, until CITY receives all deliverables required under Exhibit B and each Task Order, SCOPE OF WORK AND SCHEDULE, for the payment period (if any) and reasonably accepts such deliverables as meeting the requirements of this Agreement, provided, however, that CONSULTANT shall be entitled to monthly payment for Services properly performed and costs incurred during the applicable billing period, whether or not such Services result in a completed deliverable during that billing period. CITY shall not unreasonably withhold, condition, or delay acceptance of deliverables or payment of undisputed amounts.
In cases where CONSULTANT has partially completed one or more deliverables due during a payment period, and if CONSULTANT demonstrates diligent progress thereon, then CITY may make a partial progress payment based upon percentage completion of the partially completed deliverables and diligent progress but taking into account any adverse impacts upon CITY. CITY shall not be liable for, and CONSULTANT shall not be entitled to, any payment for Services performed before this Agreement's execution.
CITY will not withhold any Federal or State income taxes or Social Security tax from any payments made by CITY to CONSULTANT under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums is the sole responsibility of CONSULTANT.
CITY has no responsibility or liability for payment of CONSULTANT’s taxes or assessments.
Item 5.4
4 4. Performance of Services. No work shall be performed under this Agreement except to the extent the CONSULTANT receives a Task Order from the CITY’s Authorized Representative. The CITY will request proposals from the CONSULTANT for each Task Order when services are needed.
CONSULTANT shall respond with a scope and cost proposal in a reasonably prompt manner, no later than fifteen (15) calendar days after CITY’s request. Such proposal shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefor, the time of performance thereof, and such other matters as the parties deem appropriate for the accomplishment of such services. Upon the approval of the terms of the proposal by CITY’s Manager (for contracts less than $50,000) or CITY Council (for contracts $50,000 or more) by motion duly made and carried, the CITY's Authorized Representative shall issue a Task Order against this agreement. CONSULTANT shall commence performance and shall complete all required services no later than the dates set forth in accordance with the approved Task Order. Except to the extent modified by written amendment, all other terms and conditions of this Agreement shall be deemed incorporated in each such Task Order.
5. Records and Audit. CONSULTANT shall keep and maintain accurate records of all time expended and costs and expenses incurred relating to services to be performed by CONSULTANT hereunder. Said records shall be available to CITY for review and copying during regular business hours at CONSULTANT’s place of business or as otherwise agreed upon by the parties.
CONSULTANT shall prepare and maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of four (4) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photo static, photographing and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof.
Any authorized representative of CITY shall have access to any writings as defined above for the purposes of making audit, evaluation, examination, excerpts and transcripts during the period such records are to be maintained by CONSULTANT. Further, CITY has the right at all reasonable times to audit, inspect or otherwise evaluate the services and work performed or being performed under this Agreement.
Item 5.4
5 6. Authorization. This Agreement becomes effective when endorsed by both parties in the space provided below.
7. Reliance on Professional Skill of CONSULTANT. CONSULTANT represents that it has the necessary professional skills to perform the services required and the CITY shall rely on such skills of the CONSULTANT to do and perform the work. In performing services hereunder CONSULTANT shall adhere to the standards generally prevailing for the performance of expert consulting services similar to those to be performed by CONSULTANT hereunder.
CONSULTANT represents that it has reviewed Exhibit B and that in its professional judgment the Services to be performed under this Agreement can be performed for a fee within the maximum amount set forth in the Compensation Schedule established in Exhibit B.
CONSULTANT represents that it possesses all necessary training, licenses, certificates, and permits required by the federal, state, CITY or municipal governments to perform the Services. Such licenses, certificates and permits must be valid at the time CONSULTANT enters into this Agreement and must be maintained during the term of this Agreement in full force and effect. Licenses, certificates and permits may include but are not limited to driver’s licenses, professional licenses or certificates and business licenses. Such licenses, certificates and permits will be procured and maintained in force by CONSULTANT at no expense to CITY.
CONSULTANT represents that its performance of the Services will conform to the standards of practice of a professional having experience and expertise in performing professional services of like nature and complexity of the Services working on similar, successfully completed projects.
The granting of any progress payment by CITY, or the receipt thereof by CONSULTANT, or any inspection, review, approval or oral statement by any representative of CITY or any other governmental entity, shall in no way waive or limit the obligations in this Paragraph 7 or lessen the liability of CONSULTANT for unsatisfactory Services, including but not limited to cases where the defective or below standard Services may not have been apparent or detected at the time of such payment, inspection, review or approval.
CONSULTANT’s services are advisory and technical in nature. CITY retains sole responsibility for legal determinations, policy decisions, public notices, hearings, adoption of fees or ordinances, and implementation of any fiscal, nexus, or economic analysis. CONSULTANT does not provide legal advice.
Item 5.4
6 8. Documents. All documents, plans, drawings, renderings, and other papers, or copies thereof, as finally rendered, prepared by CONSULTANT pursuant to the terms of this Agreement, shall, upon preparation and delivery to CITY, become the property of CITY provided that CONSULTANT retains ownership of its pre-existing materials, templates, tools, models, formulas, methodologies, software, know-how, and internal work papers.
CONSULTANT grants CITY a nonexclusive license to use the final deliverables for the purposes for which they were prepared.
Notwithstanding the above, computer software (including without limitation financial models, compilations of formulas and spreadsheet models) and products derived from such software, prepared by CONSULTANT are Instruments of Service of CONSULTANT and shall remain the property of CONSULTANT. CONSULTANT shall likewise retain all common law, statutory and other reserved rights, including the copyright thereto.
However, the fixed final work product delivered by CONSULTANT shall belong to the CITY.
9. Relationship of Parties. It is understood that the relationship of CONSULTANT to the CITY is that of an independent contractor and all persons working for or under the direction of CONSULTANT are its agents or employees and not agents or employees of the CITY.
10. Schedule. CONSULTANT shall adhere to the schedule set forth in Exhibit B; provided, that CITY shall grant reasonable extensions of time for the performance of such services occasioned by governmental reviews of CONSULTANT’s work product or other unavoidable delays; provided, further, that such unavoidable delay shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, CONSULTANT’s officers or employees.
CONSULTANT acknowledges the importance to CITY of CITY’s Project schedule and agrees to put forth its best professional efforts to perform its services under this Agreement in a manner consistent with that schedule.
11. Indemnity.
(a) To the fullest extent allowed by law (including without limitation California Civil Code Sections 2782 and 2782.8), CONSULTANT shall defend, indemnify, and hold harmless City of Foster City, its officers, directors, officials, agents, employees, and volunteers (collectively, “Indemnitees”) from and against any and all claims, suits, expenses, liability, cause of action, loss, cost, damage, injury (including, without limitation, economic harm, injury to or death of any person, including an employee of CONSULTANT or its Subconsultants), of every kind, nature, and description, at law or equity, (including without limitation, incidental and Item 5.4
7 consequential damages, court costs, attorneys’ fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) (collectively “Liabilities”), that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of CONSULTANT, any Subconsultant, anyone directly or indirectly employed or retained by them, or anyone that they control.
CONSULTANT’s obligations to indemnify, defend, hold harmless the Indemnitees shall not apply to the extent that such Liabilities are caused in whole or in part by the sole negligence, active negligence, or willful misconduct of such Indemnitee but shall apply to all other Liabilities.
If CONSULTANT is a “design professional,” as defined in California Civil Code Section 2782.8(c), CONSULTANT shall indemnify, defend, and hold the Indemnitees harmless against Liability only to the extent such Liability arises out of, pertains to, or relates to CONSULTANT’s negligence, recklessness, or willful misconduct. In such an event, the cost to defend charged to CONSULTANT shall not exceed CONSULTANT’s proportionate percentage of fault.
(b) Intellectual Property Indemnification. CONSULTANT represents that professional services provided by CONSULTANT pursuant to this Agreement does not infringe on any other copyrighted work or intellectual property owned by others. CONSULTANT shall defend, indemnify and hold harmless CITY from all Liabilities, that may at any time arise for any infringement of the patent rights, copyright, trade secret, trade name, trademark, service mark or any other proprietary right of any person or persons in arising from or relating to CONSULTANT’s services provided to CITY under this Agreement.
(c) CONSULTANT shall place in its agreements with Subconsultants and cause its Subconsultants to agree to the indemnification and insurance provisions in this Agreement in favor of CITY and the Indemnitees in the exact form and substance as those contained in this Agreement. (d) CITY acknowledges that the discovery, presence, handling or removal of asbestos products, polychlorinated biphenyl (PCB) or other hazardous substances which may presently exist at the any Project site is outside of CONSULTANT’s responsibilities and is not included in the scope of Services CONSULTANT is to perform nor included in CONSULTANT’s insurance. CITY shall hire hazardous materials consultant if the Project requires the testing or remediation of hazardous substances.
CONSULTANT shall not be responsible or be involved in any way with the discovery, presence, handling or removal of such materials.
CONSULTANT shall, however, be responsible for the coordination of CONSULTANT’s services and work with the work of CITY’s hazardous materials consultants.
Item 5.4
8 (e) Duty to Cooperate. CONSULTANT shall notify CITY immediately in writing of any claim or damage related to activities or services performed under this Agreement. CONSULTANT shall cooperate with CITY in the investigation and disposition of all Liabilities arising out of the activities or services under this Agreement. Without limiting the foregoing, CONSULTANT shall take all steps necessary to assist CITY in the defense of any and all Liabilities brought by a contractor hired to construct the Project regarding any errors, flaws, and/or omissions in the plans or specifications of the Project. Any additional services or work under this paragraph shall be compensated as Additional Services.
12. Insurance. Prior to execution of this Agreement, CONSULTANT shall furnish to CITY Certificates of Insurance showing satisfactory proof that it maintains the insurance required by this Contract as set forth in EXHIBIT D, Insurance, which are attached and made a part of this Agreement.
CONSULTANT shall maintain all required insurance throughout the term of this Agreement and as otherwise provided in EXHIBIT D. In the event CONSULTANT fails to maintain any required insurance, and notwithstanding Paragraph 3 above, CITY may (but is not obligated to) purchase such insurance and deduct or retain premium amounts from any sums due CONSULTANT under this Agreement (or CONSULTANT shall promptly reimburse CITY for such expense).
CONSULTANT shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following completion of this project or service. In the event CONSULTANT fails to obtain or maintain completed operations coverage as required by this Agreement, the CITY at its sole discretion may purchase the coverage required and the cost will be paid by CONSULTANT.
13. WORKERS' COMPENSATION. CONSULTANT certifies that he is aware of the provisions of the Labor Code of the State of California 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 CONSULTANT certifies that he will comply with such provisions before commencing the performance of the work of this agreement.
14. NON-DISCRIMINATION. The CONSULTANT will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The CONSULTANT will take affirmative action to ensure that applicants are employed, and the employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following:
employment, advancement, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of Item 5.4
9 compensation, and selection for training, including apprenticeship. The CONSULTANT shall at all times be in compliance with the requirements of the Federal Americans With Disabilities Act (Public Law 101-336) which prohibits discrimination on the basis of disability by public entities. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause.
The CONSULTANT complies with all Equal Employment Opportunity ("EEO") and non-discrimination requirements pursuant to applicable State of California and federal statutes.
15. Notice. All notices required by this Agreement shall be given to the CITY and CONSULTANT in writing, by first class mail, postage prepaid, addressed as follows:
CITY: City of Foster City
610 Foster City Boulevard
Foster City, CA 94404-2299
Attention: Thai-Chau Le
CONSULTANT: BAE Urban Economics
2030 Addison Street, Suite 640
Berkeley, CA 94704
Attention: Stephanie Hagar
16. Assignment. This is an agreement for the personal services of CONSULTANT. CITY has relied upon the skills, knowledge, experience and training of CONSULTANT and the CONSULTANT’s firm, associates and employees as an inducement to enter into this Agreement.
CONSULTANT shall not assign or subcontract this Agreement without CITY’s express written consent. Further, CONSULTANT shall not assign any monies due or to become due under this Agreement without CITY’s prior written consent.
17. Amendments. This Agreement may be amended or modified only by written agreement signed by both parties.
18. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
19. Governing Law. This Agreement shall be deemed to have been executed in the County of San Mateo, California. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Any suit or action initiated Item 5.4
10 by either party shall be brought in the County of San Mateo, California unless the parties agree otherwise in a written amendment to this Agreement. In the event of litigation between the parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney’s fees and expenses of litigation of the successful party.
20. Mediation. Should any dispute arise out of this Agreement, the parties shall meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement and each party shall bear its own legal costs.
21. Conflict of Interest. CONSULTANT may serve other clients, but none who conduct business that would place CONSULTANT in an actual, nonwaivable "conflict of interest" as that term is defined in State law.
22. Liability of CITY. Except as provided in Exhibit B, Services to be Provided by CONSULTANT and Exhibit D, Insurance, CITY's obligations under this Agreement shall be limited to the payment of the compensation provided for in Paragraphs 1, 3, and 4 of this Agreement,
Notwithstanding any other provision of this Agreement, in no event shall CITY be liable, regardless of whether any claim is based on contract, tort or otherwise, for any special, consequential, indirect or incidental damages, lost profits or revenue, arising out of or in connection with this Agreement, the Services, or the Project.
CITY shall not be responsible for any damage to persons or property as a result of the use, misuse or failure of any equipment used by CONSULTANT, or by any of its employees, even though such equipment be furnished, rented or loaned to CONSULTANT by CITY. The acceptance or use of such equipment by CONSULTANT or any of its employees shall be construed to mean that CONSULTANT accepts full responsibility for and shall exonerate, indemnify, defend and save harmless CITY from and against any and all claims for any damage or injury of any type, including attorneys' fees, arising from the use, misuse or failure of such equipment, whether such damage be to the CONSULTANT, its employees, CITY employees or third parties, or to property belonging to any of the above.
Nothing in this Agreement shall constitute a waiver or limitation of any right or remedy, whether in equity or at law, which CITY or CONSULTANT may have under this Agreement or any applicable law. All rights and remedies Item 5.4
11 of CITY or CONSULTANT, whether under this Agreement or other applicable law, shall be cumulative.
23. Confidentiality. Any non-public confidential information, whether proprietary or not, made known to or discovered by CONSULTANT during the performance of or in connection with this Agreement for CITY, will be kept confidential and not be disclosed to any other person. CONSULTANT will immediately notify CITY in writing if it is requested to disclose any information made known to or discovered by during the performance of or in connection with this Agreement except to the extent disclosure is required by law, court order, professional obligations, insurer requirements, or the California Public Records Act.
These confidentiality service provisions and limitations shall remain fully effective indefinitely after termination of services and work to CITY hereunder.
24. Waiver of Default. Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below.
25. Entire Agreement. This Agreement, including Exhibits A, B, C, D and E, comprises the entire Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf.
CITY OF FOSTER CITY
Dated: _________________________________
Art Kiesel, Mayor
ATTEST:
Dated: ________________________________
Priscilla Schaus, City Clerk Secretary
Item 5.4
12 APPROVED AS TO FORM
Dated:
Benjamin Stock,
City Attorney Legal Counsel
CONSULTANT
Dated:
Stephanie Hagar,
Principal
Item 5.4
13 EXHIBIT A
SAMPLE TASK ORDER
TASK ORDER NO. [INSERT TASK No.]
TO MASTER ECONOMIC AND FISCAL ANALYSIS SERVICES AGREEMENT This Task Order No. _______ ("Task Order") is made and entered into by and between the City of Foster City (“City”) and [______________________] ("Consultant").
RECITAL
A. City and Consultant entered into an agreement entitled [______________________] ("Agreement"), by which the Consultant agreed to perform ___________________________________________________________ services in accordance with Task Orders issued by the City.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. INCORPORATION BY REFERENCE. This Task Order hereby incorporates by reference all items and conditions set forth in the Agreement.
2. SCOPE OFT ASK ORDER. Consultant shall perform the services described in Exhibit "B," attached hereto and incorporated herein by reference, in accordance with the terms and conditions of the Agreement.
3. PAYMENT. For services performed by Consultant in accordance with this Task Order, City will compensate Consultant in accordance with the terms and conditions of the Agreement, in an amount not to exceed $_______________(including all hourly billings as well as reimbursable costs.
4. SIGNATURES. The individuals executing this Task Order represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Task Order on behalf of the respective legal entities of the Consultant and the City.
IN WITNESS WHEREOF, the City and Consultant do hereby agree to the full performance of the terms set forth herein.
City of Foster City Consultant
_____________________________ _________________________ By:___________________________ By: [______________________] Title: City Manager if < $50,000 Title: [_____________________] Mayor/President if > $50,000
Date: _________________________ Date: _____________________ Tax ID No.: ______________
Item 5.4
14 EXHIBIT B
SERVICES TO BE PROVIDED, PAYMENTS, PROJECTS, AND SCHEDULE, [______________________] SERVICES
[EITHER COMPLETE EXHIBIT A OR ATTACH A PROPOSAL/SCOPE OF WORK THAT CONTAINS ALL THE INFORMATION BELOW AND DELETE THE TEXT BELOW FOR EACH TASK ORDER]
SERVICES TO BE PROVIDED
This is an Exhibit attached to and made a part of and incorporated by reference to the Agreement dated___________, by and between [______________________], hereinafter referred to as "CONSULTANT" and the City of Foster City, hereinafter referred to as "CITY" providing for professional services.
1. Description of the Project:
1.1 DESCRIPTION: Description of Project
2. Basic Services:
The CITY has developed a general scope of work as described below.
PAYMENTS
1. The maximum payment to CONSULTANT under this Agreement for the Project shall be:
Maximum Payment Amount
2. METHODS OF PAYMENT FOR CONSULTANT’S SERVICES AND EXPENSES:
List Methods of Payment
3. TIMES OF PAYMENTS.
List Times of Payments
PROJECTS AND SCHEDULE
List Project Schedule (IF APPLICABLE)
END OF EXHIBIT B
Item 5.4
15 EXHIBIT C
FEE SCHEDULE
Item 5.4
16 EXHIBIT D
INSURANCE FORMS
CONSULTANT shall provide, in addition to the Certificates of Insurance, original Endorsement affecting the coverages specified herein on the attached form. No substitute form will be accepted.
This is an Exhibit to, and made a part of and incorporated by reference to the Agreement dated [_____], by and between [______________________], hereinafter referred to as "Consultant”, and City of Foster City, hereinafter referred to as "City", providing for professional services.
1. Consultant's Duty to Show Proof of Insurance. Consultant, in order to protect City and its Council members, officials, agents, officers, and employees against all claims and liability for death, injury, loss and damage as a result of Consultant's acts, errors, or omissions in connection with the performance of Consultant's obligations, as required in this Agreement, shall secure and maintain insurance as described below. Consultant shall not perform any work under this Agreement until Consultant has obtained all insurance required under this section and the required certificates of insurance and all required endorsements have been filed with the City's authorized insurance representative, insurance Tracking Services Inc. (ITS). Receipt of evidence of insurance that does not comply with all applicable insurance requirements shall not constitute a waiver of the insurance requirements set forth herein. The required documents must be signed by the authorized representative of the insurance company shown on the certificate. Upon request, Consultant shall supply proof that such person is an authorized representative thereof and is authorized to bind the named underwriter(s) and their company to the coverage, limits and termination provisions shown thereon, Consultant shall promptly deliver to ITS a certificate of insurance, and all required endorsements, with respect to each renewal policy, as necessary to demonstrate the maintenance of the required insurance coverage for the term specified herein. Such certificates and endorsements shall be delivered to ITS prior to the expiration date of any policy and bear a notation evidencing payment of the premium thereof if so requested. Consultant shall immediately pay any deductibles and self-insured retentions under all required insurance policies upon the submission of any claim by Consultant or City as an additional insured.
1.1 Insurance Requirements
Commercial General Liability Insurance
Commercial General Liability Insurance including, but not limited to, Contractual Liability Insurance (specifically concerning the indemnity provisions of this Agreement with the City), Products-Completed Operations Hazard, liability for slander, false arrest and invasion of privacy arising out of professional services rendered hereunder, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of Consultant's performance of services under this Agreement. The Commercial General Liability insurance shall contain no exclusions or limitation for independent contractors working on the behalf of the named insured. Consultant shall maintain the Products-Completed Operations Hazard coverage for the longest period allowed by law following termination of this Agreement. The amount of said insurance coverage required by this Agreement shall be the policy limits, which shall be at least two million dollars ($2,000,000) each occurrence and four million dollars ($4,000,000) aggregate.
*Please note, the City will require a separate additional insured endorsement for the Commercial General Liability policy, listing the “City of Foster City, its Council/Board members, officials, agents, officers, volunteers and employees”.
Item 5.4
17 ☒ Business Automobile Liability Insurance
Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering any vehicle and/or all owned, leased, hired and nonowned vehicles used in the performance of Services pursuant to this Agreement with coverage equal to the policy limits, which shall be at least one million dollars ($1,000,000) each occurrence.
☒ Workers' Compensation Insurance
Consultant shall submit written proof that Consultant is insured against liability for workers' compensation in accordance with the provisions of section 3700 of the California Labor Code.
Consultant shall require any Subconsultants to provide workers' compensation for all of the Subconsultants' employees, unless the Subconsultants' employees are covered by the insurance afforded by Consultant. If any class of employees engaged in work or services performed under this Agreement is not covered by California Labor Code section 3700, Consultant shall provide and/or require each Subconsultant to provide adequate insurance for the coverage of employees not otherwise covered. Consultant shall also maintain employer's liability insurance with limits of one million dollars ($1,000,000) for bodily injury or disease. ☒ Professional Liability Insurance
Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, all negligent acts, errors or omissions in connection with services to be provided under this Agreement, with no exclusion for claims of one insured against another insured, with coverage equal to the policy limits, which shall not be less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) aggregate.
1.2 Self-Insured Retention
Any self-insured retentions in excess of $100,000 must be declared on the Certificate of insurance or other documentation provided to City and must be approved by the City Risk Manager.
1.3 Claims-Made Basis Coverage
If any of the insurance coverages required under this Agreement is written on a claims-made basis, Consultant, at Consultant's option, shall either (i) maintain said coverage for at least five (5) years following the termination of this Agreement with coverage extending back to the effective date of this Agreement; (ii) purchase an extended reporting period of not less than five (5) years following the termination of this Agreement; or (iii) acquire a full prior acts provision on any renewal or replacement policy.
2. City as Additional Insured
On Consultant's Commercial General Liability and Automobile policies, the City of Foster City, its Council members, officers, directors, agents, employees, and volunteers, shall be named as additional insured's, but only with respect to liability arising out of the activities of the named insured. Any endorsement shall be provided using one of the following three options: (i) on ISO form CG 20 10 1 1 85; or (ii) on ISO form CG 20 37 10 01 plus either ISO form CG 20 10 10 01 or CG 20 33 10 01; or (iii) on such other forms which provide coverage at least equal to or better than form CG 20 10 1 1 85.
3. Insurance terms and conditions:
3.1 Cancellation of Insurance
The above stated insurance coverages required to be maintained by consultant shall be maintained until the completion of all of Consultant's obligations under this Agreement except as otherwise Item 5.4
18 indicated herein. Each insurance policy supplied by consultant shall not be suspended, voided, cancelled or reduced in coverage or in limits except after ten (10) days written notice by Consultant in the case of non-payment of premiums, or thirty (30) days written notice in all other cases. This notice requirement does not waive the insurance requirements stated herein. Consultant shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits have been exhausted or upon insolvency of the insurer that issued the policy.
3.2 All insurance shall be issued by a company or companies admitted to do business in California and listed in the current "Best's Key Rating Guide" publication with a minimum rating of A-; VII Any exception to these requirements must be approved by the City Risk Manager.
3.3 If Consultant is, or becomes during the term of this Agreement, self-insured or a member of a self-insurance pool, Consultant shall provide coverage equivalent to the insurance coverages and endorsements required above. The City will not accept such coverage unless the City determines, in its sole discretion and by written acceptance, that the coverage proposed to be provided by Consultant is equivalent to the above-required coverages.
3.4 For any claims related to the Agreement, the Consultant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
3.5 Insurance coverages in the minimum amounts set forth herein shall not be construed to relieve Consultant for any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the City from taking such other actions as are available to it under any other provision of this Agreement or otherwise in law.
3.6 Failure by Consultant to maintain all such insurance in effect at all times required by this Agreement shall be a material breach of this Agreement by Consultant. City, at its sole option, may terminate this Agreement and obtain damages from Consultant resulting from said breach.
Alternatively, City may purchase such required insurance coverage, and without further notice to Consultant, City shall deduct from sums due to Consultant any premiums and associated costs advanced or paid by City for such insurance. If the balance of monies obligated to Consultant pursuant to this Agreement are insufficient to reimburse City for the premiums and any associated costs, Consultant agrees to reimburse City for the premiums and pay for all costs associated with the purchase of said insurance. Any failure by City to take this alternative action shall not relieve Consultant of its obligation to obtain and maintain the insurance coverages required by this Agreement.
3.7 Should any of the required insurance (other than errors and omissions insurance) be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defenses costs be included in such general aggregate limit, such general annual aggregate limit shall be double the occurrence or claims limit specified above.
Item 5.4
19 ATTACHED
1. Insurance Coverage Form
Item 5.4
20 EXHIBIT D
This INSURANCE COVERAGE FORM modifies, or documents insurance provided under the following:
Named Insured: Effective Work Date(s):
Description of Work/Locations/Vehicles:
ADDITIONAL INSURED: City of Foster City (CITY)
610 Foster City Boulevard, Foster City, CA 94404
Attention: _________________________________
Contract Administrator
Endorsement and Certificates of Insurance Required
The Additional Insured, its elected or appointed officers, officials, employees and volunteers are included as insureds with regard to damages and defense of claims arising from: (Check all that apply)
Insurer Policy
No.
General Liability: (a) activities performed by or on behalf of the Named Insured, (b) products and completed operations of the Named Insured, (c) premises owned, leased occupied or used by the Named Insured, and/or (d) permits issued for operations performed by the Named Insured. {Note:
MEETS OR EXCEEDS ISO Form # CG 20 10 11 85}
Auto Liability: the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Named Insured, regardless of whether liability is attributable to the Named Insured or a combination of the Named Insured and the Additional Insured, its elected or appointed officers, officials, employees or volunteers.
Other:
Certificates of Insurance Required (no endorsement needed) (Check all that apply) Insurer Policy No.
Workers Compensation: work performed by employees of the Named Insured while those employees are engaged in work under the simultaneous directions and control of the Named Insured and the Additional Insured.
Professional Liability:
PRIMARY/NON-CONTRIBUTORY: This insurance is primary and is not additional to or contributing with any other insurance carried by or for the benefit of Additional Insureds.
SEVERABILITY OF INTEREST: The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the insurer’s limit of liability.
PROVISIONS REGARDING THE INSURED'S DUTIES AFTER ACCIDENT OR LOSS: Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Additional Insured, its elected or appointed officers, officials, employees, or volunteers.
CANCELLATION NOTICE. The insurance afforded by this policy shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice (ten (10) days if canceled due to non-payment) by regular mail return receipt requested has been given to the Additional Insured. Such notice shall be addressed as shown above.
WAIVER OF SUBROGATION: The insurer(s) named above agree to waive all rights of subrogation against the CITY, its elected or appointed officers, officials, agents, volunteers, and employees for losses paid under the terms of this policy which arise from work performed by the Named Insured for the CITY.
Nothing herein contained shall vary, alter or extend any provision or condition of the Policy other than as above stated.
SIGNATURE OF INSURER OR AUTHORIZED REPRESENTATIVE OF THE INSURER I, ______________________________________________________________(print/type name), warrant that I have authority to bind the above-named insurance company and by my signature hereon do so bind this company.
SIGNATURE OF AUTHORIZED REPRESENTATIVE (original signature required) ORGANIZATION: TITLE:
ADDRESS:
TELEPHONE: ( ) DATE ISSUED:
END OF EXHIBIT D
Item 5.4
21 EXHIBIT E
COVID-19 AMENDMENT/ATTACHMENT
(Consulting Agreement Form)
This COVID-19 Amendment/Attachment amends the Agreement between the City of Foster City hereinafter called "CITY” and [______________________] (“Consultant”) dated [______________].
1. Definitions
A. The 2019 novel coronavirus and the disease it causes are collectively referred to herein as “COVID-19”.
B. A “COVID-19 Condition” is something attributable to COVID-19 not caused by the Consultant (which for purposes herein includes all subconsultants) and beyond its reasonable control including but not limited to COVID-19 Proclamations and supply chain disruptions due to COVID19, and other circumstances concerning COVID-19 not caused by the Consultant and which are beyond its reasonable control.
C. A “COVID-19 Proclamation” includes but is not limited to orders, directives and guidance concerning COVID-19 that have been issued, and which may be issued from time to time, by public agencies or regulatory bodies, the CDC or OSHA or Cal/OSHA, including without limitation the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards. Consultant acknowledges that those orders, directives and guidance may require the Project to shut down or otherwise increase the Consultant’s cost or time of performance by calling for things such as social distancing and the use of personal protective equipment. In the event of conflicting COVID-19 Proclamations, the Consultant shall follow the most applicable, restrictive and newest COVID-19 Proclamations.
D. An “Unknown COVID-19 Condition” is a COVID-19 Condition the Consultant did not know about, and reasonably should not have known about, as of the date the Consultant submitted its proposal. The requirements contained in COVID-19 Proclamations issued before submission of a proposal are not Unknown COVID-19 Conditions, and the Consultant will be deemed to have knowledge of those requirements.
E. An “Unknown COVID-19 Cost” is a cost that: (i) is solely attributable to an Unknown COVID19 Condition; (ii) is reasonable under the circumstances; (iii) is not the result of the Consultant’s failure to comply with the contract documents or a COVID-19 Proclamation; and (iv) is not the result of a subconsultants failure to comply with a COVID-19 Proclamation in connection with the performance of the Services.
2. COVID-19 Conditions and Proposal. Consultant is expected to know and is deemed to have known about COVID-19 Conditions when it submits its proposal, and COVID-19 Conditions must be accounted for in the Consultant’s price and schedule. In order to be entitled to any relief from a COVID19 Condition, the Consultant must demonstrate that the issue, cost or delay is due to an Unknown COVID-19 Condition.
3. Compliance with COVID-19 Proclamations.
A. Consultant shall comply with COVID-19 Proclamations in the performance of the Services, irrespective of when the COVID-19 Proclamations are issued, and as they pertains to performance of the Services. The cost of such compliance is non-compensable, except as otherwise expressly stated herein.
B. Consultant is responsible to ensure that its subconsultants and suppliers comply with COVID19 Proclamations at all times in connection with the performance of their Services.
4. Delay. The Consultant is entitled to a reasonable time extension for an Unknown COVID-19 Condition. Such time extension is non-compensable.
5. City Directed Suspension. The City may suspend Services due to COVID-19 health concerns, even though the Consultant may be allowed to proceed with the Services based on COVID-19 Proclamations. The City may suspend the Services for its convenience. The Consultant is entitled to a Item 5.4
22 time extension for a City Directed Suspension, and the contract amount will be equitably adjusted if and to the extent Consultant incurs increased costs that are Unknown COVID-19 Costs.
6. Compensation for COVID-19 Costs. City will reimburse the Consultant for costs attributable to COVID-19, and which are not included in the schedule of values, only if the cost is an Unknown COVID19 Cost.
7. Safe Work Practices. Consultant shall implement safe work practices recommended by CDC or OSHA or Cal/OSHA, which may include, inter alia, screening all employees, subconsultants, or others (“worker(s)”) at all locations where Services are performed for signs and symptoms of COVID-19; adopting staggered work schedules, e.g., providing alternating workdays or extra shifts, to reduce the total number of employees on a site at any given time and to ensure physical distancing; identifying choke points where workers are forced to stand together, such as hallways and elevators, ingress and egress points, break areas, and buses, and implement policies to maintain social distancing; coordinating deliveries in line with the employer's minimal contact and cleaning protocols; and instituting a rigorous housekeeping program to reduce dust levels at all exterior locations. Consultant remains fully responsible for following and complying with changes to recommended safe work practices from time to time.
8. Monitoring and Reporting. City may require the Consultant to actively monitor the health of its workers through temperature checks and questionnaires of major COVID-19 symptoms, including but not limited to cough, fever above 100.4 degrees Fahrenheit and shortness of breath. Consultant shall immediately report to City any outbreaks of COVID-19 among its workers. The Consultant shall not knowingly allow any worker who has tested positive with COVID-19 to enter a City building. In the event of an outbreak or an exposure to COVID-19, the City may impose appropriate mitigation strategies which may be in consultation with the public health officer.
9. Conflicts. In the event of an inconsistency between this COVID-19 Amendment and the Agreement, this Addendum shall control.
IN WITNESS WHEREOF, the City and Consultant have executed this Covid-19 Amendment as of the date set forth above.
CONSULTANT: CITY:
________________________ ____________________________
Signature Signature
________________________ ______________________________ [__________________] [___________________], Mayor
END OF EXHIBIT E
Item 5.4
1 MASTER PROFESSIONAL SERVICES AGREEMENT
FOR
ECONOMIC AND FISCAL ANALYSIS SERVICES
This Agreement is made and entered into as of the 22nd day of September, 2026 by and between the City of Foster City hereinafter called "CITY" and Economic and Planning Systems, Inc. hereinafter called "CONSULTANT".
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
WHEREAS, CITY desires to retain CONSULTANT to provide professional economic and fiscal analysis services and related consulting services; WHEREAS, It is anticipated that, as a need arises for CONSULTANT to provide services, CITY will issue Task Orders to CONSULTANT (in a form substantially similar to that set forth in Exhibit “A,” attached hereto and incorporated by reference which more particularly describes the scope of services to be performed);
WHEREAS, In reliance upon CONSULTANT's documentation of its qualifications, the CITY finds that CONSULTANT has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested services.
WHEREAS, That CONSULTANT is specially trained, experienced and competent to perform and has agreed to provide such services;
NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties hereby agree as follows:
TERMS AND CONDITIONS
1. Services. The services to be performed by CONSULTANT under this Agreement shall include those services set forth in each Task Order and Exhibit “B,” Scope of Services, which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein.
Performance of the work specified in said Exhibit B and each Task Order is hereby made an obligation of CONSULTANT under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
Where in conflict, the terms of this Agreement supersede and prevail over any terms set forth in Exhibit B and in each Task Order.
Item 5.4
2 1. Term; Termination.
(a) The term of this Agreement shall commence upon the date hereinabove written and shall expire upon completion of performance of services hereunder by CONSULTANT. Initial contract period shall be from September 22, 2026 and expires on September 22, 2031 Renewal shall be by mutual consent of CONSULTANT AND CITY as approved by the City Council Board. CONSULTANT shall not commence Services or work until a Notice to Proceed is issued by CITY.
(b) Notwithstanding the provisions of (a) above, CITY may with or without cause, direct CONSULTANT to suspend, delay or interrupt Services, in whole or in part, for such periods of time as CITY may determine in its sole discretion.
(c) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for default, should CONSULTANT commit a material breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days of the date of CITY’s written notice to CONSULTANT demanding such cure, in which case CONSULTANT shall be liable to CITY for direct damages actually incurred by CITY to the extent caused by CONSULTANT’s uncured material breach. (d) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for convenience, by providing no less than seven (7) days’ written notice, whenever CITY determines that such termination is in CITY’s best interests, in which case CONSULTANT shall be entitled to recover its costs expended up to the termination date plus reasonable profit thereon to the termination date as this Agreement would otherwise provide, but may recover no other cost, damage or expense.
CONSULTANT shall continue its work throughout the course of any dispute, and CONSULTANT’s failure to continue work during a dispute shall be a material breach of this Agreement.
2. Compensation; Expenses; Payment. CITY shall compensate CONSULTANT for all services performed by CONSULTANT hereunder in an amount based upon CONSULTANT’s hourly rates during the time of the performance of said services. A copy of CONSULTANT’s hourly rates for which services hereunder shall be performed are set forth in CONSULTANT’s fee schedule marked Exhibit “C” hereof, attached hereto and by this reference incorporated herein.
Notwithstanding the foregoing, the combined total of compensation and reimbursement of costs payable hereunder shall not exceed the total amount identified in all Task Orders issued by the City against this agreement. The Consultant shall only be paid for services performed under this Agreement to the extent authorized by written Task Order. No Item 5.4
3 overhead or other expenses can be recovered for interim periods when the Consultant’s services are not utilized by the City. Invoices for amounts in excess of each Task Order shall not be paid unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by CITY’s Manager (for contracts less than $50,000) or CITY Board (for contracts $50,000 or more) evidenced by motion duly made and carried and a written contract amendment having been executed.
Compensation and reimbursement of costs and expenses hereunder shall be payable upon monthly billing therefor by CONSULTANT to CITY, which billing shall include an itemized statement, briefly describing by task and labor category or cost/expense items billed. Final payment will be made when all Services required under this Agreement have been completed to the reasonable satisfaction of CITY including, without limitation, CONSULTANT's transmittal of all deliverables to CITY required by EXHIBIT B and each Task Order.
CITY shall not incur any charges under this Agreement, nor shall any payments become due to CONSULTANT for any payment period on the Project, until CITY receives all deliverables required under Exhibit B and each Task Order, SCOPE OF WORK AND SCHEDULE, for the payment period (if any) and reasonably accepts such deliverables as meeting the requirements of this Agreement, provided, however, that CONSULTANT shall be entitled to monthly payment for Services properly performed and costs incurred during the applicable billing period, whether or not such Services result in a completed deliverable during that billing period. CITY shall not unreasonably withhold, condition, or delay acceptance of deliverables or payment of undisputed amounts.
In cases where CONSULTANT has partially completed one or more deliverables due during a payment period, and if CONSULTANT demonstrates diligent progress thereon, then CITY may make a partial progress payment based upon percentage completion of the partially completed deliverables and diligent progress but taking into account any adverse impacts upon CITY. CITY shall not be liable for, and CONSULTANT shall not be entitled to, any payment for Services performed before this Agreement's execution.
CITY will not withhold any Federal or State income taxes or Social Security tax from any payments made by CITY to CONSULTANT under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums is the sole responsibility of CONSULTANT.
CITY has no responsibility or liability for payment of CONSULTANT’s taxes or assessments.
Item 5.4
4 4. Performance of Services. No work shall be performed under this Agreement except to the extent the CONSULTANT receives a Task Order from the CITY’s Authorized Representative. The CITY will request proposals from the CONSULTANT for each Task Order when services are needed.
CONSULTANT shall respond with a scope and cost proposal in a reasonably prompt manner, no later than fifteen (15) calendar days after CITY’s request. Such proposal shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefor, the time of performance thereof, and such other matters as the parties deem appropriate for the accomplishment of such services. Upon the approval of the terms of the proposal by CITY’s Manager (for contracts less than $50,000) or CITY Council (for contracts $50,000 or more) by motion duly made and carried, the CITY's Authorized Representative shall issue a Task Order against this agreement. CONSULTANT shall commence performance and shall complete all required services no later than the dates set forth in accordance with the approved Task Order. Except to the extent modified by written amendment, all other terms and conditions of this Agreement shall be deemed incorporated in each such Task Order.
5. Records and Audit. CONSULTANT shall keep and maintain accurate records of all time expended and costs and expenses incurred relating to services to be performed by CONSULTANT hereunder. Said records shall be available to CITY for review and copying during regular business hours at CONSULTANT’s place of business or as otherwise agreed upon by the parties.
CONSULTANT shall prepare and maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of four (4) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photo static, photographing and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof.
Any authorized representative of CITY shall have access to any writings as defined above for the purposes of making audit, evaluation, examination, excerpts and transcripts during the period such records are to be maintained by CONSULTANT. Further, CITY has the right at all reasonable times to audit, inspect or otherwise evaluate the services and work performed or being performed under this Agreement.
Item 5.4
5 6. Authorization. This Agreement becomes effective when endorsed by both parties in the space provided below.
7. Reliance on Professional Skill of CONSULTANT. CONSULTANT represents that it has the necessary professional skills to perform the services required and the CITY shall rely on such skills of the CONSULTANT to do and perform the work. In performing services hereunder CONSULTANT shall adhere to the standards generally prevailing for the performance of expert consulting services similar to those to be performed by CONSULTANT hereunder.
CONSULTANT represents that it has reviewed Exhibit B and that in its professional judgment the Services to be performed under this Agreement can be performed for a fee within the maximum amount set forth in the Compensation Schedule established in Exhibit B.
CONSULTANT represents that it possesses all necessary training, licenses, certificates, and permits required by the federal, state, CITY or municipal governments to perform the Services. Such licenses, certificates and permits must be valid at the time CONSULTANT enters into this Agreement and must be maintained during the term of this Agreement in full force and effect. Licenses, certificates and permits may include but are not limited to driver’s licenses, professional licenses or certificates and business licenses. Such licenses, certificates and permits will be procured and maintained in force by CONSULTANT at no expense to CITY.
CONSULTANT represents that its performance of the Services will conform to the standards of practice of a professional having experience and expertise in performing professional services of like nature and complexity of the Services working on similar, successfully completed projects.
The granting of any progress payment by CITY, or the receipt thereof by CONSULTANT, or any inspection, review, approval or oral statement by any representative of CITY or any other governmental entity, shall in no way waive or limit the obligations in this Paragraph 7 or lessen the liability of CONSULTANT for unsatisfactory Services, including but not limited to cases where the defective or below standard Services may not have been apparent or detected at the time of such payment, inspection, review or approval.
CONSULTANT’s services are advisory and technical in nature. CITY retains sole responsibility for legal determinations, policy decisions, public notices, hearings, adoption of fees or ordinances, and implementation of any fiscal, nexus, or economic analysis. CONSULTANT does not provide legal advice.
Item 5.4
6 8. Documents. All documents, plans, drawings, renderings, and other papers, or copies thereof, as finally rendered, prepared by CONSULTANT pursuant to the terms of this Agreement, shall, upon preparation and delivery to CITY, become the property of CITY provided that CONSULTANT retains ownership of its pre-existing materials, templates, tools, models, formulas, methodologies, software, know-how, and internal work papers.
CONSULTANT grants CITY a nonexclusive license to use the final deliverables for the purposes for which they were prepared.
Notwithstanding the above, computer software (including without limitation financial models, compilations of formulas and spreadsheet models) and products derived from such software, prepared by CONSULTANT are Instruments of Service of CONSULTANT and shall remain the property of CONSULTANT. CONSULTANT shall likewise retain all common law, statutory and other reserved rights, including the copyright thereto.
However, the fixed final work product delivered by CONSULTANT shall belong to the CITY.
9. Relationship of Parties. It is understood that the relationship of CONSULTANT to the CITY is that of an independent contractor and all persons working for or under the direction of CONSULTANT are its agents or employees and not agents or employees of the CITY.
10. Schedule. CONSULTANT shall adhere to the schedule set forth in Exhibit B; provided, that CITY shall grant reasonable extensions of time for the performance of such services occasioned by governmental reviews of CONSULTANT’s work product or other unavoidable delays; provided, further, that such unavoidable delay shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, CONSULTANT’s officers or employees.
CONSULTANT acknowledges the importance to CITY of CITY’s Project schedule and agrees to put forth its best professional efforts to perform its services under this Agreement in a manner consistent with that schedule.
11. Indemnity.
(a) To the fullest extent allowed by law (including without limitation California Civil Code Sections 2782 and 2782.8), CONSULTANT shall defend, indemnify, and hold harmless City of Foster City, its officers, directors, officials, agents, employees, and volunteers (collectively, “Indemnitees”) from and against any and all claims, suits, expenses, liability, cause of action, loss, cost, damage, injury (including, without limitation, economic harm, injury to or death of any person, including an employee of CONSULTANT or its Subconsultants), of every kind, nature, and description, at law or equity, (including without limitation, incidental and Item 5.4
7 consequential damages, court costs, attorneys’ fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) (collectively “Liabilities”), that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of CONSULTANT, any Subconsultant, anyone directly or indirectly employed or retained by them, or anyone that they control.
CONSULTANT’s obligations to indemnify, defend, hold harmless the Indemnitees shall not apply to the extent that such Liabilities are caused in whole or in part by the sole negligence, active negligence, or willful misconduct of such Indemnitee but shall apply to all other Liabilities.
If CONSULTANT is a “design professional,” as defined in California Civil Code Section 2782.8(c), CONSULTANT shall indemnify, defend, and hold the Indemnitees harmless against Liability only to the extent such Liability arises out of, pertains to, or relates to CONSULTANT’s negligence, recklessness, or willful misconduct. In such an event, the cost to defend charged to CONSULTANT shall not exceed CONSULTANT’s proportionate percentage of fault.
(b) Intellectual Property Indemnification. CONSULTANT represents that professional services provided by CONSULTANT pursuant to this Agreement does not infringe on any other copyrighted work or intellectual property owned by others. CONSULTANT shall defend, indemnify and hold harmless CITY from all Liabilities, that may at any time arise for any infringement of the patent rights, copyright, trade secret, trade name, trademark, service mark or any other proprietary right of any person or persons in arising from or relating to CONSULTANT’s services provided to CITY under this Agreement.
(c) CONSULTANT shall place in its agreements with Subconsultants and cause its Subconsultants to agree to the indemnification and insurance provisions in this Agreement in favor of CITY and the Indemnitees in the exact form and substance as those contained in this Agreement. (d) CITY acknowledges that the discovery, presence, handling or removal of asbestos products, polychlorinated biphenyl (PCB) or other hazardous substances which may presently exist at the any Project site is outside of CONSULTANT’s responsibilities and is not included in the scope of Services CONSULTANT is to perform nor included in CONSULTANT’s insurance. CITY shall hire hazardous materials consultant if the Project requires the testing or remediation of hazardous substances.
CONSULTANT shall not be responsible or be involved in any way with the discovery, presence, handling or removal of such materials.
CONSULTANT shall, however, be responsible for the coordination of CONSULTANT’s services and work with the work of CITY’s hazardous materials consultants.
Item 5.4
8 (e) Duty to Cooperate. CONSULTANT shall notify CITY immediately in writing of any claim or damage related to activities or services performed under this Agreement. CONSULTANT shall cooperate with CITY in the investigation and disposition of all Liabilities arising out of the activities or services under this Agreement. Without limiting the foregoing, CONSULTANT shall take all steps necessary to assist CITY in the defense of any and all Liabilities brought by a contractor hired to construct the Project regarding any errors, flaws, and/or omissions in the plans or specifications of the Project. Any additional services or work under this paragraph shall be compensated as Additional Services.
12. Insurance. Prior to execution of this Agreement, CONSULTANT shall furnish to CITY Certificates of Insurance showing satisfactory proof that it maintains the insurance required by this Contract as set forth in EXHIBIT D, Insurance, which are attached and made a part of this Agreement.
CONSULTANT shall maintain all required insurance throughout the term of this Agreement and as otherwise provided in EXHIBIT D. In the event CONSULTANT fails to maintain any required insurance, and notwithstanding Paragraph 3 above, CITY may (but is not obligated to) purchase such insurance and deduct or retain premium amounts from any sums due CONSULTANT under this Agreement (or CONSULTANT shall promptly reimburse CITY for such expense).
CONSULTANT shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following completion of this project or service. In the event CONSULTANT fails to obtain or maintain completed operations coverage as required by this Agreement, the CITY at its sole discretion may purchase the coverage required and the cost will be paid by CONSULTANT.
13. WORKERS' COMPENSATION. CONSULTANT certifies that he is aware of the provisions of the Labor Code of the State of California 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 CONSULTANT certifies that he will comply with such provisions before commencing the performance of the work of this agreement.
14. NON-DISCRIMINATION. The CONSULTANT will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The CONSULTANT will take affirmative action to ensure that applicants are employed, and the employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following:
employment, advancement, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of Item 5.4
9 compensation, and selection for training, including apprenticeship. The CONSULTANT shall at all times be in compliance with the requirements of the Federal Americans With Disabilities Act (Public Law 101-336) which prohibits discrimination on the basis of disability by public entities. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause.
The CONSULTANT complies with all Equal Employment Opportunity ("EEO") and non-discrimination requirements pursuant to applicable State of California and federal statutes.
15. Notice. All notices required by this Agreement shall be given to the CITY and CONSULTANT in writing, by first class mail, postage prepaid, addressed as follows:
CITY: City of Foster City
610 Foster City Boulevard
Foster City, CA 94404-2299
Attention: Thai-Chau Le
CONSULTANT: Economic & Planning Systems, Inc.
1330 Broadway, Suite 450
Oakland, CA 94612
Attention: Jason Moody
16. Assignment. This is an agreement for the personal services of CONSULTANT. CITY has relied upon the skills, knowledge, experience and training of CONSULTANT and the CONSULTANT’s firm, associates and employees as an inducement to enter into this Agreement.
CONSULTANT shall not assign or subcontract this Agreement without CITY’s express written consent. Further, CONSULTANT shall not assign any monies due or to become due under this Agreement without CITY’s prior written consent.
17. Amendments. This Agreement may be amended or modified only by written agreement signed by both parties.
18. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
19. Governing Law. This Agreement shall be deemed to have been executed in the County of San Mateo, California. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Any suit or action initiated Item 5.4
10 by either party shall be brought in the County of San Mateo, California unless the parties agree otherwise in a written amendment to this Agreement. In the event of litigation between the parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney’s fees and expenses of litigation of the successful party.
20. Mediation. Should any dispute arise out of this Agreement, the parties shall meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement and each party shall bear its own legal costs.
21. Conflict of Interest. CONSULTANT may serve other clients, but none who conduct business that would place CONSULTANT in an actual, nonwaivable "conflict of interest" as that term is defined in State law.
22. Liability of CITY. Except as provided in Exhibit B, Services to be Provided by CONSULTANT and Exhibit D, Insurance, CITY's obligations under this Agreement shall be limited to the payment of the compensation provided for in Paragraphs 1, 3, and 4 of this Agreement,
Notwithstanding any other provision of this Agreement, in no event shall CITY be liable, regardless of whether any claim is based on contract, tort or otherwise, for any special, consequential, indirect or incidental damages, lost profits or revenue, arising out of or in connection with this Agreement, the Services, or the Project.
CITY shall not be responsible for any damage to persons or property as a result of the use, misuse or failure of any equipment used by CONSULTANT, or by any of its employees, even though such equipment be furnished, rented or loaned to CONSULTANT by CITY. The acceptance or use of such equipment by CONSULTANT or any of its employees shall be construed to mean that CONSULTANT accepts full responsibility for and shall exonerate, indemnify, defend and save harmless CITY from and against any and all claims for any damage or injury of any type, including attorneys' fees, arising from the use, misuse or failure of such equipment, whether such damage be to the CONSULTANT, its employees, CITY employees or third parties, or to property belonging to any of the above.
Nothing in this Agreement shall constitute a waiver or limitation of any right or remedy, whether in equity or at law, which CITY or CONSULTANT may have under this Agreement or any applicable law. All rights and remedies Item 5.4
11 of CITY or CONSULTANT, whether under this Agreement or other applicable law, shall be cumulative.
23. Confidentiality. Any non-public confidential information, whether proprietary or not, made known to or discovered by CONSULTANT during the performance of or in connection with this Agreement for CITY, will be kept confidential and not be disclosed to any other person. CONSULTANT will immediately notify CITY in writing if it is requested to disclose any information made known to or discovered by during the performance of or in connection with this Agreement except to the extent disclosure is required by law, court order, professional obligations, insurer requirements, or the California Public Records Act.
These confidentiality service provisions and limitations shall remain fully effective indefinitely after termination of services and work to CITY hereunder.
24. Waiver of Default. Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below.
25. Entire Agreement. This Agreement, including Exhibits A, B, C, D and E, comprises the entire Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf.
CITY OF FOSTER CITY
Dated: _________________________________
Art Kiesel, Mayor
ATTEST:
Dated: ________________________________
Priscilla Schaus, City Clerk Secretary
Item 5.4
12 APPROVED AS TO FORM
Dated:
Benjamin Stock,
City Attorney Legal Counsel
CONSULTANT
Dated:
Jason Moody,
Managing Principal
Item 5.4
13 EXHIBIT A
SAMPLE TASK ORDER
TASK ORDER NO. [INSERT TASK No.]
TO MASTER ECONOMIC AND FISCAL ANALYSIS SERVICES AGREEMENT This Task Order No. _______ ("Task Order") is made and entered into by and between the City of Foster City (“City”) and [______________________] ("Consultant").
RECITAL
A. City and Consultant entered into an agreement entitled [______________________] ("Agreement"), by which the Consultant agreed to perform ___________________________________________________________ services in accordance with Task Orders issued by the City.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. INCORPORATION BY REFERENCE. This Task Order hereby incorporates by reference all items and conditions set forth in the Agreement.
2. SCOPE OFT ASK ORDER. Consultant shall perform the services described in Exhibit "B," attached hereto and incorporated herein by reference, in accordance with the terms and conditions of the Agreement.
3. PAYMENT. For services performed by Consultant in accordance with this Task Order, City will compensate Consultant in accordance with the terms and conditions of the Agreement, in an amount not to exceed $_______________(including all hourly billings as well as reimbursable costs.
4. SIGNATURES. The individuals executing this Task Order represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Task Order on behalf of the respective legal entities of the Consultant and the City.
IN WITNESS WHEREOF, the City and Consultant do hereby agree to the full performance of the terms set forth herein.
City of Foster City Consultant
_____________________________ _________________________ By:___________________________ By: [______________________] Title: City Manager if < $50,000 Title: [_____________________] Mayor/President if > $50,000
Date: _________________________ Date: _____________________ Tax ID No.: ______________
Item 5.4
14 EXHIBIT B
SERVICES TO BE PROVIDED, PAYMENTS, PROJECTS, AND SCHEDULE, [______________________] SERVICES
[EITHER COMPLETE EXHIBIT A OR ATTACH A PROPOSAL/SCOPE OF WORK THAT CONTAINS ALL THE INFORMATION BELOW AND DELETE THE TEXT BELOW FOR EACH TASK ORDER]
SERVICES TO BE PROVIDED
This is an Exhibit attached to and made a part of and incorporated by reference to the Agreement dated___________, by and between [______________________], hereinafter referred to as "CONSULTANT" and the City of Foster City, hereinafter referred to as "CITY" providing for professional services.
1. Description of the Project:
1.1 DESCRIPTION: Description of Project
2. Basic Services:
The CITY has developed a general scope of work as described below.
PAYMENTS
1. The maximum payment to CONSULTANT under this Agreement for the Project shall be:
Maximum Payment Amount
2. METHODS OF PAYMENT FOR CONSULTANT’S SERVICES AND EXPENSES:
List Methods of Payment
3. TIMES OF PAYMENTS.
List Times of Payments
PROJECTS AND SCHEDULE
List Project Schedule (IF APPLICABLE)
END OF EXHIBIT B
Item 5.4
15 EXHIBIT C
FEE SCHEDULE
Item 5.4
16 EXHIBIT D
INSURANCE FORMS
CONSULTANT shall provide, in addition to the Certificates of Insurance, original Endorsement affecting the coverages specified herein on the attached form. No substitute form will be accepted.
This is an Exhibit to, and made a part of and incorporated by reference to the Agreement dated [_____], by and between [______________________], hereinafter referred to as "Consultant”, and City of Foster City, hereinafter referred to as "City", providing for professional services.
1. Consultant's Duty to Show Proof of Insurance. Consultant, in order to protect City and its Council members, officials, agents, officers, and employees against all claims and liability for death, injury, loss and damage as a result of Consultant's acts, errors, or omissions in connection with the performance of Consultant's obligations, as required in this Agreement, shall secure and maintain insurance as described below. Consultant shall not perform any work under this Agreement until Consultant has obtained all insurance required under this section and the required certificates of insurance and all required endorsements have been filed with the City's authorized insurance representative, insurance Tracking Services Inc. (ITS). Receipt of evidence of insurance that does not comply with all applicable insurance requirements shall not constitute a waiver of the insurance requirements set forth herein. The required documents must be signed by the authorized representative of the insurance company shown on the certificate. Upon request, Consultant shall supply proof that such person is an authorized representative thereof and is authorized to bind the named underwriter(s) and their company to the coverage, limits and termination provisions shown thereon, Consultant shall promptly deliver to ITS a certificate of insurance, and all required endorsements, with respect to each renewal policy, as necessary to demonstrate the maintenance of the required insurance coverage for the term specified herein. Such certificates and endorsements shall be delivered to ITS prior to the expiration date of any policy and bear a notation evidencing payment of the premium thereof if so requested. Consultant shall immediately pay any deductibles and self-insured retentions under all required insurance policies upon the submission of any claim by Consultant or City as an additional insured.
1.1 Insurance Requirements
Commercial General Liability Insurance
Commercial General Liability Insurance including, but not limited to, Contractual Liability Insurance (specifically concerning the indemnity provisions of this Agreement with the City), Products-Completed Operations Hazard, liability for slander, false arrest and invasion of privacy arising out of professional services rendered hereunder, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of Consultant's performance of services under this Agreement. The Commercial General Liability insurance shall contain no exclusions or limitation for independent contractors working on the behalf of the named insured. Consultant shall maintain the Products-Completed Operations Hazard coverage for the longest period allowed by law following termination of this Agreement. The amount of said insurance coverage required by this Agreement shall be the policy limits, which shall be at least two million dollars ($2,000,000) each occurrence and four million dollars ($4,000,000) aggregate.
*Please note, the City will require a separate additional insured endorsement for the Commercial General Liability policy, listing the “City of Foster City, its Council/Board members, officials, agents, officers, volunteers and employees”.
Item 5.4
17 ☒ Business Automobile Liability Insurance
Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering any vehicle and/or all owned, leased, hired and nonowned vehicles used in the performance of Services pursuant to this Agreement with coverage equal to the policy limits, which shall be at least one million dollars ($1,000,000) each occurrence.
☒ Workers' Compensation Insurance
Consultant shall submit written proof that Consultant is insured against liability for workers' compensation in accordance with the provisions of section 3700 of the California Labor Code.
Consultant shall require any Subconsultants to provide workers' compensation for all of the Subconsultants' employees, unless the Subconsultants' employees are covered by the insurance afforded by Consultant. If any class of employees engaged in work or services performed under this Agreement is not covered by California Labor Code section 3700, Consultant shall provide and/or require each Subconsultant to provide adequate insurance for the coverage of employees not otherwise covered. Consultant shall also maintain employer's liability insurance with limits of one million dollars ($1,000,000) for bodily injury or disease. ☒ Professional Liability Insurance
Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, all negligent acts, errors or omissions in connection with services to be provided under this Agreement, with no exclusion for claims of one insured against another insured, with coverage equal to the policy limits, which shall not be less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) aggregate.
1.2 Self-Insured Retention
Any self-insured retentions in excess of $100,000 must be declared on the Certificate of insurance or other documentation provided to City and must be approved by the City Risk Manager.
1.3 Claims-Made Basis Coverage
If any of the insurance coverages required under this Agreement is written on a claims-made basis, Consultant, at Consultant's option, shall either (i) maintain said coverage for at least five (5) years following the termination of this Agreement with coverage extending back to the effective date of this Agreement; (ii) purchase an extended reporting period of not less than five (5) years following the termination of this Agreement; or (iii) acquire a full prior acts provision on any renewal or replacement policy.
2. City as Additional Insured
On Consultant's Commercial General Liability and Automobile policies, the City of Foster City, its Council members, officers, directors, agents, employees, and volunteers, shall be named as additional insured's, but only with respect to liability arising out of the activities of the named insured. Any endorsement shall be provided using one of the following three options: (i) on ISO form CG 20 10 1 1 85; or (ii) on ISO form CG 20 37 10 01 plus either ISO form CG 20 10 10 01 or CG 20 33 10 01; or (iii) on such other forms which provide coverage at least equal to or better than form CG 20 10 1 1 85.
3. Insurance terms and conditions:
3.1 Cancellation of Insurance
The above stated insurance coverages required to be maintained by consultant shall be maintained until the completion of all of Consultant's obligations under this Agreement except as otherwise Item 5.4
18 indicated herein. Each insurance policy supplied by consultant shall not be suspended, voided, cancelled or reduced in coverage or in limits except after ten (10) days written notice by Consultant in the case of non-payment of premiums, or thirty (30) days written notice in all other cases. This notice requirement does not waive the insurance requirements stated herein. Consultant shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits have been exhausted or upon insolvency of the insurer that issued the policy.
3.2 All insurance shall be issued by a company or companies admitted to do business in California and listed in the current "Best's Key Rating Guide" publication with a minimum rating of A-; VII Any exception to these requirements must be approved by the City Risk Manager.
3.3 If Consultant is, or becomes during the term of this Agreement, self-insured or a member of a self-insurance pool, Consultant shall provide coverage equivalent to the insurance coverages and endorsements required above. The City will not accept such coverage unless the City determines, in its sole discretion and by written acceptance, that the coverage proposed to be provided by Consultant is equivalent to the above-required coverages.
3.4 For any claims related to the Agreement, the Consultant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
3.5 Insurance coverages in the minimum amounts set forth herein shall not be construed to relieve Consultant for any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the City from taking such other actions as are available to it under any other provision of this Agreement or otherwise in law.
3.6 Failure by Consultant to maintain all such insurance in effect at all times required by this Agreement shall be a material breach of this Agreement by Consultant. City, at its sole option, may terminate this Agreement and obtain damages from Consultant resulting from said breach.
Alternatively, City may purchase such required insurance coverage, and without further notice to Consultant, City shall deduct from sums due to Consultant any premiums and associated costs advanced or paid by City for such insurance. If the balance of monies obligated to Consultant pursuant to this Agreement are insufficient to reimburse City for the premiums and any associated costs, Consultant agrees to reimburse City for the premiums and pay for all costs associated with the purchase of said insurance. Any failure by City to take this alternative action shall not relieve Consultant of its obligation to obtain and maintain the insurance coverages required by this Agreement.
3.7 Should any of the required insurance (other than errors and omissions insurance) be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defenses costs be included in such general aggregate limit, such general annual aggregate limit shall be double the occurrence or claims limit specified above.
Item 5.4
19 ATTACHED
1. Insurance Coverage Form
Item 5.4
20 EXHIBIT D
This INSURANCE COVERAGE FORM modifies, or documents insurance provided under the following:
Named Insured: Effective Work Date(s):
Description of Work/Locations/Vehicles:
ADDITIONAL INSURED: City of Foster City (CITY)
610 Foster City Boulevard, Foster City, CA 94404
Attention: _________________________________
Contract Administrator
Endorsement and Certificates of Insurance Required
The Additional Insured, its elected or appointed officers, officials, employees and volunteers are included as insureds with regard to damages and defense of claims arising from: (Check all that apply)
Insurer Policy
No.
General Liability: (a) activities performed by or on behalf of the Named Insured, (b) products and completed operations of the Named Insured, (c) premises owned, leased occupied or used by the Named Insured, and/or (d) permits issued for operations performed by the Named Insured. {Note:
MEETS OR EXCEEDS ISO Form # CG 20 10 11 85}
Auto Liability: the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Named Insured, regardless of whether liability is attributable to the Named Insured or a combination of the Named Insured and the Additional Insured, its elected or appointed officers, officials, employees or volunteers.
Other:
Certificates of Insurance Required (no endorsement needed) (Check all that apply) Insurer Policy No.
Workers Compensation: work performed by employees of the Named Insured while those employees are engaged in work under the simultaneous directions and control of the Named Insured and the Additional Insured.
Professional Liability:
PRIMARY/NON-CONTRIBUTORY: This insurance is primary and is not additional to or contributing with any other insurance carried by or for the benefit of Additional Insureds.
SEVERABILITY OF INTEREST: The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the insurer’s limit of liability.
PROVISIONS REGARDING THE INSURED'S DUTIES AFTER ACCIDENT OR LOSS: Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Additional Insured, its elected or appointed officers, officials, employees, or volunteers.
CANCELLATION NOTICE. The insurance afforded by this policy shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice (ten (10) days if canceled due to non-payment) by regular mail return receipt requested has been given to the Additional Insured. Such notice shall be addressed as shown above.
WAIVER OF SUBROGATION: The insurer(s) named above agree to waive all rights of subrogation against the CITY, its elected or appointed officers, officials, agents, volunteers, and employees for losses paid under the terms of this policy which arise from work performed by the Named Insured for the CITY.
Nothing herein contained shall vary, alter or extend any provision or condition of the Policy other than as above stated.
SIGNATURE OF INSURER OR AUTHORIZED REPRESENTATIVE OF THE INSURER I, ______________________________________________________________(print/type name), warrant that I have authority to bind the above-named insurance company and by my signature hereon do so bind this company.
SIGNATURE OF AUTHORIZED REPRESENTATIVE (original signature required) ORGANIZATION: TITLE:
ADDRESS:
TELEPHONE: ( ) DATE ISSUED:
END OF EXHIBIT D
Item 5.4
21 EXHIBIT E
COVID-19 AMENDMENT/ATTACHMENT
(Consulting Agreement Form)
This COVID-19 Amendment/Attachment amends the Agreement between the City of Foster City hereinafter called "CITY” and [______________________] (“Consultant”) dated [______________].
1. Definitions
A. The 2019 novel coronavirus and the disease it causes are collectively referred to herein as “COVID-19”.
B. A “COVID-19 Condition” is something attributable to COVID-19 not caused by the Consultant (which for purposes herein includes all subconsultants) and beyond its reasonable control including but not limited to COVID-19 Proclamations and supply chain disruptions due to COVID19, and other circumstances concerning COVID-19 not caused by the Consultant and which are beyond its reasonable control.
C. A “COVID-19 Proclamation” includes but is not limited to orders, directives and guidance concerning COVID-19 that have been issued, and which may be issued from time to time, by public agencies or regulatory bodies, the CDC or OSHA or Cal/OSHA, including without limitation the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards. Consultant acknowledges that those orders, directives and guidance may require the Project to shut down or otherwise increase the Consultant’s cost or time of performance by calling for things such as social distancing and the use of personal protective equipment. In the event of conflicting COVID-19 Proclamations, the Consultant shall follow the most applicable, restrictive and newest COVID-19 Proclamations.
D. An “Unknown COVID-19 Condition” is a COVID-19 Condition the Consultant did not know about, and reasonably should not have known about, as of the date the Consultant submitted its proposal. The requirements contained in COVID-19 Proclamations issued before submission of a proposal are not Unknown COVID-19 Conditions, and the Consultant will be deemed to have knowledge of those requirements.
E. An “Unknown COVID-19 Cost” is a cost that: (i) is solely attributable to an Unknown COVID19 Condition; (ii) is reasonable under the circumstances; (iii) is not the result of the Consultant’s failure to comply with the contract documents or a COVID-19 Proclamation; and (iv) is not the result of a subconsultants failure to comply with a COVID-19 Proclamation in connection with the performance of the Services.
2. COVID-19 Conditions and Proposal. Consultant is expected to know and is deemed to have known about COVID-19 Conditions when it submits its proposal, and COVID-19 Conditions must be accounted for in the Consultant’s price and schedule. In order to be entitled to any relief from a COVID19 Condition, the Consultant must demonstrate that the issue, cost or delay is due to an Unknown COVID-19 Condition.
3. Compliance with COVID-19 Proclamations.
A. Consultant shall comply with COVID-19 Proclamations in the performance of the Services, irrespective of when the COVID-19 Proclamations are issued, and as they pertains to performance of the Services. The cost of such compliance is non-compensable, except as otherwise expressly stated herein.
B. Consultant is responsible to ensure that its subconsultants and suppliers comply with COVID19 Proclamations at all times in connection with the performance of their Services.
4. Delay. The Consultant is entitled to a reasonable time extension for an Unknown COVID-19 Condition. Such time extension is non-compensable.
5. City Directed Suspension. The City may suspend Services due to COVID-19 health concerns, even though the Consultant may be allowed to proceed with the Services based on COVID-19 Proclamations. The City may suspend the Services for its convenience. The Consultant is entitled to a Item 5.4
22 time extension for a City Directed Suspension, and the contract amount will be equitably adjusted if and to the extent Consultant incurs increased costs that are Unknown COVID-19 Costs.
6. Compensation for COVID-19 Costs. City will reimburse the Consultant for costs attributable to COVID-19, and which are not included in the schedule of values, only if the cost is an Unknown COVID19 Cost.
7. Safe Work Practices. Consultant shall implement safe work practices recommended by CDC or OSHA or Cal/OSHA, which may include, inter alia, screening all employees, subconsultants, or others (“worker(s)”) at all locations where Services are performed for signs and symptoms of COVID-19; adopting staggered work schedules, e.g., providing alternating workdays or extra shifts, to reduce the total number of employees on a site at any given time and to ensure physical distancing; identifying choke points where workers are forced to stand together, such as hallways and elevators, ingress and egress points, break areas, and buses, and implement policies to maintain social distancing; coordinating deliveries in line with the employer's minimal contact and cleaning protocols; and instituting a rigorous housekeeping program to reduce dust levels at all exterior locations. Consultant remains fully responsible for following and complying with changes to recommended safe work practices from time to time.
8. Monitoring and Reporting. City may require the Consultant to actively monitor the health of its workers through temperature checks and questionnaires of major COVID-19 symptoms, including but not limited to cough, fever above 100.4 degrees Fahrenheit and shortness of breath. Consultant shall immediately report to City any outbreaks of COVID-19 among its workers. The Consultant shall not knowingly allow any worker who has tested positive with COVID-19 to enter a City building. In the event of an outbreak or an exposure to COVID-19, the City may impose appropriate mitigation strategies which may be in consultation with the public health officer.
9. Conflicts. In the event of an inconsistency between this COVID-19 Amendment and the Agreement, this Addendum shall control.
IN WITNESS WHEREOF, the City and Consultant have executed this Covid-19 Amendment as of the date set forth above.
CONSULTANT: CITY:
________________________ ____________________________
Signature Signature
________________________ ______________________________ [__________________] [___________________], Mayor
END OF EXHIBIT E
Item 5.4
1 MASTER PROFESSIONAL SERVICES AGREEMENT
FOR
ECONOMIC AND FISCAL ANALYSIS SERVICES
This Agreement is made and entered into as of the 22nd day of September, 2026 by and between the City of Foster City hereinafter called "CITY" and Harris & Associates, Inc. hereinafter called "CONSULTANT".
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
WHEREAS, CITY desires to retain CONSULTANT to provide professional economic and fiscal analysis services and related consulting services; WHEREAS, It is anticipated that, as a need arises for CONSULTANT to provide services, CITY will issue Task Orders to CONSULTANT (in a form substantially similar to that set forth in Exhibit “A,” attached hereto and incorporated by reference which more particularly describes the scope of services to be performed);
WHEREAS, In reliance upon CONSULTANT's documentation of its qualifications, the CITY finds that CONSULTANT has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested services.
WHEREAS, That CONSULTANT is specially trained, experienced and competent to perform and has agreed to provide such services;
NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties hereby agree as follows:
TERMS AND CONDITIONS
1. Services. The services to be performed by CONSULTANT under this Agreement shall include those services set forth in each Task Order and Exhibit “B,” Scope of Services, which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein.
Performance of the work specified in said Exhibit B and each Task Order is hereby made an obligation of CONSULTANT under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
Where in conflict, the terms of this Agreement supersede and prevail over any terms set forth in Exhibit B and in each Task Order.
Item 5.4
2 1. Term; Termination.
(a) The term of this Agreement shall commence upon the date hereinabove written and shall expire upon completion of performance of services hereunder by CONSULTANT. Initial contract period shall be from September 22, 2026 and expires on September 22, 2031 Renewal shall be by mutual consent of CONSULTANT AND CITY as approved by the City Council Board. CONSULTANT shall not commence Services or work until a Notice to Proceed is issued by CITY.
(b) Notwithstanding the provisions of (a) above, CITY may with or without cause, direct CONSULTANT to suspend, delay or interrupt Services, in whole or in part, for such periods of time as CITY may determine in its sole discretion.
(c) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for default, should CONSULTANT commit a material breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days of the date of CITY’s written notice to CONSULTANT demanding such cure, in which case CONSULTANT shall be liable to CITY for direct damages actually incurred by CITY to the extent caused by CONSULTANT’s uncured material breach. (d) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for convenience, by providing no less than seven (7) days’ written notice, whenever CITY determines that such termination is in CITY’s best interests, in which case CONSULTANT shall be entitled to recover its costs expended up to the termination date plus reasonable profit thereon to the termination date as this Agreement would otherwise provide, but may recover no other cost, damage or expense.
CONSULTANT shall continue its work throughout the course of any dispute, and CONSULTANT’s failure to continue work during a dispute shall be a material breach of this Agreement.
2. Compensation; Expenses; Payment. CITY shall compensate CONSULTANT for all services performed by CONSULTANT hereunder in an amount based upon CONSULTANT’s hourly rates during the time of the performance of said services. A copy of CONSULTANT’s hourly rates for which services hereunder shall be performed are set forth in CONSULTANT’s fee schedule marked Exhibit “C” hereof, attached hereto and by this reference incorporated herein.
Notwithstanding the foregoing, the combined total of compensation and reimbursement of costs payable hereunder shall not exceed the total amount identified in all Task Orders issued by the City against this agreement. The Consultant shall only be paid for services performed under this Agreement to the extent authorized by written Task Order. No Item 5.4
3 overhead or other expenses can be recovered for interim periods when the Consultant’s services are not utilized by the City. Invoices for amounts in excess of each Task Order shall not be paid unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by CITY’s Manager (for contracts less than $50,000) or CITY Board (for contracts $50,000 or more) evidenced by motion duly made and carried and a written contract amendment having been executed.
Compensation and reimbursement of costs and expenses hereunder shall be payable upon monthly billing therefor by CONSULTANT to CITY, which billing shall include an itemized statement, briefly describing by task and labor category or cost/expense items billed. Final payment will be made when all Services required under this Agreement have been completed to the reasonable satisfaction of CITY including, without limitation, CONSULTANT's transmittal of all deliverables to CITY required by EXHIBIT B and each Task Order.
CITY shall not incur any charges under this Agreement, nor shall any payments become due to CONSULTANT for any payment period on the Project, until CITY receives all deliverables required under Exhibit B and each Task Order, SCOPE OF WORK AND SCHEDULE, for the payment period (if any) and reasonably accepts such deliverables as meeting the requirements of this Agreement, provided, however, that CONSULTANT shall be entitled to monthly payment for Services properly performed and costs incurred during the applicable billing period, whether or not such Services result in a completed deliverable during that billing period. CITY shall not unreasonably withhold, condition, or delay acceptance of deliverables or payment of undisputed amounts.
In cases where CONSULTANT has partially completed one or more deliverables due during a payment period, and if CONSULTANT demonstrates diligent progress thereon, then CITY may make a partial progress payment based upon percentage completion of the partially completed deliverables and diligent progress but taking into account any adverse impacts upon CITY. CITY shall not be liable for, and CONSULTANT shall not be entitled to, any payment for Services performed before this Agreement's execution.
CITY will not withhold any Federal or State income taxes or Social Security tax from any payments made by CITY to CONSULTANT under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums is the sole responsibility of CONSULTANT.
CITY has no responsibility or liability for payment of CONSULTANT’s taxes or assessments.
Item 5.4
4 4. Performance of Services. No work shall be performed under this Agreement except to the extent the CONSULTANT receives a Task Order from the CITY’s Authorized Representative. The CITY will request proposals from the CONSULTANT for each Task Order when services are needed.
CONSULTANT shall respond with a scope and cost proposal in a reasonably prompt manner, no later than fifteen (15) calendar days after CITY’s request. Such proposal shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefor, the time of performance thereof, and such other matters as the parties deem appropriate for the accomplishment of such services. Upon the approval of the terms of the proposal by CITY’s Manager (for contracts less than $50,000) or CITY Council (for contracts $50,000 or more) by motion duly made and carried, the CITY's Authorized Representative shall issue a Task Order against this agreement. CONSULTANT shall commence performance and shall complete all required services no later than the dates set forth in accordance with the approved Task Order. Except to the extent modified by written amendment, all other terms and conditions of this Agreement shall be deemed incorporated in each such Task Order.
5. Records and Audit. CONSULTANT shall keep and maintain accurate records of all time expended and costs and expenses incurred relating to services to be performed by CONSULTANT hereunder. Said records shall be available to CITY for review and copying during regular business hours at CONSULTANT’s place of business or as otherwise agreed upon by the parties.
CONSULTANT shall prepare and maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of four (4) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photo static, photographing and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof.
Any authorized representative of CITY shall have access to any writings as defined above for the purposes of making audit, evaluation, examination, excerpts and transcripts during the period such records are to be maintained by CONSULTANT. Further, CITY has the right at all reasonable times to audit, inspect or otherwise evaluate the services and work performed or being performed under this Agreement.
Item 5.4
5 6. Authorization. This Agreement becomes effective when endorsed by both parties in the space provided below.
7. Reliance on Professional Skill of CONSULTANT. CONSULTANT represents that it has the necessary professional skills to perform the services required and the CITY shall rely on such skills of the CONSULTANT to do and perform the work. In performing services hereunder CONSULTANT shall adhere to the standards generally prevailing for the performance of expert consulting services similar to those to be performed by CONSULTANT hereunder.
CONSULTANT represents that it has reviewed Exhibit B and that in its professional judgment the Services to be performed under this Agreement can be performed for a fee within the maximum amount set forth in the Compensation Schedule established in Exhibit B.
CONSULTANT represents that it possesses all necessary training, licenses, certificates, and permits required by the federal, state, CITY or municipal governments to perform the Services. Such licenses, certificates and permits must be valid at the time CONSULTANT enters into this Agreement and must be maintained during the term of this Agreement in full force and effect. Licenses, certificates and permits may include but are not limited to driver’s licenses, professional licenses or certificates and business licenses. Such licenses, certificates and permits will be procured and maintained in force by CONSULTANT at no expense to CITY.
CONSULTANT represents that its performance of the Services will conform to the standards of practice of a professional having experience and expertise in performing professional services of like nature and complexity of the Services working on similar, successfully completed projects.
The granting of any progress payment by CITY, or the receipt thereof by CONSULTANT, or any inspection, review, approval or oral statement by any representative of CITY or any other governmental entity, shall in no way waive or limit the obligations in this Paragraph 7 or lessen the liability of CONSULTANT for unsatisfactory Services, including but not limited to cases where the defective or below standard Services may not have been apparent or detected at the time of such payment, inspection, review or approval.
CONSULTANT’s services are advisory and technical in nature. CITY retains sole responsibility for legal determinations, policy decisions, public notices, hearings, adoption of fees or ordinances, and implementation of any fiscal, nexus, or economic analysis. CONSULTANT does not provide legal advice.
Item 5.4
6 8. Documents. All documents, plans, drawings, renderings, and other papers, or copies thereof, as finally rendered, prepared by CONSULTANT pursuant to the terms of this Agreement, shall, upon preparation and delivery to CITY, become the property of CITY provided that CONSULTANT retains ownership of its pre-existing materials, templates, tools, models, formulas, methodologies, software, know-how, and internal work papers.
CONSULTANT grants CITY a nonexclusive license to use the final deliverables for the purposes for which they were prepared.
Notwithstanding the above, computer software (including without limitation financial models, compilations of formulas and spreadsheet models) and products derived from such software, prepared by CONSULTANT are Instruments of Service of CONSULTANT and shall remain the property of CONSULTANT. CONSULTANT shall likewise retain all common law, statutory and other reserved rights, including the copyright thereto.
However, the fixed final work product delivered by CONSULTANT shall belong to the CITY.
9. Relationship of Parties. It is understood that the relationship of CONSULTANT to the CITY is that of an independent contractor and all persons working for or under the direction of CONSULTANT are its agents or employees and not agents or employees of the CITY.
10. Schedule. CONSULTANT shall adhere to the schedule set forth in Exhibit B; provided, that CITY shall grant reasonable extensions of time for the performance of such services occasioned by governmental reviews of CONSULTANT’s work product or other unavoidable delays; provided, further, that such unavoidable delay shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, CONSULTANT’s officers or employees.
CONSULTANT acknowledges the importance to CITY of CITY’s Project schedule and agrees to put forth its best professional efforts to perform its services under this Agreement in a manner consistent with that schedule.
11. Indemnity.
(a) To the fullest extent allowed by law (including without limitation California Civil Code Sections 2782 and 2782.8), CONSULTANT shall defend, indemnify, and hold harmless City of Foster City, its officers, directors, officials, agents, employees, and volunteers (collectively, “Indemnitees”) from and against any and all claims, suits, expenses, liability, cause of action, loss, cost, damage, injury (including, without limitation, economic harm, injury to or death of any person, including an employee of CONSULTANT or its Subconsultants), of every kind, nature, and description, at law or equity, (including without limitation, incidental and Item 5.4
7 consequential damages, court costs, attorneys’ fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) (collectively “Liabilities”), that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of CONSULTANT, any Subconsultant, anyone directly or indirectly employed or retained by them, or anyone that they control.
CONSULTANT’s obligations to indemnify, defend, hold harmless the Indemnitees shall not apply to the extent that such Liabilities are caused in whole or in part by the sole negligence, active negligence, or willful misconduct of such Indemnitee but shall apply to all other Liabilities.
If CONSULTANT is a “design professional,” as defined in California Civil Code Section 2782.8(c), CONSULTANT shall indemnify, defend, and hold the Indemnitees harmless against Liability only to the extent such Liability arises out of, pertains to, or relates to CONSULTANT’s negligence, recklessness, or willful misconduct. In such an event, the cost to defend charged to CONSULTANT shall not exceed CONSULTANT’s proportionate percentage of fault.
(b) Intellectual Property Indemnification. CONSULTANT represents that professional services provided by CONSULTANT pursuant to this Agreement does not infringe on any other copyrighted work or intellectual property owned by others. CONSULTANT shall defend, indemnify and hold harmless CITY from all Liabilities, that may at any time arise for any infringement of the patent rights, copyright, trade secret, trade name, trademark, service mark or any other proprietary right of any person or persons in arising from or relating to CONSULTANT’s services provided to CITY under this Agreement.
(c) CONSULTANT shall place in its agreements with Subconsultants and cause its Subconsultants to agree to the indemnification and insurance provisions in this Agreement in favor of CITY and the Indemnitees in the exact form and substance as those contained in this Agreement. (d) CITY acknowledges that the discovery, presence, handling or removal of asbestos products, polychlorinated biphenyl (PCB) or other hazardous substances which may presently exist at the any Project site is outside of CONSULTANT’s responsibilities and is not included in the scope of Services CONSULTANT is to perform nor included in CONSULTANT’s insurance. CITY shall hire hazardous materials consultant if the Project requires the testing or remediation of hazardous substances.
CONSULTANT shall not be responsible or be involved in any way with the discovery, presence, handling or removal of such materials.
CONSULTANT shall, however, be responsible for the coordination of CONSULTANT’s services and work with the work of CITY’s hazardous materials consultants.
Item 5.4
8 (e) Duty to Cooperate. CONSULTANT shall notify CITY immediately in writing of any claim or damage related to activities or services performed under this Agreement. CONSULTANT shall cooperate with CITY in the investigation and disposition of all Liabilities arising out of the activities or services under this Agreement. Without limiting the foregoing, CONSULTANT shall take all steps necessary to assist CITY in the defense of any and all Liabilities brought by a contractor hired to construct the Project regarding any errors, flaws, and/or omissions in the plans or specifications of the Project. Any additional services or work under this paragraph shall be compensated as Additional Services.
12. Insurance. Prior to execution of this Agreement, CONSULTANT shall furnish to CITY Certificates of Insurance showing satisfactory proof that it maintains the insurance required by this Contract as set forth in EXHIBIT D, Insurance, which are attached and made a part of this Agreement.
CONSULTANT shall maintain all required insurance throughout the term of this Agreement and as otherwise provided in EXHIBIT D. In the event CONSULTANT fails to maintain any required insurance, and notwithstanding Paragraph 3 above, CITY may (but is not obligated to) purchase such insurance and deduct or retain premium amounts from any sums due CONSULTANT under this Agreement (or CONSULTANT shall promptly reimburse CITY for such expense).
CONSULTANT shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following completion of this project or service. In the event CONSULTANT fails to obtain or maintain completed operations coverage as required by this Agreement, the CITY at its sole discretion may purchase the coverage required and the cost will be paid by CONSULTANT.
13. WORKERS' COMPENSATION. CONSULTANT certifies that he is aware of the provisions of the Labor Code of the State of California 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 CONSULTANT certifies that he will comply with such provisions before commencing the performance of the work of this agreement.
14. NON-DISCRIMINATION. The CONSULTANT will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The CONSULTANT will take affirmative action to ensure that applicants are employed, and the employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following:
employment, advancement, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of Item 5.4
9 compensation, and selection for training, including apprenticeship. The CONSULTANT shall at all times be in compliance with the requirements of the Federal Americans With Disabilities Act (Public Law 101-336) which prohibits discrimination on the basis of disability by public entities. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause.
The CONSULTANT complies with all Equal Employment Opportunity ("EEO") and non-discrimination requirements pursuant to applicable State of California and federal statutes.
15. Notice. All notices required by this Agreement shall be given to the CITY and CONSULTANT in writing, by first class mail, postage prepaid, addressed as follows:
CITY: City of Foster City
610 Foster City Boulevard
Foster City, CA 94404-2299
Attention: Thai-Chau Le
CONSULTANT: Harris & Associates, Inc.
2400 Del Paso Rd., Suite 210
Sacramento, CA 95834
Attention: Megan Quinn
16. Assignment. This is an agreement for the personal services of CONSULTANT. CITY has relied upon the skills, knowledge, experience and training of CONSULTANT and the CONSULTANT’s firm, associates and employees as an inducement to enter into this Agreement.
CONSULTANT shall not assign or subcontract this Agreement without CITY’s express written consent. Further, CONSULTANT shall not assign any monies due or to become due under this Agreement without CITY’s prior written consent.
17. Amendments. This Agreement may be amended or modified only by written agreement signed by both parties.
18. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
19. Governing Law. This Agreement shall be deemed to have been executed in the County of San Mateo, California. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Any suit or action initiated Item 5.4
10 by either party shall be brought in the County of San Mateo, California unless the parties agree otherwise in a written amendment to this Agreement. In the event of litigation between the parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney’s fees and expenses of litigation of the successful party.
20. Mediation. Should any dispute arise out of this Agreement, the parties shall meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement and each party shall bear its own legal costs.
21. Conflict of Interest. CONSULTANT may serve other clients, but none who conduct business that would place CONSULTANT in an actual, nonwaivable "conflict of interest" as that term is defined in State law.
22. Liability of CITY. Except as provided in Exhibit B, Services to be Provided by CONSULTANT and Exhibit D, Insurance, CITY's obligations under this Agreement shall be limited to the payment of the compensation provided for in Paragraphs 1, 3, and 4 of this Agreement,
Notwithstanding any other provision of this Agreement, in no event shall CITY be liable, regardless of whether any claim is based on contract, tort or otherwise, for any special, consequential, indirect or incidental damages, lost profits or revenue, arising out of or in connection with this Agreement, the Services, or the Project.
CITY shall not be responsible for any damage to persons or property as a result of the use, misuse or failure of any equipment used by CONSULTANT, or by any of its employees, even though such equipment be furnished, rented or loaned to CONSULTANT by CITY. The acceptance or use of such equipment by CONSULTANT or any of its employees shall be construed to mean that CONSULTANT accepts full responsibility for and shall exonerate, indemnify, defend and save harmless CITY from and against any and all claims for any damage or injury of any type, including attorneys' fees, arising from the use, misuse or failure of such equipment, whether such damage be to the CONSULTANT, its employees, CITY employees or third parties, or to property belonging to any of the above.
Nothing in this Agreement shall constitute a waiver or limitation of any right or remedy, whether in equity or at law, which CITY or CONSULTANT may have under this Agreement or any applicable law. All rights and remedies Item 5.4
11 of CITY or CONSULTANT, whether under this Agreement or other applicable law, shall be cumulative.
23. Confidentiality. Any non-public confidential information, whether proprietary or not, made known to or discovered by CONSULTANT during the performance of or in connection with this Agreement for CITY, will be kept confidential and not be disclosed to any other person. CONSULTANT will immediately notify CITY in writing if it is requested to disclose any information made known to or discovered by during the performance of or in connection with this Agreement except to the extent disclosure is required by law, court order, professional obligations, insurer requirements, or the California Public Records Act.
These confidentiality service provisions and limitations shall remain fully effective indefinitely after termination of services and work to CITY hereunder.
24. Waiver of Default. Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below.
25. Entire Agreement. This Agreement, including Exhibits A, B, C, D and E, comprises the entire Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf.
CITY OF FOSTER CITY
Dated: _________________________________
Art Kiesel, Mayor
ATTEST:
Dated: ________________________________
Priscilla Schaus, City Clerk Secretary
Item 5.4
12 APPROVED AS TO FORM
Dated:
Benjamin Stock,
City Attorney Legal Counsel
CONSULTANT
Dated:
Megan Quinn,
Senior Director, Municipal & District Finance
Item 5.4
13 EXHIBIT A
SAMPLE TASK ORDER
TASK ORDER NO. [INSERT TASK No.]
TO MASTER ECONOMIC AND FISCAL ANALYSIS SERVICES AGREEMENT This Task Order No. _______ ("Task Order") is made and entered into by and between the City of Foster City (“City”) and [______________________] ("Consultant").
RECITAL
A. City and Consultant entered into an agreement entitled [______________________] ("Agreement"), by which the Consultant agreed to perform ___________________________________________________________ services in accordance with Task Orders issued by the City.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. INCORPORATION BY REFERENCE. This Task Order hereby incorporates by reference all items and conditions set forth in the Agreement.
2. SCOPE OFT ASK ORDER. Consultant shall perform the services described in Exhibit "B," attached hereto and incorporated herein by reference, in accordance with the terms and conditions of the Agreement.
3. PAYMENT. For services performed by Consultant in accordance with this Task Order, City will compensate Consultant in accordance with the terms and conditions of the Agreement, in an amount not to exceed $_______________(including all hourly billings as well as reimbursable costs.
4. SIGNATURES. The individuals executing this Task Order represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Task Order on behalf of the respective legal entities of the Consultant and the City.
IN WITNESS WHEREOF, the City and Consultant do hereby agree to the full performance of the terms set forth herein.
City of Foster City Consultant
_____________________________ _________________________ By:___________________________ By: [______________________] Title: City Manager if < $50,000 Title: [_____________________] Mayor/President if > $50,000
Date: _________________________ Date: _____________________ Tax ID No.: ______________
Item 5.4
14 EXHIBIT B
SERVICES TO BE PROVIDED, PAYMENTS, PROJECTS, AND SCHEDULE, [______________________] SERVICES
[EITHER COMPLETE EXHIBIT A OR ATTACH A PROPOSAL/SCOPE OF WORK THAT CONTAINS ALL THE INFORMATION BELOW AND DELETE THE TEXT BELOW FOR EACH TASK ORDER]
SERVICES TO BE PROVIDED
This is an Exhibit attached to and made a part of and incorporated by reference to the Agreement dated___________, by and between [______________________], hereinafter referred to as "CONSULTANT" and the City of Foster City, hereinafter referred to as "CITY" providing for professional services.
1. Description of the Project:
1.1 DESCRIPTION: Description of Project
2. Basic Services:
The CITY has developed a general scope of work as described below.
PAYMENTS
1. The maximum payment to CONSULTANT under this Agreement for the Project shall be:
Maximum Payment Amount
2. METHODS OF PAYMENT FOR CONSULTANT’S SERVICES AND EXPENSES:
List Methods of Payment
3. TIMES OF PAYMENTS.
List Times of Payments
PROJECTS AND SCHEDULE
List Project Schedule (IF APPLICABLE)
END OF EXHIBIT B
Item 5.4
15 EXHIBIT C
FEE SCHEDULE
Item 5.4
16 EXHIBIT D
INSURANCE FORMS
CONSULTANT shall provide, in addition to the Certificates of Insurance, original Endorsement affecting the coverages specified herein on the attached form. No substitute form will be accepted.
This is an Exhibit to, and made a part of and incorporated by reference to the Agreement dated [_____], by and between [______________________], hereinafter referred to as "Consultant”, and City of Foster City, hereinafter referred to as "City", providing for professional services.
1. Consultant's Duty to Show Proof of Insurance. Consultant, in order to protect City and its Council members, officials, agents, officers, and employees against all claims and liability for death, injury, loss and damage as a result of Consultant's acts, errors, or omissions in connection with the performance of Consultant's obligations, as required in this Agreement, shall secure and maintain insurance as described below. Consultant shall not perform any work under this Agreement until Consultant has obtained all insurance required under this section and the required certificates of insurance and all required endorsements have been filed with the City's authorized insurance representative, insurance Tracking Services Inc. (ITS). Receipt of evidence of insurance that does not comply with all applicable insurance requirements shall not constitute a waiver of the insurance requirements set forth herein. The required documents must be signed by the authorized representative of the insurance company shown on the certificate. Upon request, Consultant shall supply proof that such person is an authorized representative thereof and is authorized to bind the named underwriter(s) and their company to the coverage, limits and termination provisions shown thereon, Consultant shall promptly deliver to ITS a certificate of insurance, and all required endorsements, with respect to each renewal policy, as necessary to demonstrate the maintenance of the required insurance coverage for the term specified herein. Such certificates and endorsements shall be delivered to ITS prior to the expiration date of any policy and bear a notation evidencing payment of the premium thereof if so requested. Consultant shall immediately pay any deductibles and self-insured retentions under all required insurance policies upon the submission of any claim by Consultant or City as an additional insured.
1.1 Insurance Requirements
Commercial General Liability Insurance
Commercial General Liability Insurance including, but not limited to, Contractual Liability Insurance (specifically concerning the indemnity provisions of this Agreement with the City), Products-Completed Operations Hazard, liability for slander, false arrest and invasion of privacy arising out of professional services rendered hereunder, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of Consultant's performance of services under this Agreement. The Commercial General Liability insurance shall contain no exclusions or limitation for independent contractors working on the behalf of the named insured. Consultant shall maintain the Products-Completed Operations Hazard coverage for the longest period allowed by law following termination of this Agreement. The amount of said insurance coverage required by this Agreement shall be the policy limits, which shall be at least two million dollars ($2,000,000) each occurrence and four million dollars ($4,000,000) aggregate.
*Please note, the City will require a separate additional insured endorsement for the Commercial General Liability policy, listing the “City of Foster City, its Council/Board members, officials, agents, officers, volunteers and employees”.
Item 5.4
17 ☒ Business Automobile Liability Insurance
Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering any vehicle and/or all owned, leased, hired and nonowned vehicles used in the performance of Services pursuant to this Agreement with coverage equal to the policy limits, which shall be at least one million dollars ($1,000,000) each occurrence.
☒ Workers' Compensation Insurance
Consultant shall submit written proof that Consultant is insured against liability for workers' compensation in accordance with the provisions of section 3700 of the California Labor Code.
Consultant shall require any Subconsultants to provide workers' compensation for all of the Subconsultants' employees, unless the Subconsultants' employees are covered by the insurance afforded by Consultant. If any class of employees engaged in work or services performed under this Agreement is not covered by California Labor Code section 3700, Consultant shall provide and/or require each Subconsultant to provide adequate insurance for the coverage of employees not otherwise covered. Consultant shall also maintain employer's liability insurance with limits of one million dollars ($1,000,000) for bodily injury or disease. ☒ Professional Liability Insurance
Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, all negligent acts, errors or omissions in connection with services to be provided under this Agreement, with no exclusion for claims of one insured against another insured, with coverage equal to the policy limits, which shall not be less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) aggregate.
1.2 Self-Insured Retention
Any self-insured retentions in excess of $100,000 must be declared on the Certificate of insurance or other documentation provided to City and must be approved by the City Risk Manager.
1.3 Claims-Made Basis Coverage
If any of the insurance coverages required under this Agreement is written on a claims-made basis, Consultant, at Consultant's option, shall either (i) maintain said coverage for at least five (5) years following the termination of this Agreement with coverage extending back to the effective date of this Agreement; (ii) purchase an extended reporting period of not less than five (5) years following the termination of this Agreement; or (iii) acquire a full prior acts provision on any renewal or replacement policy.
2. City as Additional Insured
On Consultant's Commercial General Liability and Automobile policies, the City of Foster City, its Council members, officers, directors, agents, employees, and volunteers, shall be named as additional insured's, but only with respect to liability arising out of the activities of the named insured. Any endorsement shall be provided using one of the following three options: (i) on ISO form CG 20 10 1 1 85; or (ii) on ISO form CG 20 37 10 01 plus either ISO form CG 20 10 10 01 or CG 20 33 10 01; or (iii) on such other forms which provide coverage at least equal to or better than form CG 20 10 1 1 85.
3. Insurance terms and conditions:
3.1 Cancellation of Insurance
The above stated insurance coverages required to be maintained by consultant shall be maintained until the completion of all of Consultant's obligations under this Agreement except as otherwise Item 5.4
18 indicated herein. Each insurance policy supplied by consultant shall not be suspended, voided, cancelled or reduced in coverage or in limits except after ten (10) days written notice by Consultant in the case of non-payment of premiums, or thirty (30) days written notice in all other cases. This notice requirement does not waive the insurance requirements stated herein. Consultant shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits have been exhausted or upon insolvency of the insurer that issued the policy.
3.2 All insurance shall be issued by a company or companies admitted to do business in California and listed in the current "Best's Key Rating Guide" publication with a minimum rating of A-; VII Any exception to these requirements must be approved by the City Risk Manager.
3.3 If Consultant is, or becomes during the term of this Agreement, self-insured or a member of a self-insurance pool, Consultant shall provide coverage equivalent to the insurance coverages and endorsements required above. The City will not accept such coverage unless the City determines, in its sole discretion and by written acceptance, that the coverage proposed to be provided by Consultant is equivalent to the above-required coverages.
3.4 For any claims related to the Agreement, the Consultant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
3.5 Insurance coverages in the minimum amounts set forth herein shall not be construed to relieve Consultant for any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the City from taking such other actions as are available to it under any other provision of this Agreement or otherwise in law.
3.6 Failure by Consultant to maintain all such insurance in effect at all times required by this Agreement shall be a material breach of this Agreement by Consultant. City, at its sole option, may terminate this Agreement and obtain damages from Consultant resulting from said breach.
Alternatively, City may purchase such required insurance coverage, and without further notice to Consultant, City shall deduct from sums due to Consultant any premiums and associated costs advanced or paid by City for such insurance. If the balance of monies obligated to Consultant pursuant to this Agreement are insufficient to reimburse City for the premiums and any associated costs, Consultant agrees to reimburse City for the premiums and pay for all costs associated with the purchase of said insurance. Any failure by City to take this alternative action shall not relieve Consultant of its obligation to obtain and maintain the insurance coverages required by this Agreement.
3.7 Should any of the required insurance (other than errors and omissions insurance) be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defenses costs be included in such general aggregate limit, such general annual aggregate limit shall be double the occurrence or claims limit specified above.
Item 5.4
19 ATTACHED
1. Insurance Coverage Form
Item 5.4
20 EXHIBIT D
This INSURANCE COVERAGE FORM modifies, or documents insurance provided under the following:
Named Insured: Effective Work Date(s):
Description of Work/Locations/Vehicles:
ADDITIONAL INSURED: City of Foster City (CITY)
610 Foster City Boulevard, Foster City, CA 94404
Attention: _________________________________
Contract Administrator
Endorsement and Certificates of Insurance Required
The Additional Insured, its elected or appointed officers, officials, employees and volunteers are included as insureds with regard to damages and defense of claims arising from: (Check all that apply)
Insurer Policy
No.
General Liability: (a) activities performed by or on behalf of the Named Insured, (b) products and completed operations of the Named Insured, (c) premises owned, leased occupied or used by the Named Insured, and/or (d) permits issued for operations performed by the Named Insured. {Note:
MEETS OR EXCEEDS ISO Form # CG 20 10 11 85}
Auto Liability: the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Named Insured, regardless of whether liability is attributable to the Named Insured or a combination of the Named Insured and the Additional Insured, its elected or appointed officers, officials, employees or volunteers.
Other:
Certificates of Insurance Required (no endorsement needed) (Check all that apply) Insurer Policy No.
Workers Compensation: work performed by employees of the Named Insured while those employees are engaged in work under the simultaneous directions and control of the Named Insured and the Additional Insured.
Professional Liability:
PRIMARY/NON-CONTRIBUTORY: This insurance is primary and is not additional to or contributing with any other insurance carried by or for the benefit of Additional Insureds.
SEVERABILITY OF INTEREST: The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the insurer’s limit of liability.
PROVISIONS REGARDING THE INSURED'S DUTIES AFTER ACCIDENT OR LOSS: Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Additional Insured, its elected or appointed officers, officials, employees, or volunteers.
CANCELLATION NOTICE. The insurance afforded by this policy shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice (ten (10) days if canceled due to non-payment) by regular mail return receipt requested has been given to the Additional Insured. Such notice shall be addressed as shown above.
WAIVER OF SUBROGATION: The insurer(s) named above agree to waive all rights of subrogation against the CITY, its elected or appointed officers, officials, agents, volunteers, and employees for losses paid under the terms of this policy which arise from work performed by the Named Insured for the CITY.
Nothing herein contained shall vary, alter or extend any provision or condition of the Policy other than as above stated.
SIGNATURE OF INSURER OR AUTHORIZED REPRESENTATIVE OF THE INSURER I, ______________________________________________________________(print/type name), warrant that I have authority to bind the above-named insurance company and by my signature hereon do so bind this company.
SIGNATURE OF AUTHORIZED REPRESENTATIVE (original signature required) ORGANIZATION: TITLE:
ADDRESS:
TELEPHONE: ( ) DATE ISSUED:
END OF EXHIBIT D
Item 5.4
21 EXHIBIT E
COVID-19 AMENDMENT/ATTACHMENT
(Consulting Agreement Form)
This COVID-19 Amendment/Attachment amends the Agreement between the City of Foster City hereinafter called "CITY” and [______________________] (“Consultant”) dated [______________].
1. Definitions
A. The 2019 novel coronavirus and the disease it causes are collectively referred to herein as “COVID-19”.
B. A “COVID-19 Condition” is something attributable to COVID-19 not caused by the Consultant (which for purposes herein includes all subconsultants) and beyond its reasonable control including but not limited to COVID-19 Proclamations and supply chain disruptions due to COVID19, and other circumstances concerning COVID-19 not caused by the Consultant and which are beyond its reasonable control.
C. A “COVID-19 Proclamation” includes but is not limited to orders, directives and guidance concerning COVID-19 that have been issued, and which may be issued from time to time, by public agencies or regulatory bodies, the CDC or OSHA or Cal/OSHA, including without limitation the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards. Consultant acknowledges that those orders, directives and guidance may require the Project to shut down or otherwise increase the Consultant’s cost or time of performance by calling for things such as social distancing and the use of personal protective equipment. In the event of conflicting COVID-19 Proclamations, the Consultant shall follow the most applicable, restrictive and newest COVID-19 Proclamations.
D. An “Unknown COVID-19 Condition” is a COVID-19 Condition the Consultant did not know about, and reasonably should not have known about, as of the date the Consultant submitted its proposal. The requirements contained in COVID-19 Proclamations issued before submission of a proposal are not Unknown COVID-19 Conditions, and the Consultant will be deemed to have knowledge of those requirements.
E. An “Unknown COVID-19 Cost” is a cost that: (i) is solely attributable to an Unknown COVID19 Condition; (ii) is reasonable under the circumstances; (iii) is not the result of the Consultant’s failure to comply with the contract documents or a COVID-19 Proclamation; and (iv) is not the result of a subconsultants failure to comply with a COVID-19 Proclamation in connection with the performance of the Services.
2. COVID-19 Conditions and Proposal. Consultant is expected to know and is deemed to have known about COVID-19 Conditions when it submits its proposal, and COVID-19 Conditions must be accounted for in the Consultant’s price and schedule. In order to be entitled to any relief from a COVID19 Condition, the Consultant must demonstrate that the issue, cost or delay is due to an Unknown COVID-19 Condition.
3. Compliance with COVID-19 Proclamations.
A. Consultant shall comply with COVID-19 Proclamations in the performance of the Services, irrespective of when the COVID-19 Proclamations are issued, and as they pertains to performance of the Services. The cost of such compliance is non-compensable, except as otherwise expressly stated herein.
B. Consultant is responsible to ensure that its subconsultants and suppliers comply with COVID19 Proclamations at all times in connection with the performance of their Services.
4. Delay. The Consultant is entitled to a reasonable time extension for an Unknown COVID-19 Condition. Such time extension is non-compensable.
5. City Directed Suspension. The City may suspend Services due to COVID-19 health concerns, even though the Consultant may be allowed to proceed with the Services based on COVID-19 Proclamations. The City may suspend the Services for its convenience. The Consultant is entitled to a Item 5.4
22 time extension for a City Directed Suspension, and the contract amount will be equitably adjusted if and to the extent Consultant incurs increased costs that are Unknown COVID-19 Costs.
6. Compensation for COVID-19 Costs. City will reimburse the Consultant for costs attributable to COVID-19, and which are not included in the schedule of values, only if the cost is an Unknown COVID19 Cost.
7. Safe Work Practices. Consultant shall implement safe work practices recommended by CDC or OSHA or Cal/OSHA, which may include, inter alia, screening all employees, subconsultants, or others (“worker(s)”) at all locations where Services are performed for signs and symptoms of COVID-19; adopting staggered work schedules, e.g., providing alternating workdays or extra shifts, to reduce the total number of employees on a site at any given time and to ensure physical distancing; identifying choke points where workers are forced to stand together, such as hallways and elevators, ingress and egress points, break areas, and buses, and implement policies to maintain social distancing; coordinating deliveries in line with the employer's minimal contact and cleaning protocols; and instituting a rigorous housekeeping program to reduce dust levels at all exterior locations. Consultant remains fully responsible for following and complying with changes to recommended safe work practices from time to time.
8. Monitoring and Reporting. City may require the Consultant to actively monitor the health of its workers through temperature checks and questionnaires of major COVID-19 symptoms, including but not limited to cough, fever above 100.4 degrees Fahrenheit and shortness of breath. Consultant shall immediately report to City any outbreaks of COVID-19 among its workers. The Consultant shall not knowingly allow any worker who has tested positive with COVID-19 to enter a City building. In the event of an outbreak or an exposure to COVID-19, the City may impose appropriate mitigation strategies which may be in consultation with the public health officer.
9. Conflicts. In the event of an inconsistency between this COVID-19 Amendment and the Agreement, this Addendum shall control.
IN WITNESS WHEREOF, the City and Consultant have executed this Covid-19 Amendment as of the date set forth above.
CONSULTANT: CITY:
________________________ ____________________________
Signature Signature
________________________ ______________________________ [__________________] [___________________], Mayor
END OF EXHIBIT E
Item 5.4
1 MASTER PROFESSIONAL SERVICES AGREEMENT
FOR
ECONOMIC AND FISCAL ANALYSIS SERVICES
This Agreement is made and entered into as of the 22nd day of September, 2026 by and between the City of Foster City hereinafter called "CITY" and Willdan Financial Services hereinafter called "CONSULTANT".
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
WHEREAS, CITY desires to retain CONSULTANT to provide professional economic and fiscal analysis services and related consulting services; WHEREAS, It is anticipated that, as a need arises for CONSULTANT to provide services, CITY will issue Task Orders to CONSULTANT (in a form substantially similar to that set forth in Exhibit “A,” attached hereto and incorporated by reference which more particularly describes the scope of services to be performed);
WHEREAS, In reliance upon CONSULTANT's documentation of its qualifications, the CITY finds that CONSULTANT has demonstrated the requisite qualifications, experience, training, and expertise to perform the requested services.
WHEREAS, That CONSULTANT is specially trained, experienced and competent to perform and has agreed to provide such services;
NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties hereby agree as follows:
TERMS AND CONDITIONS
1. Services. The services to be performed by CONSULTANT under this Agreement shall include those services set forth in each Task Order and Exhibit “B,” Scope of Services, which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein.
Performance of the work specified in said Exhibit B and each Task Order is hereby made an obligation of CONSULTANT under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
Where in conflict, the terms of this Agreement supersede and prevail over any terms set forth in Exhibit B and in each Task Order.
Item 5.4
2 1. Term; Termination.
(a) The term of this Agreement shall commence upon the date hereinabove written and shall expire upon completion of performance of services hereunder by CONSULTANT. Initial contract period shall be from September 22, 2026 and expires on September 22, 2031 Renewal shall be by mutual consent of CONSULTANT AND CITY as approved by the City Council Board. CONSULTANT shall not commence Services or work until a Notice to Proceed is issued by CITY.
(b) Notwithstanding the provisions of (a) above, CITY may with or without cause, direct CONSULTANT to suspend, delay or interrupt Services, in whole or in part, for such periods of time as CITY may determine in its sole discretion.
(c) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for default, should CONSULTANT commit a material breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days of the date of CITY’s written notice to CONSULTANT demanding such cure, in which case CONSULTANT shall be liable to CITY for direct damages actually incurred by CITY to the extent caused by CONSULTANT’s uncured material breach. (d) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for convenience, by providing no less than seven (7) days’ written notice, whenever CITY determines that such termination is in CITY’s best interests, in which case CONSULTANT shall be entitled to recover its costs expended up to the termination date plus reasonable profit thereon to the termination date as this Agreement would otherwise provide, but may recover no other cost, damage or expense.
CONSULTANT shall continue its work throughout the course of any dispute, and CONSULTANT’s failure to continue work during a dispute shall be a material breach of this Agreement.
2. Compensation; Expenses; Payment. CITY shall compensate CONSULTANT for all services performed by CONSULTANT hereunder in an amount based upon CONSULTANT’s hourly rates during the time of the performance of said services. A copy of CONSULTANT’s hourly rates for which services hereunder shall be performed are set forth in CONSULTANT’s fee schedule marked Exhibit “C” hereof, attached hereto and by this reference incorporated herein.
Notwithstanding the foregoing, the combined total of compensation and reimbursement of costs payable hereunder shall not exceed the total amount identified in all Task Orders issued by the City against this agreement. The Consultant shall only be paid for services performed under this Agreement to the extent authorized by written Task Order. No Item 5.4
3 overhead or other expenses can be recovered for interim periods when the Consultant’s services are not utilized by the City. Invoices for amounts in excess of each Task Order shall not be paid unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses by CITY’s Manager (for contracts less than $50,000) or CITY Board (for contracts $50,000 or more) evidenced by motion duly made and carried and a written contract amendment having been executed.
Compensation and reimbursement of costs and expenses hereunder shall be payable upon monthly billing therefor by CONSULTANT to CITY, which billing shall include an itemized statement, briefly describing by task and labor category or cost/expense items billed. Final payment will be made when all Services required under this Agreement have been completed to the reasonable satisfaction of CITY including, without limitation, CONSULTANT's transmittal of all deliverables to CITY required by EXHIBIT B and each Task Order.
CITY shall not incur any charges under this Agreement, nor shall any payments become due to CONSULTANT for any payment period on the Project, until CITY receives all deliverables required under Exhibit B and each Task Order, SCOPE OF WORK AND SCHEDULE, for the payment period (if any) and reasonably accepts such deliverables as meeting the requirements of this Agreement, provided, however, that CONSULTANT shall be entitled to monthly payment for Services properly performed and costs incurred during the applicable billing period, whether or not such Services result in a completed deliverable during that billing period. CITY shall not unreasonably withhold, condition, or delay acceptance of deliverables or payment of undisputed amounts.
In cases where CONSULTANT has partially completed one or more deliverables due during a payment period, and if CONSULTANT demonstrates diligent progress thereon, then CITY may make a partial progress payment based upon percentage completion of the partially completed deliverables and diligent progress but taking into account any adverse impacts upon CITY. CITY shall not be liable for, and CONSULTANT shall not be entitled to, any payment for Services performed before this Agreement's execution.
CITY will not withhold any Federal or State income taxes or Social Security tax from any payments made by CITY to CONSULTANT under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums is the sole responsibility of CONSULTANT.
CITY has no responsibility or liability for payment of CONSULTANT’s taxes or assessments.
Item 5.4
4 4. Performance of Services. No work shall be performed under this Agreement except to the extent the CONSULTANT receives a Task Order from the CITY’s Authorized Representative. The CITY will request proposals from the CONSULTANT for each Task Order when services are needed.
CONSULTANT shall respond with a scope and cost proposal in a reasonably prompt manner, no later than fifteen (15) calendar days after CITY’s request. Such proposal shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefor, the time of performance thereof, and such other matters as the parties deem appropriate for the accomplishment of such services. Upon the approval of the terms of the proposal by CITY’s Manager (for contracts less than $50,000) or CITY Council (for contracts $50,000 or more) by motion duly made and carried, the CITY's Authorized Representative shall issue a Task Order against this agreement. CONSULTANT shall commence performance and shall complete all required services no later than the dates set forth in accordance with the approved Task Order. Except to the extent modified by written amendment, all other terms and conditions of this Agreement shall be deemed incorporated in each such Task Order.
5. Records and Audit. CONSULTANT shall keep and maintain accurate records of all time expended and costs and expenses incurred relating to services to be performed by CONSULTANT hereunder. Said records shall be available to CITY for review and copying during regular business hours at CONSULTANT’s place of business or as otherwise agreed upon by the parties.
CONSULTANT shall prepare and maintain all writings, documents and records prepared or compiled in connection with the performance of this Agreement for a minimum of four (4) years from the termination or completion of this Agreement. This includes any handwriting, typewriting, printing, photo static, photographing and every other means of recording upon any tangible thing, any form of communication or representation including letters, words, pictures, sounds or symbols or any combination thereof.
Any authorized representative of CITY shall have access to any writings as defined above for the purposes of making audit, evaluation, examination, excerpts and transcripts during the period such records are to be maintained by CONSULTANT. Further, CITY has the right at all reasonable times to audit, inspect or otherwise evaluate the services and work performed or being performed under this Agreement.
Item 5.4
5 6. Authorization. This Agreement becomes effective when endorsed by both parties in the space provided below.
7. Reliance on Professional Skill of CONSULTANT. CONSULTANT represents that it has the necessary professional skills to perform the services required and the CITY shall rely on such skills of the CONSULTANT to do and perform the work. In performing services hereunder CONSULTANT shall adhere to the standards generally prevailing for the performance of expert consulting services similar to those to be performed by CONSULTANT hereunder.
CONSULTANT represents that it has reviewed Exhibit B and that in its professional judgment the Services to be performed under this Agreement can be performed for a fee within the maximum amount set forth in the Compensation Schedule established in Exhibit B.
CONSULTANT represents that it possesses all necessary training, licenses, certificates, and permits required by the federal, state, CITY or municipal governments to perform the Services. Such licenses, certificates and permits must be valid at the time CONSULTANT enters into this Agreement and must be maintained during the term of this Agreement in full force and effect. Licenses, certificates and permits may include but are not limited to driver’s licenses, professional licenses or certificates and business licenses. Such licenses, certificates and permits will be procured and maintained in force by CONSULTANT at no expense to CITY.
CONSULTANT represents that its performance of the Services will conform to the standards of practice of a professional having experience and expertise in performing professional services of like nature and complexity of the Services working on similar, successfully completed projects.
The granting of any progress payment by CITY, or the receipt thereof by CONSULTANT, or any inspection, review, approval or oral statement by any representative of CITY or any other governmental entity, shall in no way waive or limit the obligations in this Paragraph 7 or lessen the liability of CONSULTANT for unsatisfactory Services, including but not limited to cases where the defective or below standard Services may not have been apparent or detected at the time of such payment, inspection, review or approval.
CONSULTANT’s services are advisory and technical in nature. CITY retains sole responsibility for legal determinations, policy decisions, public notices, hearings, adoption of fees or ordinances, and implementation of any fiscal, nexus, or economic analysis. CONSULTANT does not provide legal advice.
Item 5.4
6 8. Documents. All documents, plans, drawings, renderings, and other papers, or copies thereof, as finally rendered, prepared by CONSULTANT pursuant to the terms of this Agreement, shall, upon preparation and delivery to CITY, become the property of CITY provided that CONSULTANT retains ownership of its pre-existing materials, templates, tools, models, formulas, methodologies, software, know-how, and internal work papers.
CONSULTANT grants CITY a nonexclusive license to use the final deliverables for the purposes for which they were prepared.
Notwithstanding the above, computer software (including without limitation financial models, compilations of formulas and spreadsheet models) and products derived from such software, prepared by CONSULTANT are Instruments of Service of CONSULTANT and shall remain the property of CONSULTANT. CONSULTANT shall likewise retain all common law, statutory and other reserved rights, including the copyright thereto.
However, the fixed final work product delivered by CONSULTANT shall belong to the CITY.
9. Relationship of Parties. It is understood that the relationship of CONSULTANT to the CITY is that of an independent contractor and all persons working for or under the direction of CONSULTANT are its agents or employees and not agents or employees of the CITY.
10. Schedule. CONSULTANT shall adhere to the schedule set forth in Exhibit B; provided, that CITY shall grant reasonable extensions of time for the performance of such services occasioned by governmental reviews of CONSULTANT’s work product or other unavoidable delays; provided, further, that such unavoidable delay shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, CONSULTANT’s officers or employees.
CONSULTANT acknowledges the importance to CITY of CITY’s Project schedule and agrees to put forth its best professional efforts to perform its services under this Agreement in a manner consistent with that schedule.
11. Indemnity.
(a) To the fullest extent allowed by law (including without limitation California Civil Code Sections 2782 and 2782.8), CONSULTANT shall defend, indemnify, and hold harmless City of Foster City, its officers, directors, officials, agents, employees, and volunteers (collectively, “Indemnitees”) from and against any and all claims, suits, expenses, liability, cause of action, loss, cost, damage, injury (including, without limitation, economic harm, injury to or death of any person, including an employee of CONSULTANT or its Subconsultants), of every kind, nature, and description, at law or equity, (including without limitation, incidental and Item 5.4
7 consequential damages, court costs, attorneys’ fees, litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) (collectively “Liabilities”), that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of CONSULTANT, any Subconsultant, anyone directly or indirectly employed or retained by them, or anyone that they control.
CONSULTANT’s obligations to indemnify, defend, hold harmless the Indemnitees shall not apply to the extent that such Liabilities are caused in whole or in part by the sole negligence, active negligence, or willful misconduct of such Indemnitee but shall apply to all other Liabilities.
If CONSULTANT is a “design professional,” as defined in California Civil Code Section 2782.8(c), CONSULTANT shall indemnify, defend, and hold the Indemnitees harmless against Liability only to the extent such Liability arises out of, pertains to, or relates to CONSULTANT’s negligence, recklessness, or willful misconduct. In such an event, the cost to defend charged to CONSULTANT shall not exceed CONSULTANT’s proportionate percentage of fault.
(b) Intellectual Property Indemnification. CONSULTANT represents that professional services provided by CONSULTANT pursuant to this Agreement does not infringe on any other copyrighted work or intellectual property owned by others. CONSULTANT shall defend, indemnify and hold harmless CITY from all Liabilities, that may at any time arise for any infringement of the patent rights, copyright, trade secret, trade name, trademark, service mark or any other proprietary right of any person or persons in arising from or relating to CONSULTANT’s services provided to CITY under this Agreement.
(c) CONSULTANT shall place in its agreements with Subconsultants and cause its Subconsultants to agree to the indemnification and insurance provisions in this Agreement in favor of CITY and the Indemnitees in the exact form and substance as those contained in this Agreement. (d) CITY acknowledges that the discovery, presence, handling or removal of asbestos products, polychlorinated biphenyl (PCB) or other hazardous substances which may presently exist at the any Project site is outside of CONSULTANT’s responsibilities and is not included in the scope of Services CONSULTANT is to perform nor included in CONSULTANT’s insurance. CITY shall hire hazardous materials consultant if the Project requires the testing or remediation of hazardous substances.
CONSULTANT shall not be responsible or be involved in any way with the discovery, presence, handling or removal of such materials.
CONSULTANT shall, however, be responsible for the coordination of CONSULTANT’s services and work with the work of CITY’s hazardous materials consultants.
Item 5.4
8 (e) Duty to Cooperate. CONSULTANT shall notify CITY immediately in writing of any claim or damage related to activities or services performed under this Agreement. CONSULTANT shall cooperate with CITY in the investigation and disposition of all Liabilities arising out of the activities or services under this Agreement. Without limiting the foregoing, CONSULTANT shall take all steps necessary to assist CITY in the defense of any and all Liabilities brought by a contractor hired to construct the Project regarding any errors, flaws, and/or omissions in the plans or specifications of the Project. Any additional services or work under this paragraph shall be compensated as Additional Services.
12. Insurance. Prior to execution of this Agreement, CONSULTANT shall furnish to CITY Certificates of Insurance showing satisfactory proof that it maintains the insurance required by this Contract as set forth in EXHIBIT D, Insurance, which are attached and made a part of this Agreement.
CONSULTANT shall maintain all required insurance throughout the term of this Agreement and as otherwise provided in EXHIBIT D. In the event CONSULTANT fails to maintain any required insurance, and notwithstanding Paragraph 3 above, CITY may (but is not obligated to) purchase such insurance and deduct or retain premium amounts from any sums due CONSULTANT under this Agreement (or CONSULTANT shall promptly reimburse CITY for such expense).
CONSULTANT shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following completion of this project or service. In the event CONSULTANT fails to obtain or maintain completed operations coverage as required by this Agreement, the CITY at its sole discretion may purchase the coverage required and the cost will be paid by CONSULTANT.
13. WORKERS' COMPENSATION. CONSULTANT certifies that he is aware of the provisions of the Labor Code of the State of California 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 CONSULTANT certifies that he will comply with such provisions before commencing the performance of the work of this agreement.
14. NON-DISCRIMINATION. The CONSULTANT will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The CONSULTANT will take affirmative action to ensure that applicants are employed, and the employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following:
employment, advancement, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of Item 5.4