-1- Approved for Use 02/24/20
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AGREEMENT BETWEEN THE CITY OF MANHATTAN BEACH
AND CONTROL AUTOMATION DESIGN, INC.
PURCHASE AND INSTALLATION OF CONTROL INTEGRATION SYSTEM
FOR VOORHEES LIFT STATION UPGRADE PROJECT
The following agreement (“Agreement”) is dated February 6, 2024 (“Effective Date”) by and between the City of Manhattan Beach, a California municipal corporation (“City”) and Control Automation Design, Inc. , a California corporation (“Consultant”). City and Consultant are referred to herein as the “parties.”
WHEREAS, City desires to purchase the equipment (“Equipment”) listed in Exhibit A.
Scope of Work and Fee Schedule, and cause the installation thereof; WHEREAS, City and Consultant now desires to memorialize the terms and conditions of the purchase and installation of the Control Integration System for the Voorhees Lift Station Upgrade Project; and
NOW THEREFORE, in consideration of the mutual covenants herein contained, it is agreed:
1. GENERAL SCOPE OF WORK; TERM; TERMINATION: Consultant shall procure and furnish all necessary labor, tools, materials, and expertise for the installation of Control Integration System for the Voorhees Lift Station Upgrade Project consistent with the Scope of Work attached hereto as Exhibit A. The installation is to be performed in good and workmanlike manner and in accordance with any further written instructions, if any, of the City Engineer or his designated representative. The term of this Agreement shall commence upon the Effective Date and, unless term inated as provided herein; shall continue until all required work is completed; fully executed releases as to any and all lien rights of any and all subcontractors have been received by City; and the time within which any liens, stop notices or other claim s for payment by sub contractors, laborers, and/or materialmen can be asserted against City has expired.
City may terminate this Agreement, without cause, at any time by providing Consultant with not less than three days’ prior written notice. Provided Consultant is not then in breach, Consultant will be paid for work satisfactorily completed and for all deliverables received.
2. TIME OF COMPLETION: Notwithstanding any other provision of this Agreement, the completion date for this installation shall be on or before December 31, 2025 (“Completion Date”). Time is of the essence in this Agreement.
3. INCORPORATED DOCUMENTS TO BE CONSIDERED COMPLEMENTARY: All Exhibits attached hereto are incorporated herein by reference. The documents, payment bond, City insurance requirements, together with this written agreement (and all Exhibits, documents and laws referenced therein), shall constitute the entire agreement between the parties as to the subject matter of this Agreement.
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In the event of any conflict between this Agreement and any Exhibit hereto, the provisions of this Agreement shall control.
4. FEE SCHEDULE: City agrees to pay to Consultant the sum of $105,407.06 (the “Maximum Compensation”) for the Equipment and prescribed work. This amount is final and shall be paid by City to Consultant in accordance with the schedule set forth in Exhibit B. The compensation includes (i) all federal, state, and local sales, use, excise, privilege, payroll, occupational and other taxes applicable to the Equipment furnished to City hereunder; and (ii) all charges for packing, freight and transportation to destination.
City will not pay for any services not specified in the Scope of Work, unless the parties authorize such services in writing to Consultant’s performance of those services of incurrence of additional expenses.
5. INSURANCE: Consultant shall not commence work under this Agreement until it has obtained insurance with the minimum limits and coverage required under Exhibit C – City Insurance Requirements, in a company or companies acceptable to City. Con sultant shall not allow any sub contractor to commence work o n its subcontract until all insurance required of the sub contractor has been obtained.
Consultant shall provide evidence of the required insurance to City’s Risk Manager as specified in Exhibit C.
In accordance with the provisions of Sections 1860, 1861, and 3700 of the California Labor Code, Con sultant shall secure the payment of compensation to its employees. Consultant, prior to commencing work, shall sign and file with City a certification as follows:
“I am aware of the provisions of Section 3700 of t he Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract.”
6. PREVAILING WAGES: Notwithstanding any statement to the contrary in Consultant’s proposal or quote, City and Consultant acknowledge that this project is a public work to which prevailing wages apply. Consultant shall comply with all provisions of the document titled “Labor Code and Prevailing Wage Requirements” attached hereto as Exhibit D.
7. REPRESENTATIONS AND WARRANTIES OF CON SULTANT: Con sultant warrants that the work, including equipment and materials, shall conform to professional standards of care and practice in effect at the time the work is performed. Work shall be of the highest quality, and be free from all faults, defects, or errors.
Consultant shall have good and marketable title to all of the Equipment. All of the Equipment is free and clear of any restrictions on or conditions to transfer or DocuSign Envelope ID: 23D8E21B-35C8-48A3-9E03-F7AD78B7F9CB -3-
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assignment, and City will acquire absolute title to all of the Equipment free and clear of mortgages, liens, pledges, charges, encumbrances, equities, claims, covenants, conditions and restrictions except for such as may be created or granted by City. Consultant is aware that City is purchasing the Equipment for use as Control Integration System for the Voorhees Lift Station Upgrade Project, and that City is relying on the warranties of Consultant that the Equipment is fit for this purpose and the ordinary purposes for which the Equipment is normally used.
Consultant shall warrant all labor and materials for a period of one (1) year from completion of work. Consultant shall corre ct such fault, defect, or error, at no additional cost to City. If Consultant fails to correct the problem under the warranty within a reasonable time, City may elect to have the work performed by someone else. Consultant shall refund to City, the charge p aid to another Consultant for correction of the faulty, defective or incorrect work. All equipment and materials provided by Con sultant shall be merchantable and fit for the purpose intended.
Consultant shall be liable for secondary, incidental, or consequential damages of any nature resulting from any work performed under this Agreement.
8. TIME OF DELIVERY AND CONSULTANT SCHEDULE: The time of Consultant’s performance is of the essence for this Agreement. The Equipment will be delivered in accordance with the schedule set forth in Exhibit A or as coordinated with the City Engineer. Consultant must immediately notify City in writing any time delivery is be hind schedule or may not be completed on schedule. In the event that the Equipment is part of a larger project or projects that require the coordination of multiple Con sultants or suppliers, then Con sultant will fully cooperate in scheduling the delivery s o that City can maximize the efficient completion of such project(s).
9. PLACE OF DELIVERY: The Equipment shall be delivered to the following location:
TO CITY: TO CONSULTANT:
Marzena Laskowska Alice Choi
Senior Civil Engineer Owner/Systems Integrator
City of Manhattan Beach Control Automation Design, Inc. 3621 Bell Avenue 1107 Fair Oaks Avenue, #526
Manhattan Beach, California 90266 South Pasadena, California 91030
10. TITLE AND RISK OF LOSS: Title to and the risk of loss, damage, and destruction of the Equip ment shall remain with the Con sultant until after inspection and acceptance of the Equipment by City.
11. INSPECTION AND ACCEPTANCE: City shall inspect the Equipment at the time and place of delivery. Such inspection may include reasonable tests and use of the Equipment by City. If, in the determination of City, the Equipment fails to conform to the Agreement IN ANY MANNER OR RESPECT, City shall so notify DocuSign Envelope ID: 23D8E21B-35C8-48A3-9E03-F7AD78B7F9CB -4-
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Consultant within ten (10) days of delivery of the Equipment to City. Failing such notice, the Equipment shall be deemed accepted by City as of the date of receipt.
12. REJECTION: In the event of such notice of non-conformity by City pursuant to the section entitled “Inspection and Acceptance” above, City may, at its option, (1) reject the whole of the Equipment, ( 2) accept the whole of the Equipment, or (3) accept any commercial unit or units of the Equipment and reject the remainder.
The exercise of any of the above options shall be "without prejudice" and with full reservation of any rights and remedies of City a ttendant upon a breach. In the event of such notice and election by City, City agrees to comply with all reasonable instructions of Consultant and, in the event that expenses are incurred by City in following such instructions, Con sultant shall indemnify City in full for such expenses.
13. NO REPLACEMENTS OF CURE: This Agreement calls for strict compliance.
Consultant expressly agrees that the Equipment tendered and the tender itself will conform fully to the terms and conditions of the Agreem ent on the original tender. In the event of rejection by City of the whole of the Equipment or any part thereof pursuant to the section entitled “Rejection” above, City may, but is not required to, accept any substitute performance from Con sultant or engag e in subsequent efforts to affect a cure of the original tender by Consultant.
14. RESOLUTION OF DISPUTES: In the event that a dispute arises between City and Consultant regarding whether the conditions materially differ, or cause a decrease or increase in Consultant’s cost of or time required for performance of any part of the work, Consultant shall not be excused from any scheduled completion date provided for by this Agreement, but shall proceed with all work to be performed under this Agreement. Consultant shall retain any and all rights that pertain to the resolution of disputes and protests between the parties. In the event of any dispute or controversy with City over any matter whatsoever, Consultant shall not cause any delay or cessation in or of work , but shall proceed with the performance of the work in dispute. This includes disputed time extension requests and prices for changes. The disputed work will be categorized as an “unresolved dispute” and payment, if any, shall be as later determined by mutual agreement or a court of law. Consultant will keep accurate, detailed records of all disputed work, claims and other disputed matters. For purposes of this section, a “claim” means a separate demand by Contractor for a time extension, payment of mo ney or damages arising from work done by or on behalf of Contractor pursuant to this Contract which is not otherwise expressly provided for, or an amount which is disputed by City. Manhattan Beach Municipal Code Chapter 2.56 shall govern the procedures of the claim process, and its provisions are hereby incorporated herein.
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15. INDEMNIFICATION, HOLD HARMLESS, AND DUTY TO DEFEND:
a. Indemnities.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent Consultants in the rol e of City officials (collectively “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively “Liabilities”), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to ari se out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees’ choice, and shall pay all costs and expenses, including all attorneys’ fees an d experts’ costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
2) Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent Consultant relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Consultant and Consultant’s employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers’ compensation laws. City may offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this subparagraph A.2).
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3) Consultant shall obtain executed indemnity agreements with provisions identical to those in this Section 8 from each and every subcontractor or any other person or entity involved by, f or, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant’s sub contractor, its officers, agents, servants, employees, sub contractors, materialmen, Consultants or their officers, agents, servants or employees (or any entity or individual that Consultant’s subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or pass ive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees, as determined by court decision or by the agreement of the parties. b. Workers Compensation Acts not Limiting . Consultant’s indemnifications and obligations under this Section, or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers. c. Insurance Requirements not Limiting . City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy o r certificate required pursuant to this Agreement. The indemnities in this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
16. SURVIVAL OF TERMS: Consultant’s indemnifications and obligations under this Section shall survive the expiration or termination of this Agreement.
17. NON-DISCRIMINATION: No discrimination shall be made in the employment of persons upon public works because of age, disability, race, color, religion, sex, sexual orientation or national origin of such persons, and every Consultant for public works violati ng this Section is subject to all the penalties imposed for a violation of Division 2, Part 7, Chapter 1 of the Labor Code in accordance with the provisions of Section 1735 of that Code.
18. LICENSES: Consultant is aware of California Labor Code Sections 1777. 1 and 1777.7, which prohibit Contractor or any subcontractors who have been found by the Labor Commissioner or the Director of Industrial Relations to be in violation of certain provisions of the Labor Code, from bidding on, being awarded, or DocuSign Envelope ID: 23D8E21B-35C8-48A3-9E03-F7AD78B7F9CB -7-
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performing work as a contractor or subcontractor on a public works project for specified periods of time.
Pursuant to Public Contract Code Section 6109 and California Business and Professions Code Section 7028.15, Contractor shall be licensed as required by the Contractors’ State License Board of the State to perform the work. Pursuant to Public Contract Code Section 3300, at all times during the term of this Contract, Contractor shall possess a Class (Not Applicable) California contractor’s license.
Consultant has investigated and will ensure that any subcontractor possesses a valid specialty trade license in its trade as required by law.
19. WARRANTY: The warranty applicable to the equipment and materials purchased by City pursuant to this Contract shall be as specified in Exhibit A.
20. ANTITRUST CLAIMS: Pursuant to Public Contract Code Section 7103.5, Consultant offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C.
Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the California Business and Professions Code) arising from purchases of goods, services, or materials pursuant to this Agreement. This assignment shall be made and become effective at the time City tenders final payment to Contractor without further acknowledgment by the parties.
21. OWNERSHIP OF DOCUMENTS AND WORK PRODUCT: All documents, plans, specifications, reports, photographs, images, video files and media created or developed by Consultant pursuant to this Agreement (“Written Products”) shall be and remain the property of City without restriction or limitation upon its use, duplication or dissemination by City. All Written Products shall be considered “works made for hire,” and all Written Products and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of City without restriction or limitation upon their use, duplication or dissemination by City.
Consultant shall not obtain or attempt to obtain copyright protection as to any Written Products.
Consultant hereby assigns to City all ownership and any and all intellectual property rights to the Written Products that are not otherwise vested in City pursuant to the paragraph directly above.
Consultant warrants and represents that it has secured all necessary licenses, consents or approvals to use any instrumentality, thing or component as to which any intellectual property right exists, including computer software, used in the rendering of the services and the production of all Written Products produced under this Agreement, and that City has full legal title to and the right to reproduce the Written Products. Con sultant shall defend, indemnify and hold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers, DocuSign Envelope ID: 23D8E21B-35C8-48A3-9E03-F7AD78B7F9CB -8-
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and agents serving as independent contractors in the role of City officials, harmless from any loss, claim or liability in any way related to a claim that City’s use of any of the Written Products is violating federal, State or local laws, or any contractual provisions, or any laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual property rights and/or interests in products or inventions. Consultant shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the services and Written Products produced under this Agreement. In the event the use of any of the Written Products or other deliverables hereunder by City is held to constitute an infringement and the use of any of the same is enjoined, Consultant, at his or her expense, shall: (a) secure for City the right to continue using the Written Products and other deliverables by suspension of any injunction, or by procuring a license or licenses for City; or (b) m odify the Written Products and other deliverables so that they become non -infringing while remaining in compliance with the requirements of this Agreement. This covenant shall survive the termination of this Agreement.
Upon termination, abandonment or susp ension of the project, Con sultant shall deliver to City all Written Products and other deliverables related to the project. If Consultant prepares a document on a computer, Con sultant shall provide City with that document both in a printed format and in an acceptable electronic format. .
22. THIRD-PARTY CLAIM: Pursuant to Public Contract Code Section 9201, City has full authority to compromise or otherwise settle any claim relating to this Agreement at any time. City shall timely notify Consultant of the receip t of any third-party claim relating to this Agreement. City shall be entitled to recover its reasonable costs incurred in providing the notification required by Public Contract Code Section 9201(b).
23. INDEPENDENT CONSULTANT: Consultant is and shall at all times remain, as to City, a wholly independent Consultant. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Consultant or any of Consultant’s employees except as set forth in this Agreement, and Consultant is free to dispose of all portions of its time and activities which it is not obligated to devote to City in such a manner and to such persons, firms, or corporations as Consultant wishes except as expressly provided in this Agreement. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Consultant shall not, at any time or in any manner, represent that it or any of its agents, servants or employees are in any manner agents, servants or employees of City. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement and to indemnify and hold City harmless from any and all DocuSign Envelope ID: 23D8E21B-35C8-48A3-9E03-F7AD78B7F9CB -9-
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taxes, assessments, penalties, and interest asserted against City by reason of the independent consultant relationship created by this Agreement. Consultant shall fully comply with the workers’ compensation law regarding Con sultant and its employees, and Con sultant further agrees to indemnify and hold City harmless from any failure of Con sultant to comply with applicable workers’ compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of its failure to promptly pay to City any reimbursement or indemnification arising under this Section.
24. ASSIGNMENT: Consultant shall not assign or transfer any interest in this Agreement or any part thereof, whether by assignment or novation, without City’s prior written consent. Any purported assignment without w ritten consent shall be null and void, and Consultant shall hold harmless, defend and indemnify City and its officers, officials, employees, agents and representatives with respect to any claim, demand or action arising from any unauthorized assignment.
25. GOVERNING LAW AND VENUE: Should either party to this Agreement bring legal action against the other, the validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State, excluding California’s cho ice of law rules. Venue for any such action relating to this Agreement shall be in the Los Angeles County Superior Court.
26. ATTORNEYS’ FEES: If any legal action or other proceeding, including action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover actual attorneys’ fees, experts’ fees, and other costs, in addition to any other relief to which the party may be entitled.
27. NOTICES: Except as otherwise required by law, any notice, request, direction, demand, payment, consent, waiver, approval or other communication required or permitted to be given hereunder to City shall not be effect ive unless it is given in writing and shall be delivered (a) in person or (b) by certified mail, postage prepaid, and addressed to City at the address stated below, or at such other address as City may hereafter notify Consultant in writing as aforementioned:
TO CITY: TO CONSULTANT:
Marzena Laskowska Alice Choi
Senior Civil Engineer Owner/Systems Integrator
City of Manhattan Beach Control Automation Design, Inc. 1400 Highland Avenue 1107 Fair Oaks Avenue, #526
Manhattan Beach, California 90266 South Pasadena, California 91030 Telephone: 310.802.5354 Telephone: 213.219.0655
Email: [email protected] Email: [email protected]
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If sent by mail, any notice, tender, demand, delivery or other communication shall be deemed effective three business days after it has been deposited in the United States mail. For purposes of communicating these time frames, weekends and federal, State, religious, County of Los Angeles or City holidays shall be excluded.
No communication via facsimile or electronic mail shall be effective to give any such notice or other communication hereunder.
28. ENTIRE AGREEMENT: This Agreement, including any other documents incorporated herein by reference, represents the entire integrated agreement between City and Con sultant and supersedes all prior or contemporaneous negotiations, representations, agreements, understandings and statements, written or oral. This Agreement may only be modified or amended, or provisions or breach may be waived, by written agreement signed by both parties. The provision of this Agreement shall govern over any inconsistent provisions contained in any Exhibit.
29. NON-WAIVER OF TERMS, RIGHTS AND REMEDIES: Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.
30. SEVERABILITY: Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any term or portion of this Agreement is determined by a court of competent jurisdiction to be invalid, void, illegal, or unenforceable, the remaining provisions of this Agreement shall nevertheless continue in full force and effect and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused these present to be duly executed with all the formalities required by lay on the respective dates set forth opposite their signatures.
City:
City of Manhattan Beach,
a California municipal corporation
By:
Name: Bruce Moe
Title: City Manager
ATTEST:
By:
Name: Liza Tamura
Title: City Clerk
APPROVED AS TO FORM:
By:
Name: Quinn M. Barrow
Title: City Attorney
APPROVED AS TO FISCAL IMPACT:
By:
Name: Steve S. Charelian
Title: Finance Director
APPROVED AS TO CONTENT:
By:
Name: Erick Lee
Title: Public Works Director
Consultant:
Control Automation Design, Inc.
a California corporation
By:
Name: Alice Choi
Title: Owner
DocuSign Envelope ID: 23D8E21B-35C8-48A3-9E03-F7AD78B7F9CB 1/2/2024
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Exhibit A
SCOPE OF WORK
Scope of Work will be as follows:
1. Furnish PLC Panel (Includes PLC, Ethernet Switch, and OIT) Installation And Termination (Panel and Field) By Others
2. Furnish Communications Panel (Telephone Equipment Furnished by City, UPS). Installation And Termination (Panel and Field) By Others
3. Program PLC, OIT, SCADA
4. Program Communication to SCADA
5. Furnish PLC Panel and Communication Panel Submittals (Wiring Diagrams)
6. Training
7. Field Loop Checks
Loop Diagrams By Others
8. Commissioning and Start-Up
9. Specification and Submittal Review (Loop Drawings), if any
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Exhibit B
FEE SCHEDULE
Payments shall be made based on invoices submitted to the City on a monthly basis.
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Exhibit C
CITY INSURANCE REQUIREMENTS
A. Minimum Scope and Limits of Insurance. Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
1) Commercial General Liability Insurance with a minimum limit of $2,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or location. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and it s managers, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.
2) Automobile Liability Insurance for any owned, non -owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $2,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non -owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a non -owned auto endorse ment to the Commercial General Liability policy required under subparagraph A.1) of this Exhibit C. 3) Workers’ Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensation policy is not required, but Consultant shall execute a declaration that it has no employees. 4) Professional Liability Insuran ce [Errors and Omissions Insurance] with minimum limits of $2,000,000.00 per claim and in aggregate.
B. Acceptability of Insurers. The insurance policies required under this Exhibit C shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide.
Self insurance shall not be considered to comply with the insurance requirements under Section 5.
C. Additional Insured. The commercial general and automobile liability policies shall contain an endorsement naming City, its officers, employees, agents and volunteers as additional insureds.
D. Primary and Non-Contributing. The insurance policies required under this Agreement shall apply on a primary non -contributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
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E. Consultant’s Waiver of Subrogation. The insurance policies required under this Agreement shall not prohibit Consultant and Consultant’s employees, agents or subcontractors from waiving the right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.
F. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by City. At City’s option, Consultant shall either reduce or eliminate the dedu ctibles or self-insured retentions with respect to City, or Consultant shall procure a bond guaranteeing payment of losses and expenses.
G. Cancellations or Modifications to Coverage . Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Agreement during the term of this Agreement. The commercial general and automobile liability policies required under this agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration da te, the issuing insurer will endeavor to mail 30 days’ prior written notice to City. If any insurance policy required under this Agreement is canceled or reduced in coverage or limits, Consultant shall, within two business days of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
H. City Remedy for Noncompliance . If Consultant does not maintain the policies of insurance required under this Agreement in full force and effect during the term of this Agreement, or in the event any of Consultant’s policies do not comply with the requirements under Exhibit C, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City ma y, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon. Consultant shall promptly reimburse City for any premium paid by City or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.
I. Evidence of Insurance . Prior to the performance of Services under this Agreement, Consultant shall furnish City’s Risk Manager with a certificate or certificates of insurance and all original endorsements evidencing and effecting the co verages required under this Agreement. The endorsements are subject to City’s approval.
Consultant may provide complete, certified copies of all required insurance policies to City. Consultant shall maintain current endorsements on file with City’s Risk Manager.
Consultant shall provide proof to City’s Risk Manager that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof at least two weeks prior to the expiration of the coverages.
J. Indemnity Requirements not Limiting . Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under Section 8 of this Agreement.
K. Subcontractor Insurance Requirements. Consultant shall require each of its sub contractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Exhibit C.
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Exhibit D
LABOR CODE AND PREVAILING WAGE REQUIREMENTS
1. Consultant acknowledges that the project as defined in this Agreement between Consultant and the City, to which this Terms for Compliance with California Labor Law Requirements is attached and incorporated by reference, is a “public work” as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code (“Chapter 1”). Further, Consultant acknowledges that this Agreement is subject to (a) Chapter 1, including without limitation Labor Code Section 1771 and (b) the rules and regula tions established by the Director of Industrial Relations (“DIR”) implementing such statutes. Consultant shall perform all work on the project as a public work. Consultant shall comply with and be bound by all the terms, rules and regulations described in 1(a) and 1(b) as though set forth in full herein.
2. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of Section 1 of this Exhibit D.
3. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. Consultant acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and Consultant shall post such rates at each job site covered by this Agreement.
4. The project is subject to compliance monitoring and enforcem ent by the DIR. Consultant shall post job site notices, as prescribed by regulation.
5. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. Consultant shall, as a penalty to City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor.
6. Consultant shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Consultant and ea ch sub contractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform City of the location of the records.
7. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code Title 8, Section 200 et seq. concerning the employment of apprentices on public wor ks projects.
Consultant shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, DocuSign Envelope ID: 23D8E21B-35C8-48A3-9E03-F7AD78B7F9CB
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Consultant shall provide City with a copy of the information submitted to an y applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Consultant and each of its sub contractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement.
8. Consultant acknowledges that eight hours labor constitutes a legal day’s work. Consultant shall comply with and be bound by Labor Code Section 1810.
Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. Consultant shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by Consultant or by any sub contractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code Section 1815, work performed by employees of Consultant in excess of 8 hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation f or all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay.
9. For every sub contractor who will perform work on the project, Consultant shall be responsible for such subcontractor’s compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Consultant shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Consultant shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the sub contractor to pay his or her workers the specified prevailing rate of wages.
Consultant shall diligently take corrective action to halt or rectify any failure.
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