CONSULTANT AGREEMENT
THIS AGREEMENT is made this day of 20__, by the CITY OF GARDEN GROVE, a municipal corporation, (“CITY”), and Iteris, Inc., a California Corporation (‘‘CONSULTANT”).
RECITALS
The following recitals are a substantive part of this Agreement:
1. This Agreement is entered into pursuant to Garden Grove Council authorization dated ______________
2. CITY desires to utilize the services of CONSULTANT to install and integrate equipment for the Bolsa Chica St.-Valley View St. Traffic Signal Synchronization Project.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term of Agreement: This Agreement shall cover services rendered from date of this Agreement until completed.
2. Services to be Provided: The services to be performed by CONSULTANT shall consist of the services as further specified in CONSULTANT’S proposal or bid attached hereto as Exhibit A and incorporated herein by reference. CONSULTANT agrees that is provision of Services under this agreement shall be within accepted accordance with customary and usual practices in CONSULTANT’S profession. By executing this Agreement, CONSULTANT warrants that it has carefully considered how the work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the work under this agreement.
3. Compensation. CONSULTANT shall be compensated as follows:
3.1 Amount. Compensation under this Agreement shall be per fee/cost schedule included in the Proposal.
3.2 Not to Exceed. Compensation under this Agreement shall not exceed $545,121.00.
3.3 Payment. For work under this Agreement, payment shall be made in accordance with Section 28 below.
3.4 Reserved.
2 3.5 Termination. CITY and CONSULTANT shall each have the right to terminate this Agreement, without cause, by giving thirty-(30) days written notice of termination to the other party. If CITY terminates the project, then the provisions of paragraph 3 shall apply to that portion of the work completed.
4. Insurance and Bonds
4.1 COMMENCEMENT OF WORK. CONSULTANT shall not commence work under this Agreement until all certificates and endorsements have been received and approved by the CITY. All insurance required by this Agreement shall contain a statement of obligation on the part of the carrier to notify the city of any material change, cancellation, or termination at least thirty (30) days in advance. A waiver of subrogation shall be provided by the insurer for each policy waiving subrogation against CITY, its officers, officials, employees, agents, and volunteers for this agreement and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, Claims made and modified occurrence policies shall not be accepted for any policy. All Subcontractors shall be required to provide and maintain the same insurances as required of CONSULTANT under this agreement.
CONSULTANT shall be required to collect and maintain all required insurances from all Subcontractors.
4.2 CONSULTANT is aware of the provisions of Section 3700 of the Labor Code, which requires every employer to be insured against liability for Workers’ Compensation or undertake self-insurance in accordance with the provisions of that Code, and will comply with such provisions before commencing the performance of the work of this Agreement.
4.3 CONSULTANT and all Subcontractors shall carry workers' compensation insurance for the protection of its employees during the progress of the work. The insurer shall waive its rights of subrogation against the CITY, its officers, officials, employees, agents, and volunteers for this agreement and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, and shall issue a waiver of subrogation.
4.4 Before CONSULTANT performs any work at, or prepares or delivers materials to, the site of construction, CONSULTANT shall furnish:
Additional Insured Endorsements, ongoing and products-completed operations, for the Commercial General Liability policy, including mobile equipment and not excluding XCU. Endorsements shall designate CITY, its officers, officials, employees, agents, and volunteers for this agreement and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, as additional insureds for liability arising out of 3 work or operations performed by or on behalf of the CONSULTANT.
CONSULTANT shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY. (Form CG 20 26 07 04 & Form CG 20 37 07 04 or equivalent) (Claims made and modified occurrence policies are not
acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A-, class VII or better, as approved by CITY).
An Additional Insured Endorsement for an Automobile Liability policy and shall designate CITY, its officers, officials, employees, agents, and volunteers for this agreement and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, as additional insureds for automobiles owned, leased, hired, or borrowed by the CONSULTANT.
CONSULTANT shall provide to CITY proof of insurance and endorsement forms that conform to CITY’s requirements, as approved by the CITY. (Form CA 20 48 02 99 or equivalent) (Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A- , class VII or better, as approved by CITY).
A Loss Payee Endorsement for the Course of Construction policy designating the City of Garden Grove as Loss Payee. (Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A-, class VII or better, as approved by CITY).
In the event any of CONSULTANT’S underlying policies do not meet policy limits as required here in, CONSULTANT shall provide the schedule of underlying polices for a follows form excess liability policy, state that the excess policy follows form on the insurance certificate, and an additional insured endorsement for the excess liability policy designating CITY, its officers, officials, employees, agents, and volunteers for this agreement and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY, as additional insureds. (Claims made and modified occurrence policies are not acceptable; Insurance companies must be acceptable to CITY and have a minimum A.M. Best Guide rating of A-, class VII or better, as approved by CITY).
For any claims related to this Project, the CONSULTANT’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, agents, and volunteers for this agreement and all public agencies from whom permits will be obtained and their directors, officers, agents, and employees, as determined by the CITY. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents, and volunteers for this agreement and all public agencies from whom permits will be obtained and their directors, 4 officers, agents, and employees, as determined by the CITY, shall be excess of the CONSULTANT’s insurance and not contribute with it.
4.5 Before CONSULTANT performs any work at, or prepares or delivers materials to, the site of construction, CONSULTANT shall furnish:
CONSULTANT shall maintain all of the foregoing insurance coverage in force until the work under this Agreement is fully completed. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of CITY by CONSULTANT under Section
5.17 of this Agreement. Notwithstanding nor diminishing the obligations of CONSULTANT with respect to the foregoing, CONSULTANT shall subscribe for and maintain in full force and effect during the life of this Agreement, the following insurance in amounts not less than the amounts specified and issued by a company admitted and licensed in California and having a Best's Guide Rating of A-Class VII or better (claims made and modified occurrence policies are not acceptable):
Workers’ Compensation As required by the State of
California.
Employer’s Liability
Not less than $1,000,000 per
accident for bodily injury or disease.
Commercial General Liability
(including on-going operations, products
- completed operations, and mobile
equipment, and not excluding XCU)
Not less than $5,000,000 per
occurrence for bodily injury,
personal injury and property
damage.
Automobile Liability, for all automobiles
including non-owned and hired vehicles
Not less than $2,000,000 combined
single limit for bodily injury and
property damage.
Follows Form Excess Liability
Required for any underlying policy
that does not meet the underlying
policy limits required herein.
If CONSULTANT maintains higher insurance limits than the minimums shown above, CONSULTANT shall provide coverage for the higher limits otherwise maintained by the CONSULTANT.
CITY or its representatives shall at all times have the right to inspect and receive a certified copy of all said policies of insurance, including certificates and endorsements at CONSULTANTS sole cost and expense. CONSULTANT shall pay the premiums on the insurance hereinabove required.
5 4.6 Bonds. CONSULTANT shall, prior to entering into performance of this Agreement, furnish a performance bond, on the CITY's bond form in the amount of one hundred percent (100%) of the Agreement price, to guarantee the faithful performance of the work, and a payment bond, on the CITY's form in the amount of one hundred percent (100%) of the Agreement price, to guarantee payment of all claims for labor and materials furnished. Bonds submitted on any form other than the CITY's form will be rejected. The required bonds shall be from a surety licensed to do business in the State of California and with a current A.M. Best's rating of A-, VII. This Agreement shall not become effective until such bonds are supplied and approved by the CITY.
5. Non-Liability of Officials and Employees of the CITY. No official or employee of CITY shall be personally liable to CONSULTANT in the event of any default or breach by CITY, or for any amount, which may become due to CONSULTANT.
6. Non-Discrimination. CONSULTANT covenants there shall be no discrimination against any person or group due to race, color, creed, religion, sex, marital status, age, handicap, national origin or ancestry, in any activity pursuant to this Agreement.
7. Independent Contractor. It is understood and agreed that CONSULTANT, including CONSULTANT’s employees, shall act and be independent contractor(s) and not agent(s) or employee(s) of CITY, and that no relationship of employer-employee exists between the parties. CONSULTANT’s assigned personnel shall not obtain or be entitled to any rights or benefits that accrue to, or are payable to, CITY employees, and CONSULTANT shall so inform each employee organization and each employee who is hired or retained under this Agreement. CITY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of this Agreement, and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT’s assigned personnel.
CONSULTANT hereby expressly assumes all responsibility and liability for the payment of wages and benefits to its assigned personnel, and all related reporting and withholding obligations. CONSULTANT hereby agrees to indemnify and hold CITY harmless from any and all claims or liabilities that CITY may incur arising from any contention by any third party, including, but not limited to, any employee of CONSULTANT or any federal or state agency or other entity, that an employer-employee relationship exists by reason of this Agreement, including, without limitation, claims that CITY is responsible for retirement or other benefits allegedly accruing to CONSULTANT’s assigned personnel.
8. Compliance With Law. CONSULTANT shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government.
CONSULTANT shall comply with, and shall be responsible for causing all contractors and subcontractors performing any of the work pursuant to this Agreement, if any, to comply with, all applicable federal and state labor 6 standards, including, to the extent applicable, the prevailing wage requirements promulgated by the Director of Industrial Relations of the State of California Department of Labor. The City makes no warranty or representation concerning whether any of the work performed pursuant to this Agreement constitutes public works subject to the prevailing wage requirements.
9. Disclosure of Documents. All documents or other information developed or received by CONSULTANT are confidential and shall not be disclosed without authorization by CITY, unless disclosure is required by law.
10. Ownership of Work Product. All documents or other information developed or received by CONSULTANT shall be the property of CITY. CONSULTANT shall provide CITY with copies of these items upon demand or upon termination of this Agreement.
11. Conflict of Interest and Reporting. CONSULTANT shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement.
12. Notices. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice.
These addresses shall be used for delivery of service of process.
(a) Address of CONSULTANT is as follows:
_________
_________
_________
_________
(b) Address of CITY is as follows (with a copy to):
Engineering: City Attorney
City of Garden Grove City of Garden Grove
P.O. Box 3070 P.O. Box 3070
Garden Grove, CA 92840 Garden Grove, CA 92840
13. CONSULTANT’S Proposal or Bid. This Agreement shall include CONSULTANT’S proposal or bid, Exhibit “A” hereto, which shall be incorporated herein. In the event of any inconsistency between the terms of the proposal and this Agreement, this Agreement shall govern.
14. Licenses, Permits and Fees. At its sole expense, CONSULTANT shall obtain a Garden Grove Business License, all permits and licenses as may be required by this Agreement.
7 15. Familiarity With Work. By executing this Agreement, CONSULTANT warrants that: (1) it has investigated the work to be performed; (2) it has investigated the site of the work and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work under this Agreement. Should CONSULTANT discover any latent or unknown conditions materially differing from those inherent in the work or as represented by CITY, it shall immediately inform CITY of this and shall not proceed, except at CONSULTANT’S risk, until written instructions are received from CITY.
16. Time of Essence. Time is of the essence in the performance of this Agreement.
17. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of CONSULTANT, its principals and employees were a substantial inducement for CITY to enter into this Agreement. CONSULTANT shall not contract with any other entity to perform the services required without written approval of the CITY. This Agreement may not be assigned voluntarily or by operation of law, without the prior written approval of CITY. If CONSULTANT is permitted to subcontract any part of this Agreement, CONSULTANT shall be responsible to CITY for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationship between any subcontractor and CITY. All persons engaged in the work will be considered employees of CONSULTANT. CITY will deal directly with and will make all payments to CONSULTANT.
18. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the parties are formally bound.
19. Indemnification. To the fullest extent permitted by law, CONSULTANT agrees to protect, defend, and hold harmless CITY and its elective or appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of CONSULTANT, CONSULTANT'S agents, officers, employees, subcontractors, or independent contractors hired by CONSULTANT in the performance of the Agreement. The only exception to CONSULTANT'S responsibility to protect, defend, and hold harmless CITY, is due to the negligence, recklessness and/or wrongful conduct of CITY, or any of its elective or appointive boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT.
8 20. Modification. This Agreement constitutes the entire agreement between the parties and supersedes any previous agreements, oral or written. This Agreement may be modified only by subsequent mutual written agreement executed by CITY and CONSULTANT.
21. Waiver. All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the CITY and CONSULTANT.
22. California Law. This Agreement shall be construed in accordance with the laws of the State of California. Any action commenced about this Agreement shall be filed in the central branch of the Orange County Superior Court.
23. Interpretation. This Agreement shall be interpreted as though prepared by both parties
24. Preservation of Agreement. Should any provision of this Agreement be found invalid or unenforceable, the decision shall affect only the provision interpreted, and all remaining provisions shall remain enforceable.
25. Time of Commencement and Completion.
The Contract time shall commence on the date the Notice to Proceed is issued by the City. The CONSULTANT shall submit shop drawings within seven (7) calendar days. The CONSULTANT shall diligently prosecute the work within eighty (80) working days to completion as required per the plans and specifications excluding delays caused or authorized by the CITY.
26. Extra Work. The Agreement price includes compensation for all work performed by CONSULTANT, unless CONSULTANT obtains a written change order signed by a designated representative of CITY specifying the exact nature of the extra work and the amount of extra compensation to be paid.
CITY shall extend the time for completion of the Project by the number of days reasonably required for CONSULTANT to perform the extra work, as determined by CITY’S Engineer. The decision of the Engineer shall be final.
27. Liquidated Damages for Delay. The parties agree that if the total work called for under this Agreement, in all parts and requirements, is not completed within the time specified in Section 25 herein, plus the allowance made for delays or extensions authorized under Section 26 herein, the CITY will sustain damage which would be extremely difficult and impractical to ascertain. The parties therefore agree that CONSULTANT will pay to CITY the sum of One Thousand Dollars ($1,000.00) per day for each and every calendar day during which completion of the project has not been completed within eighty (80) working day period. CONSULTANT agrees to pay such liquidated damages and further agrees that CITY may offset the amount of liquidated damages from any monies due or that may become due CONSULTANT under the Agreement.
28. Method of Payment.
9 Progress payments shall be made to the CONSULTANT on a monthly basis for each successive month as the work progresses. The CONSULTANT shall be paid such sum as will bring the total payments received since the commencement of the work up to ninety-five percent (95%) of the value of the work completed, less all previous payments, provided that the CONSULTANT submits the request for payment prior to the end of the day required to meet the payment schedule.
The CITY will retain five percent (5%) of the amount of each such progress estimate and material cost until 30 days after the recordation of the Notice of Completion.
29. CONSULTANT 's Employees Compensation.
29.1 General Prevailing Rate. CITY has ascertained CONSULTANT and its Subcontractors shall comply with all applicable requirements of Division 2, Part 7, Chapter 1 of the California Labor Code and all applicable federal requirements respecting the payment of prevailing wages. If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the prevailing wage rates determined by the Director of the Department of Industrial Relations (DIR) for similar classifications of labor, the CONSULTANT and its Subcontractors shall pay not less than the higher wage rate. The DIR will not accept lower State wage rates not specifically included in the Federal minimum wage determinations. This includes "helper" (or other classifications based on hours of experience) or any other classification not appearing in the Federal Wage determinations. Where Federal wage determinations do not contain the State wage rate determination otherwise available for use by the CONSULTANT and Subcontractors, the CONSULTANT and its Subcontractors shall pay not less than the Federal Minimum wage rate which most closely approximates the duties of the employees in question."
29.2 Forfeiture for Violation. CONSULTANT shall, as a penalty to the CITY, forfeit one hundred dollars ($100.00) for each calendar day or portion thereof for each worker paid (either by the CONSULTANT or any subcontractor under it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor Code for the work provided for in this Agreement, all in accordance with Section 1775 of the Labor Code of the State of California.
29.3 Apprentices. Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices is applicable to this Agreement and the CONSULTANT shall comply therewith; provided, however, that this requirement shall not apply if and/or to the extent that the Agreement of the general CONSULTANT, or the contracts of specialty contractors not bidding for work through a general or prime contractor involve less than thirty thousand dollars ($30,000.00).
10 29.4 Workday. In the performance of this Agreement, not more than eight (8) hours shall constitute a day's work, and CONSULTANT shall not require more than eight (8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (5.14.2) above. CONSULTANT shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et seq.) of the Labor Code of the State of California and shall forfeit to the CITY as a penalty, the sum of twenty-five Dollars ($25.00) for each worker employed in the execution of this Agreement by CONSULTANT or any subcontractor for each calendar day during which any worker is required or permitted to labor more than eight (8) hours in any one calendar day and forty (40) hours in any one week in violation of said Article. CONSULTANT shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by CONSULTANT in connection with the Project.
29.5 Record of Wages: Inspection. CONSULTANT agrees to maintain accurate payroll records showing the name, address, social security number, work classification, straight-time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by it in connection with the Project and agrees to require that each of its subcontractors does the same. The applicable CONSULTANT or subcontractor or its agent having authority over such matters shall certify all payroll records as accurate. CONSULTANT further agrees that its payroll records and those of its subcontractors shall be available to the employee or employee's representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the provisions of Labor Code Section 1776, in general.
CONSULTANT shall comply with all of the provisions of Labor Code Section 1776, and shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). The CONSULTANT shall submit copies of certified payroll reports and payment records for labors, every two weeks to the Engineer. Certified payroll and cancelled checks submittals are due one month after start of construction and every two weeks thereafter. If the certified payroll and cancelled checks are not submitted, the CONSULTANT will be notified that compliance is required within five (5) working days or contract work must cease. The CITY will not be responsible for any delay or acceleration charges or any incurred costs or damages as a result of the work stoppage due to CONSULTANT’s failure to comply. Work shall be ceased in an orderly, safe fashion with all vehicle access restored. Should this not occur, CITY will correct the deficiencies and deduct the cost from funds due to the CONSULTANT. In addition, no progress payment shall be made until the copies of certified payroll reports and cancelled checks are submitted.
29.6 Contractor Registration. CONSULTANT and its subcontractors must be registered with the California Department of Industrial Relations pursuant to Labor Code Section 1725.5. This Agreement shall not be effective until CONSULTANT provides proof of registration to the CITY.
11 29.7 Posting of Job Site Notices. CONSULTANT shall comply with the job site notices posting requirements established by the Labor Commissioner pursuant to Title 8, California Code of Regulations Section 16461(e) or other regulation promulgated pursuant to Labor Code Section 1771.4(a) (2).
29.8 Notice of DIR Compliance Monitoring and Enforcement. Pursuant to Labor Code Section 1771.4, this Project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations.
30. Warranty. The CONSULTANT agrees to perform all work under this Agreement in accordance with the CITY’s designs, drawings and specifications.
The CONSULTANT guarantees for a period of one (1) year from the date of the notice of completion of the work that the completed work is free from all defects due to faulty materials, equipment or workmanship and that he shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, including repairs or any damage to other parts of the system resulting from such defects. The CITY shall promptly give notice to the CONSULTANT of observed defects. In the event that the CONSULTANT fails to make adjustments, repairs, corrections or other work made necessary by such defects, the CITY may do so and charge the CONSULTANT the cost incurred. The performance bond shall remain in full force and effect through the guarantee period.
The CONSULTANT'S obligations under this clause are in addition to the CONSULTANT'S other express or implied assurances of this Agreement or state law and in no way diminish any other rights that the CITY may have against the CONSULTANT for faulty materials, equipment or work.
[SIGNATURES ON FOLLOWING PAGE]
12 IN WITNESS THEREOF, these parties hereto have caused this Agreement to be executed as of the date set forth opposite the respective signatures.
“CITY”
CITY OF GARDEN GROVE
Dated: , 2020 By:
City Manager
ATTEST "CONSULTANT"
By:
City Clerk Title:
Dated: , 202_ Dated: , 202_
APPROVED AS TO FORM:
If CONSULTANT/CONTRACTOR is a
corporation, a Corporate Resolution
and/or Corporate Seal is required. If
a partnership, Statement of
Partnership must be submitted to
CITY
Garden Grove City Attorney
Dated: , 202_