Rev. 09-28-18
EXHIBIT B
SCHEDULE OF FEES
1. MAXIMUM COMPENSATION
The total maximum compensation the City will pay the Contractor under this Agreement shall not exceed One Million Seven Thousand Eight Hundred Eighty Dollars ($1,007,880) during the term of the Agreement. Any additional fees, costs and expenses requested by the City that would exceed the preceding maximum amount will be addressed in an Amendment to the Agreement.
2. FEE SCHEDULE
2.1. Contractor shall pay Contractor the amount for each of the tasks described in Exhibit A as follows:
Description Tasks 1-3 Task 4 Task 5 Task 6 Task 7 Total Well 5-02 $78,946.25 $5,880.00 $1,792.00 $62,227.00 $148,845.25 Well 16-02 $78,946.25 $5,880.00 $1,792.00 $62,227.00 $148,845.25 Well 21 $105,170.25 $5,880.00 $1,792.00 $62,227.00 $175,069.25 Well 26 $78,946.25 $5,880.00 $1,792.00 $62,227.00 $148,845.25 Well 34 $105,170.25 $5,880.00 $1,792.00 $62,227.00 $175,069.25 Well 32 $140,101.00 $71,104.60 $211,205.60
TOTAL $587,280.25 $71,104.60 $29,400.00 $8,960.00 $311,135.00 $1,007,879.85
2.2. Contractor shall be paid on a fixed fee basis for Tasks 1 – 6. The fees include all labor, materials, equipment, overhead, general administrative costs, and profit.
2.3. Contractor shall be paid on a time and material basis for Task 7 in accordance with the following rates:
Labor Classification HourlyRate
Principal Hydrogeologist $195
Project Hydrogeologist $145
Staff Hydrogeologist $135
GIS Technician $120
Project Coordinator $105
Clerical $80
Non-Labor Charges
Mileage = $0.585 per mile (i.e., the allowable IRS rate); Field visit (day) = $50; Field visit (overnight) = $160; Transducer rental = $25 per day
2.4. The assumptions made in calculating the amounts in Section 2.1 above are described in Contractor’s Cost Proposal dated July 1, 2022. The amounts may Design Professional Agreement with KYLE Groundwater/Exhibit B-Schedule of Fees
Rev. 09-28-18
change during the project if the assumptions factored in during the cost process change. Any changes in the amounts shall be agreed to by both parties in writing.
3. PAYMENT SCHEDULE
3.1. With respect to progress payments for Tasks 1 – 6. Contractor shall base its invoice on the percentage of services completed during the previous month.
3.2. With respect to payments for Task 7, Contractor shall base its invoice on the hours, professional fees, costs, and charges associated with the services completed during the invoice period in accordance with the fee schedule in Table x.
3.3. City will pay Contractor within thirty (30) days of City’s receipt of an approved invoice.
Design Professional Agreement with KYLE Groundwater/Exhibit C-Insurance Page 16 of 23 Rev. 09-28-18
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Contractor’s indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Contractor’s insurance. The minimum coverages, provisions and endorsements are as follows:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
Design Professional Agreement with KYLE Groundwater/Exhibit C-Insurance Page 17 of 23 Rev. 09-28-18
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned (if any), non-owned and hired autos.
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of one million dollars ($1,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS’ COMPENSATION
1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers’ Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. PROFESSIONAL LIABILITY
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Contractor. Covered services as designated in the policy must specifically include work performed under this agreement. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim or two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorney’s Office.
Design Professional Agreement with KYLE Groundwater/Exhibit C-Insurance Page 18 of 23 Rev. 09-28-18
E. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor’s work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85, or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor’s insurance.
3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of nonrenewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through E of this Exhibit C, above.
Design Professional Agreement with KYLE Groundwater/Exhibit C-Insurance Page 19 of 23 Rev. 09-28-18
F. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
G. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.
H. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.
Upon City’s request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications Design Professional Agreement with KYLE Groundwater/Exhibit C-Insurance Page 20 of 23 Rev. 09-28-18
and other items required to be delivered to City pursuant to this Agreement shall be e-mailed to [email protected]:
Or by mail to:
EBIX Inc.
City of Santa Clara – Water & Sewer Utilities Department P.O. Box 100085 – S2
Duluth, GA 30096
Telephone number: 951-766-2280
Fax number: 770-325-0409
I. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Design Professional Agreement with KYLE Groundwater/Exhibit D-Labor Compliance Page 21 of 23 Rev. 09-28-18
EXHIBIT D
LABOR COMPLIANCE ADDENDUM
This Agreement is subject to the requirements of California Labor Code section 1720 et seq. requiring the payment of prevailing wages, the training of apprentices, and compliance with other applicable requirements.
A. Prevailing Wage Requirements
1. Contractor shall be obligated to pay not less than the General Prevailing Wage Rate, which can be found at www.dir.ca.gov and are on file with the City Clerk’s office, which shall be available to any interested party upon request. Contractor is also required to have a copy of the applicable wage determination posted and/or available at each job site.
2. Specifically, contractors are reminded of the need for compliance with Labor Code Section 1774-1775 (the payment of prevailing wages and documentation of such), Section 1776 (the keeping and submission of accurate certified payrolls) and 1777.5 in the employment of apprentices on public works projects. Further, overtime must be paid for work in excess of 8 hours per day or 40 hours per week pursuant to Labor Code Section 1811-1813.
3. Special prevailing wage rates generally apply to work performed on weekends, holidays and for certain shift work. Depending on the location of the project and the amount of travel incurred by workers on the project, certain travel and subsistence payments may also be required.
Contractors and subcontractors are on notice that information about such special rates, holidays, premium pay, shift work and travel and subsistence requirements can be found at www.dir.ca.gov .
4. Only bona fide apprentices actively enrolled in a California Division of Apprenticeship Standards approved program may be employed on the project as an apprentice and receive the applicable apprenticeship prevailing wage rates. Apprentices who are not properly supervised and employed in the appropriate ratio shall be paid the full journeyman wages for the classification of work performed.
5. As a condition to receiving progress payments, final payment and payment of retention on any and all projects on which the payment of prevailing wages is required, Contractor agrees to present to City, along with its request for payment, all applicable and necessary certified payrolls (for itself and all applicable subcontractors) for the time period covering such payment request. The term “certified payroll” shall include all required documentation to comply with the mandates set forth in Labor Code Section 1720 et seq, as well as any additional documentation requested by the City or its designee including, but not limited to: certified Design Professional Agreement with KYLE Groundwater/Exhibit D-Labor Compliance Page 22 of 23 Rev. 09-28-18
payroll, fringe benefit statements and backup documentation such as monthly benefit statements, employee timecards, copies of wage statements and cancelled checks, proof of training contributions (CAC2 if applicable), and apprenticeship forms such as DAS-140 and DAS-142.
6. In addition to submitting the certified payrolls and related documentation to City, Contractor and all subcontractors shall be required to submit certified payroll and related documents electronically to the California Department of Industrial Relations. Failure to submit payrolls to the DIR when mandated by the project parameters shall also result in the withholding of progress, retention and/or final payment.
7. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
8. No contractor or subcontractor may be awarded a contract for public work on a public works project, unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Contractors MUST be a registered “public works contractor” with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for maintenance work or less than $25,000 for construction alternation, demolition or repair work, registration is not required.
9. All contractors/subcontractors and related construction services subject to prevailing wage, including but not limited to: trucking, surveying and inspection work must be registered with the Department of Industrial Relations as a “public works contractor”. Those you fail to register and maintain their status as a public works contractor shall not be permitted to perform work on the project.
10. Should any contractor or subcontractors not be a registered public works contractor and perform work on the project, Contractor agrees to fully indemnify the City for any fines assessed by the California Department of Industrial Relations against the City for such violation, including all staff costs and attorney’s fee relating to such fine.
11. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
B. Audit Rights
All records or documents required to be kept pursuant to this Agreement to verify compliance with this Addendum shall be made available for audit at no cost to City, at any time during regular business hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such records or documents shall be provided to City for audit at City Hall when it is Design Professional Agreement with KYLE Groundwater/Exhibit D-Labor Compliance Page 23 of 23 Rev. 09-28-18
practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records or documents shall be made available at Contractor’s address indicated for receipt of notices in this Agreement.
C. Enforcement
1. City shall withhold any portion of a payment; including the entire payment amount, until certified payroll forms and related documentation are properly submitted, reviewed and found to be in full compliance. In the event that certified payroll forms do not comply with the requirements of Labor Code Section 1720 et seq., City may continue to hold sufficient funds to cover estimated wages and penalties under the Agreement.
2. Based on State funding sources, this project may be subject to special labor compliance requirements of Proposition 84.
3. The City is not obligated to make any payment due to Contractor until Contractor has performed all of its obligations under these provisions. This provision means that City can withhold all or part of a payment to Contractor until all required documentation is submitted. Any payment by the City despite Contractor’s failure to fully perform its obligations under these provisions shall not be deemed to be a waiver of any other term or condition contained in this Agreement or a waiver of the right to withhold payment for any subsequent breach of this Addendum.
City or the California Department of Industrial Relations may impose penalties upon contractors and subcontractors for failure to comply with prevailing wage requirements.
These penalties are up to $200 per day per worker for each wage violation identified; $100 per day per worker for failure to provide the required paperwork and documentation requested within a 10-day window; and $25 per day per worker for any overtime violation.
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-08 Agenda Date: 8/16/2022
REPORT TO COUNCIL
SUBJECT
Action on an Agreement with Advanced Mobility Group for Design Professional Services for the Lick Mill Boulevard Pedestrian Beacon Upgrade and Monroe Street at Los Padres Boulevard Traffic Signal Modification Project
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
In September 2020, the Council approved $500,000 of Santana West Settlement funding for the Lick Mill Boulevard Pedestrian Beacon Upgrade project (Agenda Report 20-804). This project is located along Lick Mill Boulevard between Tasman Drive and Montague Expressway. The goal of the project is to enhance transportation safety and mobility along Lick Mill Boulevard by upgrading the three existing flashing beacons located along the corridor to newer standards. The locations include a curve warning beacon south of Tasman Drive and pedestrian crossings at Lick Mill Park and at Fitzpatrick Way. At the pedestrian crossings, the existing flashing yellow beacons will be replaced with pedestrian activated Rectangular Rapid Flashing Beacons (RRFBs). The project will also complete pedestrian improvements including new signage and striping, modifications to the concrete median at Fitzpatrick Way, and upgrades to the existing curb ramps to meet Americans with Disabilities Act (ADA) standards.
In June 2020, the Council approved Gas Tax funding as part of the FY 2020/21 and FY 2021/22 Biennial Capital Improvement Program Budget, for the Monroe Street at Los Padres Boulevard Traffic Signal Modification project. This project will upgrade the traffic signal at the intersection to provide left turn arrows for vehicles turning left from Monroe Street onto Los Padres Boulevard.
Monroe Street is currently striped with left turn pockets in each direction but does not have left turn arrow signals. The project will modify the signal to add the left turn signals, install fiber optic communications, upgrade traffic signal equipment to the latest City standards, and upgrade the curb ramps to meet ADA standards.
Since both projects have similar types of work related to traffic and pedestrian improvements, staff combined these two projects into one project titled Lick Mill Boulevard Pedestrian Beacon Upgrade and Monroe Street at Los Padres Boulevard Traffic Signal Modification Project (“Project,” see Attachment 1 for Project Location Map). Administering the design and construction as one combined project allows the City to hire one engineering consultant to design the project and one construction contractor which creates staffing efficiencies and has the potential to reduce construction mobilization costs and unit costs (i.e. contractor can procure greater quantities of materials at lower prices).
Additionally, creating one combined project will reduce staff management and administration time necessary to deliver this project.
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22-08 Agenda Date: 8/16/2022
DISCUSSION
A formal selection process was utilized to solicit proposals from consultants to provide the required professional services. In 2020, an on-call list of prequalified consultants for traffic engineering services was established through a competitive Statement of Qualifications (SOQ) process. The prequalified consultant list to provide traffic engineering services for a period of five years includes six firms (Advanced Mobility Group, DKS Associates, Hexagon, Iteris, Kimley-Horn and Associates, and W-Trans). In March 2022, staff issued a competitive Call for Proposals (CFP) for the Project to the firms on the prequalified consultant list. Staff received proposals from three firms: Advanced Mobility Group, Iteris, and Kimley-Horn and Associates.
A proposal review panel consisting of staff from the Department of Public Works evaluated each proposal against the criteria set forth in the CFP, including project specific qualifications, availability of staff resources, project approach, completeness and depth of scope of services, and project schedule. Based on the panel’s evaluation, Advanced Mobility Group (AMG) submitted the best proposal and is recommended for award of contract. AMG demonstrated a strong project understanding and provided an excellent project approach to investigate and resolve the issues presented in the CFP. AMG has extensive traffic engineering experience working in the Bay Area and has demonstrated successful performance with other traffic related projects for the City.
The proposed agreement (Attachment 2) includes a refined scope of services based upon negotiations and the understanding of the work to be performed. The scope of services generally includes project management and coordination, preliminary engineering and evaluation, construction documents (plans, specifications, and estimates) for public works bidding, and engineering support services during bid, award, and construction.
Staff recommends entering into the agreement with Advanced Mobility Group for the Lick Mill Boulevard Pedestrian Beacon Upgrade and Monroe Street at Los Padres Boulevard Traffic Signal Modification Project to allow the Project to move into the design phase. The agreement includes prevailing wage requirements.
ENVIRONMENTAL REVIEW
This Agreement is for design professional services and the action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act ("CEQA") Guidelines section 15378 as the action being considered does not commit the City to undertake the project and future discretionary approvals are required by the City to approve the project for construction. However, it is expected that the CEQA determination for this project will be a categorical exemption pursuant to CEQA Guidelines section 15301(c) Existing Facilities.
FISCAL IMPACT
The proposed agreement is for a total not-to-exceed amount $136,818. This amount includes $124,380 for basic services, and $12,438 for additional services. FY 2022/23 Funds are available for the agreement in the Streets and Highways Capital Fund in the Monroe - Los Padres Traffic Signal Modification project.
COORDINATION
This report has been coordinated with the Finance Department and the City Attorney’s Office.
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22-08 Agenda Date: 8/16/2022
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
1. Approve and authorize the City Manager to execute an agreement for Design Professional Services with Advanced Mobility Group for the Lick Mill Boulevard Pedestrian Beacon Upgrade and Monroe Street at Los Padres Boulevard Traffic Signal Modification Project in the amount not-to-exceed $136,818; and
2. Authorize the City Manager to make minor modifications to the agreement if needed and to extend the term.
Reviewed by: Craig Mobeck, Director of Public Works
Approved by: Rajeev Batra, City Manager
ATTACHMENTS
1. Project Location Map
2. Agreement
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Project Location
Hope Dr
Lick Mill Blvd
MontagueExpwy
TasmanDrive
LafayetteStreet
Fitzpatrick
Lick Mill Park
Curve warning
ATTACHMENT 1 - PROJECT LOCATION MAP (1 OF 2)
--Project Map--
Lick Mill Blvd
Pedestrian Beacon Upgrade
Project Location
Cabrillo Ave
El Camino Real
SanTomasExpwy
Scott Blvd
Monroe St.
Los Padres Blvd.
ATTACHMENT 1 - PROJECT LOCATION MAP (2 OF 2)
--Project Map--
l\/lonroe-Los Padres
Traffic Signal l\/lodification
Design Professional Agreement with Advanced Mobility Group Page 1 Rev. 09-28-18
EBIX Insurance No. S200004955
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
ADVANCED MOBILITY GROUP
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Advanced Mobility Group, a California corporation, (Consultant). City and Consultant may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”
RECITALS
A. City desires to secure the design professional services for the Lick Mill Blvd Pedestrian Beacon Upgrade and Monroe St at Los Padres Blvd Traffic Signal Modification Project, and more fully described in this Agreement, at Exhibit A, entitled “Scope of Services”; and
B. “Design professional” includes licensed architects, licensed landscape architects, registered professional engineers and licensed professional land surveyors; and C. Consultant represents that it, and its subconsultants, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
D. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.
The Parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Consultant shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A – Scope of Services
Exhibit B – Schedule of Fees
Exhibit C – Insurance Requirements
Design Professional Agreement with Advanced Mobility Group Page 2 Rev. 09-28-18
Exhibit D – Labor Compliance Addendum (if applicable)
This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin upon written Notice to Proceed provided to Consultant by City and terminate at the completion of work described in Exhibit A – Scope of Services.
3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Consultant shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.
A. All reports, costs estimates, plans and other documentation which may be submitted or furnished by Consultant shall be approved and signed by an appropriate qualified licensed professional in the State of California.
B. The title sheet for specifications and reports, and each sheet of plans, shall bear the professional seal, certificate number, registration classification, expiration date of certificate and signature of the design professional responsible for their preparation.
4. WARRANTY
Consultant expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions upon which this Agreement is based. Consultant agrees to promptly replace or correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Consultant. If Consultant fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Consultant for the cost incurred by City.
5. QUALIFICATIONS OF CONSULTANT - STANDARD OF CARE
Consultant represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Design Professional Agreement with Advanced Mobility Group Page 3 Rev. 09-28-18
Consultant’s representations regarding its skills and knowledge. Consultant shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
6. COMPENSATION AND PAYMENT
In consideration for Consultant’s complete performance of Services, City shall pay Consultant for all materials provided and Services rendered by Consultant in accordance with Exhibit B, entitled “SCHEDULE OF FEES.” The maximum compensation of this Agreement is one hundred thirty six thousand eight hundred eighteen dollars ($136,818), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Consultant’s expense. Consultant shall not be entitled to any payment above the maximum compensation under any circumstance.
7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) days’ prior written notice to Consultant.
B. Termination for Default. If Consultant fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Consultant.
C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Consultant will deliver to City all City information or material that Consultant has in its possession.
8. ASSIGNMENT AND SUBCONTRACTING
City and Consultant bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Consultant shall not hire subconsultants without express written permission from City.
Contractor shall be as fully responsible to City for the acts and omissions of its subconsultants, and of persons either directly or indirectly employed by them, as Consultant is for the acts and omissions of persons directly employed by it.
Design Professional Agreement with Advanced Mobility Group Page 4 Rev. 09-28-18
9. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
10. INDEPENDENT CONSULTANT
Consultant and all person(s) employed by or contracted with Consultant to furnish labor and/or materials under this Agreement are independent consultants and do not act as agent(s) or employee(s) of City. Consultant has full rights to manage its employees in their performance of Services under this Agreement.
11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Consultant and all other written information submitted to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Consultant which is otherwise known to Consultant or becomes generally known to the related industry shall be deemed confidential.
12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Consultant may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Consultant shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.
13. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Consultant for the purpose of verifying any and all charges made by Consultant in connection with Consultant compensation under this Agreement, including termination of Consultant. Consultant agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Consultant shall bear the Design Professional Agreement with Advanced Mobility Group Page 5 Rev. 09-28-18
cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.
Consultant shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Consultant agrees to assist City in meeting City’s reporting requirements to the State and other agencies with respect to Consultant’s Services hereunder.
14. HOLD HARMLESS/INDEMNIFICATION
To the extent permitted by law, Consultant agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney’s fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, to the extent arising out of, pertaining to, or related to the negligence, recklessness, or willful misconduct of the Consultant, its employees, subconsultants, or agents in the performance, or non-performance, of Services under this Agreement.
15. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Consultant shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
16. WAIVER
Consultant agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City’s review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Department of Public Works
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected], and
[email protected]
Design Professional Agreement with Advanced Mobility Group Page 6 Rev. 09-28-18
And to Consultant addressed as follows:
Advanced Mobility Group
3003 Oak Rd., Suite 100,
Walnut Creek, CA 94597
and by e-mail at [email protected]
The workday the e-mail was sent shall control the date notice was deemed given.
An e-mail transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.
18. COMPLIANCE WITH LAWS
Consultant shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to “The Code of the City of Santa Clara, California” (“SCCC”). In particular, Consultant’s attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Consultant has read and agrees to comply with City’s Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).
19. CONFLICTS OF INTEREST
Consultant certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Consultant and that no person associated with Consultant has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Consultant is familiar with the provisions of California Government Code section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Consultant will advise City if a conflict arises.
20. FAIR EMPLOYMENT
Consultant shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
21. NO USE OF CITY NAME OR EMBLEM
Consultant shall not use City’s name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
Design Professional Agreement with Advanced Mobility Group Page 7 Rev. 09-28-18
22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
23. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.
25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
CONTINUED ON PAGE 8
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives .
Approved as to Form:
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Dated:
Office of the City Attorney
City of Santa Clara
Office of the City Manager
City of Santa Clara
"CITY"
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241 -6771
ADVANCED MOBILITY GROUP
a California corporation
Dated : ____ -4-1-____;:;___~_.,:,::--~--~---
B y (Signature):
Name:
---------\:::~-"7----------""->"'-"b....,_..__._~=-----:-;' / - ~ ---~~-~--------~
Title: Vice President
Principal Place of 3003 Oak Road , Suite 100, Walnut Creek, Business Address : 94597 ------------------
Em a i I Address : [email protected]
Telephone: 415 688 0024
Fax:
"CONSUL TANT'
Design Professional Agreement with Advanced Mobility Group Rev. 09-28-18
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 1 Rev. 09-28-18
EXHIBIT A
SCOPE OF SERVICES
The Services to be performed for the City by the Consultant under this Agreement are set forth below.
I. OBJECTIVE
The City of Santa Clara (hereinafter “CITY”) desires to engage Advanced Mobility Group (hereinafter “CONSULTANT”) from the Prequalified Consultant List for Traffic Engineering On-Call Consultant Services to provide engineering design services to prepare bid documents (plans, specifications, and engineer’s estimate - PS&E) for public works bidding of the Lick Mill Blvd Pedestrian Beacon Upgrade and Monroe St at Los Padres Blvd Traffic Signal Modification Project (hereinafter “PROJECT” or “Project” or “the project”).
CONSULTANT shall provide the services described herein through a Project team, comprised of CONSULTANT and subconsultants as identified as follows:
CONSULTANT: Advanced Mobility Group
Subconsultants to Advanced Mobility Group:
CSG Consultants, Inc. Civil Engineering
Quiet River Land Services, Inc. Land Surveying
Any changes to the Project team during the term of the Agreement shall be approved in writing by CITY.
II. BACKGROUND
Project consists of implementing traffic improvements at two (2) locations:
1. Lick Mill Boulevard Pedestrian Beacon Upgrade:
Lick Mill Boulevard is a North/South four-lane arterial roadway with a raised median island and a posted speed limit of 35 miles per hour. There are two existing crosswalks using flashers and the City has received requests from members of the public to improve safety for pedestrians traversing Lick Mill Boulevard at these locations. Upon review, the City proposes to upgrade the existing crossings to use push button actuated RRFBs and traffic signal mast arm poles. In addition, the City proposes to upgrade an existing curve warning sign to the latest Caltrans Standard.
2. Monroe Street at Los Padres Boulevard Traffic Signal Modification:
Monroe Street is an East/West three-lane arterial roadway with bicycle lanes and a posted speed limit of 35 miles per hour. At the intersection with Los Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 2 Rev. 09-28-18
Padres Boulevard, there is an existing traffic signal with Case 2 load mast arms on all four corners. Upon review, the City proposes to upgrade the traffic signal infrastructure and connect the cabinet devices to the City’s existing fiber optic communication system.
The City’s budget for the Lick Mill Boulevard Pedestrian Beacon Upgrade is approximately $500,000 and the budget for Monroe Street at Los Padres Boulevard Traffic Signal Modification is $680,000, all inclusive of design consultant costs, construction costs, and administrative costs. CONSULTANT shall ensure the improvements to be constructed are completed within this budget.
Further, the requested services include preliminary engineering to assess the project locations and provide recommendations for the most suitable improvements to be constructed within the available project construction budget.
A description of the preliminary engineering desired is described under Task 2:
Preliminary Engineering and Evaluation (Site Evaluation and Technical Memorandum).
This Scope of Services is based upon CITY’s Call for Proposals dated March 1, 2022, and CONSULTANT’s Proposal dated March 21, 2022, incorporated herein by reference, and subsequent discussions between CITY and CONSULTANT.
CITY and CONSULTANT agree that this Scope of Services is anticipated to meet CITY’s objectives for the Project.
III. RESPONSIBILITIES OF CITY
CITY will provide the following information and support regarding the project asavailable and applicable:
Record drawings (as-available)
CITY’s Standard Details, Specifications, Benchmark, and Design Criteria. Storm Drain (SD), Sanitary Sewer (SS), Electric, Fiber, Water and Recycled Water Block Book Maps (as-available).
Geographic Information System (GIS) data including land parcels, street centerlines, City sanitary sewers, City storm drains, and aerial photographic tiles.
Right of Entry Letter template, if required.
Payment of permit application fees, if required.
Filing exemption under the California Environmental Quality Act, if applicable.
CONSULTANT shall expect that all signal equipment required for construction of the project, such as controllers, cabinets, poles, etc. will be furnished by the construction contractor through the construction bid documents and will not be CITY-furnished.
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 3 Rev. 09-28-18
IV. BASIC SCOPE OF SERVICES
The Basic Scope of Services includes all professional services required to prepare construction bid documents (plans, specifications, and engineer’s estimate) for the PROJECT.
1. TASK 1: PROJECT MANAGEMENT AND COORDINATION
CONSULTANT shall:
1.1 Manage its team and overall project activities consistent with the direction from CITY in order to meet the project schedule and budget.
1.2 Coordinate with CITY, design team members, consultants, utility companies, other government agencies, and other affected parties as required throughout the duration of the project as well as the Quality Assurance/Quality Control (QA/QC) activities for project deliverables.
1.3 Prepare, monitor, and update progress schedule in MS Project format beginning at the kickoff meeting and ending at contract award for the last construction package. Schedule shall show significant milestones for the project. CONSULTANT shall notify CITY if there are delays or potential delays in any phase of the project. In such cases, CONSULTANT shall make up the schedule in subsequent phases of the project or provide information to CITY substantiating a request for time extension (which may not be approved). The schedule shall be maintained at all times and shall be updated each time progress and milestones are achieved and/or changed.
1.4 Meetings: Meetings shall be budgeted for and invoiced under each respective Task or activity requiring a meeting and not as project management. Preparation for meetings shall be considered as included in the Task or activity for which the meeting is involved. A kick-off meeting shall be conducted with designated CITY staff prior to beginning work to review anticipated Tasks and schedule, review available information and needs, and address any outstanding questions regarding the project moving forward raised by CITY or CONSULTANT.
1.5 Provide monthly progress reports.
1.6 Conduct QC reviews in accordance with its QA Program guidelines.
CONSULTANT shall provide a copy of its QA Program guidelines and shall provide a QC report at the end of each Task. Time spent for QAQC reviews for specific deliverables shall be budgeted and billed under each respective task requiring QA-QC review and not as Project Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 4 Rev. 09-28-18
Management.
1.7 Invoicing and Contract Administration: CONSULTANT administrative staff time spent preparing invoices for Services complete shall be considered as included in the overhead of the CONSULTANT’s basic hourly rates and shall not be billed. Additionally, addressing administrative issues regarding the professional services agreement, such as preparing additional services requests or budget modifications, shall also be considered as included in the overhead of the CONSULTANT’s basic hourly rates and shall not be billed.
1.8 Only the designated Project Manager or approved delegates performing project management duties shall charge time to Task 1 Project Management. CONSULTANT’s technical staff working on other tasks for the project shall not charge to the project management task. Additionally, if the Project Manager is performing technical work related to other tasks, time spent on those tasks shall be charged to the task and not to project management.
Deliverables:
1. Progress schedule in MS Project format (submitted electronically as an 11” x 17” pdf file and in native MS Project format).
2. QA Program guidelines and QC reports for each Task (in pdf file).
3. Meeting agendas, preparation materials, and meeting minutes for each project meeting (in pdf file), including kick-off meeting minutes.
4. Monthly progress reports and invoices (in pdf file).
2. TASK 2: PRELIMINARY ENGINEERING AND EVALUATION (SITE
EVALUATION AND TECHNICAL MEMORANDUM)
2.1 Site Evaluation/Field Review:
CONSULTANT shall:
2.1.1 Evaluate the improvements for LICK MILL BLVD PEDESTRIAN BEACON UPGRADE such as to install the equipment needed
for a future HAWK upgrade while keeping the project within the budget available. This includes an evaluation that provides and compares the construction elements and costs required for installation of an RRFB and the construction elements, and costs required for installation of a HAWK. This task also includes assessment of current crosswalk configuration at Fitzpatrick Way and determine an optional crosswalk location alternative, if feasible, including a cost comparison between options.
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 5 Rev. 09-28-18
2.1.2 Evaluate the improvements for MONROE ST AT LOS PADRES BLVD TRAFFIC SIGNAL MODIFICATIONS and provide
improvement recommendations to meet the project goals. This includes an evaluation that addresses the installation of new equipment on existing signal poles that were constructed according to the standards in use at the time of original construction.
2.2 Design Recommendation:
Based on preceding Task 2.1, CONSULTANT shall:
2.2.1 Propose recommendations to CITY per Site Evaluation/Field Review task by CONSULTANT. CONSULTANT shall consider
factors such as cost and benefits, constructability, future operations and maintenance considerations.
2.2.2 Prepare a budget level project cost estimate that includes all project costs including construction costs, soft costs, permitting costs (if applicable), contingencies, and all other costs involved to complete the project. The purpose of this budget level project estimate is to ensure adequate funds are available to complete the PROJECT.
2.2.3 Formalize the design recommendation under this Task in a brief technical memorandum for CITY’s review and approval.
CONSULTANT shall meet with CITY to review the
recommendation in the memorandum and anticipate up to two (2) rounds of CITY comments and revisions to the
memorandum provided that the CONSULTANT incorporates the comments and revisions as appropriate for each round of revision. If the City requires justification for HAWK installation, the CONSULTANT shall prepare a HAWK recommendation
document as an optional task.
2.3 Lighting Analysis (Lick Mill Blvd crosswalks and Monroe St intersection):
CONSULTANT shall:
2.3.1 Perform a photometric analysis of the lighting to confirm intersection and crosswalk illumination levels. The analysis and lighting design should consider Caltrans lighting standards, Silicon Valley Power (SVP) standards and the ANSI guidelines included in the City’s Pedestrian Master Plan 2019. SVP currently uses ANSI/IESNA RP-8-00 as its standard for the design and installation of roadway lighting. City’s Pedestrian Master Plan recommends using ANSI/IES RP-8-18:
Recommended Practice for Design and Maintenance of
Roadway and Parking Facility Lighting. CONSULTANT shall confer with CITY prior to performing the lighting analysis to Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 6 Rev. 09-28-18
confirm the criteria to be utilized in the analysis. CONSULTANT shall formalize the results of the analysis in a brief technical memorandum that includes all relevant data, figures, and recommendations and allow for up to two (2) rounds of review and revisions based upon CITY comments.
Deliverables:
1. Technical Memorandum: Site Evaluation Memo containing data, analysis, project cost estimates, and recommendations.
2. Technical Memorandum: Brief memorandum describing the Lighting Analysis.
3. TASK 3: PRELIMINARY DESIGN (35%):
Upon CITY’s approval of improvements from the technical memorandum in Task 2, CONSULTANT shall:
3.1. Collect and review relevant reports, record drawings, data, maps and other documents relevant to defining the limits and scope of design for the project. CONSULTANT shall also take the lead on confirming the location and alignment of existing underground utilities with the appropriate utility companies and provide an allowance within their proposal for coordinating any relocation of utilities should it become necessary. CONSULTANT’s design should account for existence of existing underground infrastructure and CONSULTANT shall perform all due-diligence necessary to avoid conflicts between the existing and new infrastructure.
3.2. CITY will provide utility maps for CITY owned storm drain, sanitary sewer, water/recycled water, and electric utility. Other non-City owned utility information will need to be coordinated by CONSULTANT with outside agencies and companies, including gas and communications.
The CONSULTANT shall prepare “A” letters during the preliminary design phase. The information obtained as a result of the “A” letter shall be transferred to the base maps prepared for the project.
CONSULTANT shall provide CITY a draft copy of the letter prior to sending it to the utility, maintain log of all information sent and received, and provide CITY all information received from the “A”: letter process.
CONSULTANT shall prepare a utility base map from information received through as-builts, field reviews, utility maps, and observation of above-ground of any high-risk utilities that has potential affect the work during construction to be used in the project plans.
3.3. Perform design grade topographic survey of the project areas and/or Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 7 Rev. 09-28-18
intersections of the proposed improvements. Topographic surveys are required for all intersections from public right-of-way/property lines on one side of the street to public right-of-way lines on the other side of the street. Topographic survey will be required at locations where new curb ramps are to be installed to meet ADA and City standards. The design assumes presence and use of existing conduit along Monroe Street for the interconnect between the Los Padres and Scott Boulevard intersections. Information for the conduit will be based upon as-builts and field reviews. If new conduit is required to be installed, the background mapping and design required for installation of the new conduit will be considered as an Optional Task.
3.4. Coordinate with Silicon Valley Power (SVP) to identify and show locations of and arrange for electric service for the new flashing beacons or other powered devices if needed.
3.5. Prepare a set of preliminary design plans (35% level) for use in exhibits and/or contract drawings. At a minimum, the 35% design plans shall include, but not limited to, existing utilities, City right-of-way lines, existing improvements such as sidewalk, curb, and gutter, roadway, curb ramps, existing traffic equipment/signals, poles/pull boxes including existing roadway delineation markings and striping, and geometry and major features of proposed improvements. A preliminary estimate of the probable construction costs shall also be included.
3.6. If the CITY decides to proceed with HAWK design at the Lick Mill Boulevard Crossing(s), the CONSULTANT shall include HAWK design elements as part of the Optional Task, if directed in writing by City.
Deliverables:
1. Utility letter(s), tracking log, and information received.
2. Preliminary Design Plans (35%) and Estimate.
4. TASK 4: CONSTRUCTION DOCUMENTS (65%, 95%, 100%, and FINAL
BID SET SUBMITTALS)
4.1. 65% Construction Documents Package
CONSULTANT shall perform engineering and design activities to develop a 65% level of completion construction documents The CONSULTANT shall prepare the Utility Letter “B” during the 65% design phase. The 65% design plans will be provided to each utility owners that verified any utility conflicts within the proposed improvement area. The information on existing utilities obtained as a Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 8 Rev. 09-28-18
result of the “B” letter shall be used to determine utility conflicts.
CONSULTANT will make modifications to the design to avoid conflicts with existing utilities. The 65% submittal shall be considered as a complete package necessary to bid the PROJECT, and subsequent submittals shall provide opportunities to further refine the contract documents.
4.1.1. Construction Documents
The 65% construction documents submittal shall follow the guidelines of the most current City Design Criteria and Standard Details and shall include Plans, Specifications, Engineer’s Cost Estimate, and Probable Project Construction Schedule, in accordance with the following:
4.1.1.1. The Plans shall be complete and show property lines, existing high-risk utilities, and major construction
features.
4.1.1.2. CITY’s preferred plan format is 22” x 34” sized sheets at a legible scale.
4.1.1.3. Specifications shall include all Technical
Specifications or Special Provisions required to
construct the project. CITY will prepare the “upfront”
contract specifications, i.e. Divisions 0 and 1
specifications of CITY’s boilerplate. CONSULTANT
shall provide all information required for CITY to
complete the boilerplate. This information includes:
Description of work
Type of Construction Consultant’s License
required
Schedule of Bid Prices
Requirements for Construction Consultant’s
Statement of Qualifications (e.g. experience
requirements for previous construction contracts
and contract values).
Recommendations for appropriate Liquidated
Damages
Identification of any changes to the CITY’s
boilerplate that are required
4.1.1.4. CONSULTANT shall be familiar with CITY’s standard specifications and provide all Technical Specifications or Special Provisions such that they supplement, and
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 9 Rev. 09-28-18
do not conflict with, and are not redundant with the
standard specifications. Changes to the CITY’s
boilerplate or deviations from the standard
specifications shall be addressed by incorporating
appropriate information into the project Technical
Specifications or Special Provisions.
4.1.1.5. The Engineer’s Cost Estimate shall be an itemized list of bid items and shall be accurate and prepared
based upon current construction pricing and
escalated to time of mid-construction using
engineering judgement. CONSULTANT shall review
recent bids, and contact vendors, suppliers, and
construction consultants as necessary to develop an
accurate cost estimate.
4.1.1.6. The probable construction schedule will be used to establish the construction contract duration (e.g.
number of working days) in the project specifications.
The construction schedule does not need to be
detailed, but it should contain enough information to
accurately determine the construction contract
duration.
4.1.1.7. CONSULTANT shall conduct a quality control (QC) review of the submittal in accordance with
CONSULTANT’s Quality Assurance/Quality Control
(QA/QC) program.
4.1.2. Response to Comments
4.1.2.1. CITY will circulate the submittal package to internal CITY departments for review and comments.
CONSULTANT shall be responsible for submitting the
package to external stakeholders if required.
CONSULTANT shall prepare written responses to all
written comments received. All redlined drawings shall
be returned with CONSULTANT’s response on the
redlined drawings.
4.1.2.2. CONSULTANT shall be responsible for resolving
comments from each commenter and shall identify to
CITY any comments that cannot be resolved.
CONSULTANT shall conduct a 65% comments review
meeting with CITY to discuss comments on the
submittal package, to identify any significant design
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 10 Rev. 09-28-18
issues, and gain concurrence as to how the submittal
shall be revised as appropriate to incorporate CITY’s
comments. The review meeting will be held at CITY.
Deliverables:
1. 65% Design Submittal Package (Plans, Specifications, Engineer’s cost estimate, and project construction schedule).
2. Written response to comments.
3. 65% review meeting agenda and meeting minutes.
4.2. 95% Construction Documents Package
CONSULTANT shall perform engineering and design activities to develop a 95% level of completion construction documents that include updated Plans, Specifications, Engineer’s Cost Estimate, Probable Project Construction Schedule, in accordance with the following:
4.2.1. Construction Documents:
4.2.1.1. The 95% submittal package shall incorporate
comments received from CITY on the 65% submittal
package. The submittal shall include a written
response to CITY comments including a description of
how the comments were/were not incorporated into the
submittal package. All redlined drawings shall be
returned with CONSULTANTS response on the
redlined drawings.
4.2.1.2. CONSULTANT shall conduct a quality control (QC) review of the submittal in accordance with
CONSULTANT’s Quality Assurance/Quality Control
(QA/QC) program.
4.2.1.3. CONSULTANT shall submit the 95% plans to affected utility owners for their use and information.
4.2.1.4. CONSULTANT shall assist CITY in obtaining approval of the plans by the CITY Building Department and
issuance of building permit(s). Building permits are
anticipated as necessary for the electric services
required for the project.
4.2.2. Response to Comments
4.2.2.1. CITY will circulate the submittal package to internal CITY departments for comments. CONSULTANT shall
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 11 Rev. 09-28-18
be responsible for submitting the package to external
stakeholders if required. CONSULTANT shall prepare
written responses to all comments received. All
redlined drawings shall be returned with
CONSULTANTS response on the redlined drawings.
CONSULTANT shall be responsible for resolving
comments from each commenter and shall identify to
CITY any comments that cannot be resolved.
CONSULTANT shall conduct a 95% comments review
meeting with CITY to discuss comments on the
submittal package and gain concurrence as to how the
submittal shall be revised as appropriate to incorporate CITY’s comments. The review meeting will be held at
CITY.
Deliverables:
1. 95% Design Submittal Package (Plans, Specifications, Engineer’s cost estimate, and project bid and construction schedule), submitted electronically as PDF.
2. Written response to CITY comments on the 95% design
submittal.
3. 95% review meeting agenda and meeting minutes.
4.3. 100% Construction Documents Package
CONSULTANT shall finalize the Plans, Specifications, Engineer’s cost estimate, and construction schedule based on the 95% review comments from CITY. All outstanding comments and issues from previous submittals shall be incorporated into the 100% construction document package. The 100% Construction documents shall be considered as complete with no future revisions planned nor deemed necessary. Should new electric services be necessary for the project, a building permit will be required from CITY’s Building Department.
CITY will submit the 100% design plans to the Building Department for review and issuance of the building permit. Should any revisions to the plans become required from the Building Department in order to issue the building permit, these revisions will be incorporated in the subsequent Final Bid Set Documents submittal. The CONSULTANT shall prepare the Utility Letter “C” during 100% design phase. The letter shall indicate to the utility owners of any changes that have been made since the Utility Letter “B” to avoid conflict with their existing utility. The CONSULTANT will make all efforts to avoid any utility relocation as part of this project through design modification. However, if utility relocation cannot be avoided, the Letter “C” shall identify and request written confirmation of utility relocation and relocation schedule.
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 12 Rev. 09-28-18
The 100% construction package shall include final Plans, Specifications, Engineer’s Cost Estimate, and Probable Project Construction Schedule, in accordance with the following:
4.3.1. The 100% construction package shall incorporate comments received from CITY on the 95% submittal package. The
submittal shall include a written response to CITY comments including a description of how the comments were/were not incorporated into the submittal package. All redlined drawings shall be returned with CONSULTANTS response on the
redlined drawings.
4.3.2. CONSULTANT shall conduct a quality control (QC) review of the submittal in accordance with CONSULTANT’s Quality
Assurance/Quality Control (QA/QC) program.
4.3.3. PEER Review: Peer review shall have been accomplished by this stage, with the statement and signature on the cover sheet.
The PEER reviewer may be from the CONSULTANT’s
organization but shall be independent from the Project design staff. The professional shall sign, date and seal the following Certification of Peer Review on a letterhead document with the transmittal of the final plans and specifications:
“The undersigned hereby certifies that a professional peer review of these plans and the required designs was conducted by me, a professional engineer with expertise and experience in the appropriate fields of engineering equal to or greater than the Engineer of Record, and that appropriate corrections have been made.”
The PEER Review Statement shall also be placed on the plans title sheet and signed by the responsible individual.
4.3.4. CONSULTANT shall review previous projects of agencies near CITY and prepare a list of potential bidders for the project.
4.3.5. Response to Comments
CITY will circulate the submittal package to internal CITY departments for comments. CONSULTANT shall be responsible for submitting the package to external stakeholders if required.
CONSULTANT shall prepare written responses to all comments received. All redlined drawings shall be returned with
CONSULTANTS response on the redlined drawings.
CONSULTANT shall be responsible for resolving comments
from each commenter and shall identify to CITY any comments that cannot be resolved. CONSULTANT shall conduct a 100% Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 13 Rev. 09-28-18
comments review meeting with CITY to discuss comments on the submittal package and gain concurrence as to how the submittal shall be revised as appropriate to incorporate CITY’s comments. The review meeting will be held at CITY.
Deliverables:
1. 100% Design Submittal Package (Plans, Specifications, Engineer’s cost estimate, and project bid and construction schedule).
2. Written response to CITY comments on the 100% design submittal.
3. 100% review meeting agenda and meeting minutes.
4. List of potential bidders in MS Excel format and shall include the company’s name, email address, contact number, and address of business.
4.4. Final Bid Set Documents
The submittal shall be considered as a limited submittal to formalize and sign the Final Bid Set documents, and resolution of any minor issues remaining from the 100% Design Submittal package. This submittal shall address any comments from CITY’s Building Department as part of the building permit process, if required.
The final submittal shall consist of final Plans and Specifications, signed, stamped and dated by CONSULTANT in responsible charge for their preparation, including PEER Review Statement, and be considered ready to bid. The final submittal shall be ready for CITY staff approval signatures.
Deliverables:
1. Stamped, signed, and dated Final Plans for CITY signature (two original hard copies and electronic files in AutoCAD and PDF formats).
2. Stamped, signed, and dated Final Specifications and supporting documents meeting CITY’s requirements for bidding purposes (two original hard copies and electronic files in MS Word and .PDF formats).
3. Final Engineer’s cost estimate (two hard copies and electronic files in MS Excel and .PDF formats).
4. Final construction schedule (two hard copies and electronic files in MS Project and .PDF formats).
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 14 Rev. 09-28-18
5. TASK 5: BID SUPPORT ASSISTANCE
CONSULTANT shall:
5.1. Provide clarifications and assistance during the bidding phase to satisfactorily answer any questions from prospective bidders, if requested by CITY. CITY to reproduce and distribute Contract Documents, maintain a plan holder’s list and log of bidder’s questions and responses.
5.2. Attend Pre-Bid Meeting, if required by Project. CONSULTANT shall coordinate with CITY to prepare agenda and meeting minutes.
5.3. Prepare Addenda to Construction Documents, if needed. CITY to reproduce and distribute all addenda.
5.4. Assist CITY in evaluating bids and preparation of recommendation letter to award the contract, if needed.
5.5. If addenda are issued, prepare a conformed set of documents that incorporated addenda into the documents.
Deliverables:
1. Written clarifications and response to prospective bidders, if needed
2. Addenda to the Bid Documents, if needed.
3. Written recommendation for award of contract, if needed.
4. Conformed construction documents, if needed.
6. TASK 6: CONSTRUCTION SUPPORT
THE CITY’s construction management team will have primary responsibility for construction management and inspection. CONSULTANT shall:
6.1. Attend Pre-Construction Meeting upon request by CITY and respond to pre-construction meeting questions.
6.2. Review and approve shop drawings and submittals, including mix designs. Assuming four rounds of reviews and comments for each submittal. This Scope of Services and Schedule of Fees is agreed by CITY and CONSULTANT as being adequate to address the number and types of submittals anticipated for the Project based upon CITY’s and CONSULTANT’s experience.
6.3. Review construction consultant’s request for information (RFI’s) and furnish additional drawings and/or specifications for supplementing, clarifying, and/or correcting purposes.
6.4. Attend meetings (assume 3) and site visits when necessary as Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 15 Rev. 09-28-18
determined and requested by CITY. Meetings and site visits shall be coordinated whenever possible.
6.5. Assist CITY with the review of construction, and other activities, as requested.
6.6. Prepare, review, and recommend approval of design related change orders, as requested.
Deliverables:
1. Shop drawing and submittal comments.
2. RFI responses.
3. Site visit memoranda, as required. Limited to 4 visits plus punch-list walk-thru.
4. Drawings and specifications for supplementing, clarifying, and/or correcting the contract documents and for design related change orders.
5. Change orders, as required.
7. TASK 7: RECORD DRAWINGS AND PROJECT CLOSE-OUT
CONSULTANT shall:
7.1. Upon request by CITY, in accordance with Bid Documents, CONSULTANT shall assist CITY in determining if the Project is ready for the stage of completion requested by the construction consultant (Substantial and Final Completion). Attend the Final Walkthrough to provide input to final “punch list” and help determine if the work is ready for CITY acceptance. CONSULTANT shall provide CITY with a written recommendation.
7.2. At Final Completion of the Project, provide CITY with one set of reproducible Record Drawing that reflects the changes to the work during construction based upon marked up prints, drawings, and other data furnished by the construction consultant, CITY, and Consultants.
If CONSULTANT adds additional sheets to the plans, these shall be properly numbered, properly referenced on other affected drawings, and included in the drawing sheet index.
7.3. Provide a complete set of the Record Drawings and all X-ref files “bound,” including other associated fonts, plot style files on AutoCAD, including electronic copies in PDF format. CONSULTANT may, at its own expense, prepare and retain a copy of each drawing for its permanent file.
7.4. CONSULTANT shall provide to the City of Santa Clara, relevant digital Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 16 Rev. 09-28-18
products and related information (e.g. notes, recommendations, photographs, etc.), including land survey records and data (e.g. tridimensional geodetic and/or geographic coordinates).
Deliverables:
1. FINAL Punch List input and written recommendations for substantial and/or final completion.
2. Record Drawings on a CD using AutoCAD, and one set electronic copy in PDF format.
3. CD containing PDF copies of all submittals received during construction phase.
8. TASK 8: OPTIONAL TASKS (REQUIRES CITY AUTHORIZATION) If deemed necessary during the term of the Agreement, CITY may require CONSULTANT to perform Optional Tasks as part of the Scope of Services to be provided. Optional Tasks shall be authorized by CITY in writing prior to CONSULANT performing the Optional Task. CONSULTANT will only be compensated for the if approved by CITY in writing prior to performing work.
Fees for Optional Tasks shall be as set forth in the Schedule of Fees.
8.1. Optional Task: Utility Potholing
If deemed necessary to positively locate existing underground infrastructure based upon review of utility record information in relation to the proposed improvements during the Preliminary Design (35%) or subsequent task, CONSULTANT shall perform vacuum excavation potholing for utility verification. CONSULTANT will ask that the City request USA marking at the intersection in advance of the design team going out and identifying the critical utilities/locations where potholing information would help make final design decisions. The Schedule of Fees included in Attachment B is a budget allowance and assumes Twelve (12) potholes. Prior to performing any work under this task, CONSULTANT shall provide a written quotation for the actual number of potholes necessary for the work. Utility potholes will be backfilled with CDF and the pavement will be restored in accordance with City Standard Detail ST-25. This task shall only be invoiced if agreed by CITY and CONSULTANT in writing prior to performing work. It is assumed that CITY will issue a no-fee encroachment permit.
Deliverables:
1. Potholing Data (in pdf format)
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 17 Rev. 09-28-18
8.2. Optional Task: HAWK Recommendation Document
If deemed necessary to provide justification for the installation of HAWK signals at the Lick Mill Boulevard crossings, CONSULTANT shall prepare the HAWK recommendation document. The task shall include collecting the needed traffic and pedestrian data to check the recommended criteria for a HAWK in the CA MUTCD. The task shall also include assessment of available stopping distance. CONSULTANT shall formalize the results of the analysis in a brief technical document that includes all relevant data, figures, and recommendations and allow for up to one (1) round of review and revisions based upon CITY comments.
Deliverables:
1. HAWK Recommendations Document (in word and pdf format)
8.3. Optional Task: HAWK Design
If authorized by CITY, the CONSULTANT shall include the design of HAWKs at the Lick Mill Boulevard Crossings in the PS&E Package in place of RRFBs as described in Task 3.
Deliverables:
1. Replace RRFB design with HAWK Signal Design in construction documents (Task 3).
8.4. Optional Task: Signal Interconnect Conduit Design
If authorized by CITY, the CONSULTANT shall include the plans background information and design required to construct new conduit, pull boxes, and other necessary elements to install new signal interconnect conduit along Monroe Street between Los Padres Boulevard and Scott Boulevard. Plans background information considered necessary includes linework of existing surface improvements based upon as-built drawings, aerial photos, or GIS and existing utility information. The Consultant shall field verify the as-builts and will perform utility-coordination for a new conduit run on the north side of the roadway. If potholing of existing utilities during design required, it shall be considered as included under Optional Task 8.1.
Deliverables:
1. Add signal interconnect conduit design to construction documents (Task 3).
Design Professional Agreement with Advanced Mobility Group/Exhibit A-Scope of Services Page 18 Rev. 09-28-18
V. ADDITIONAL SERVICES
CITY reserves the right to add, delete, or modify services to be performed by CONSULTANT throughout the course of services under this Agreement based upon CITY’s needs. CONSULTANT shall not proceed without any additional services not described under Basic Scope of Services under this Agreement without written authorization.
Design Professional Agreement with Advanced Mobility Group/Exhibit B-Schedule of Fees Page 1 Rev. 09-28-18
EXHIBIT B
SCHEDULE OF FEES
I. GENERAL PAYMENT
Billing shall be on a monthly basis based on the services performed for each task.
CONSULTANT shall, during the term of this Agreement, invoice the City for hours and dollars of work completed under this Agreement. The invoice shall describe the Task invoiced, percent complete of the Task, time and materials expended by Task, and total amount during the invoice period. The invoice shall also show the total to be paid for the invoice period. All invoices shall provide a written description of work performed during the invoice period, deliverables completed, and progress to date on Tasks being invoiced in order to support the amount invoiced. Further, CONSULTANT shall clearly indicate on the invoice the percentage (%) of fee ratio for work done for the Lick Mill Blvd Pedestrian Beacon Upgrade and the percentage (%) of fee ratio for work done for the Monroe St at Los Padres Blvd Traffic Signal Modification, e.g., 40% for Lick Mill, 60% for Monroe.
The total payment to the CONSULTANT for Basic Services, as stated in Exhibit A, Scope of Services, shall not exceed $124,380. The amount billed to City for pre-approved Additional Services shall not exceed the sum of $12,438. In no event shall the amount billed to City by CONSULTANT for services under this Agreement exceed $136,818 subject to budget appropriations.
II. BASIC SERVICES
The total payment to CONSULTANT for all work necessary for performing all Tasks, as stated in Exhibit A, Scope of Services, shall be in proportion to services rendered and, on a time, and materials not-to-exceed basis.
The CONSULTANT fee allocated to each Task, as shown below, shall be the CONSULTANT’s full compensation for all the CONSULTANT services required for the Project and by this Agreement, as directed by the City, and no additional compensation shall be allowed. City may reallocate budget from Tasks to other Tasks or to or from Additional Services. The CONSULTANT shall bill time and materials spent on a Task under the appropriate Task and will not be allowed to charge to future or inactive tasks unless approved in writing by City. The CONSULTANT shall provide a summary of dates and hours charged per date by individual, and individual timesheets, if requested by City. The hours and amounts charged to each Task shall be proportionate to the services rendered.
Tasks denoted as Optional Tasks, as stated in Exhibit A, require pre-approval in writing by CITY prior to performing any services under the task. Payment for any Optional Task is allowed only if written authorization is given by the City in advance of the work to be performed. Fees for Optional Tasks shall be considered as Basic Services. City may reallocate budget to or from Optional Tasks to or from other Tasks or to or from Additional Services.
Design Professional Agreement with Advanced Mobility Group/Exhibit B-Schedule of Fees Page 2 Rev. 09-28-18
The total amount of all the Tasks is a not-to-exceed amount. Figures in the following table include all subconsultant costs, reimbursable expenses, and administrative markups. The following table is a summary of the Tasks based upon the Cost Proposal submitted by Advanced Mobility Group on June 07, 2022, and agreed by CITY and CONSULTANT incorporated herein by reference.
CONSULTANT shall invoice time and expenses according to the subtasks identified in the Proposal. The time and expenses billed for subtasks may vary above or below the fees identified in the Proposal provided that the total billed for all subtasks billed under a Task remains within the Fee established for the Task. Upon mutual agreement between CITY and CONSULTANT in writing, subtasks may be combined as needed to facilitate CONSULTANT’s invoicing.
Description Amount
Task 1 Project Management and Coordination $4,570
Task 2 Preliminary Engineering (Site Evaluation
and Technical Memorandum)
$7,430
Task 3 Preliminary Design (35%) $31,795
Task 4 Construction Documents (65%, 95%,
100%, and Final Bid Set)
Subtask 4.1 65% Construction Documents
Package
$12,690
Subtask 4.2 95% Construction Documents
Package
$8,530
Subtask 4.3 100% Construction Documents
Package
$4,585
Subtask 4.4 Final Bid Set Construction Documents
Package
$2,410
Task 5 Bid Support Assistance $3,690
Task 6 Construction Support $14,060
Task 7 Record Drawing and Project Closeout $4,200
Task 8 Optional Task (Requires City
Authorization)
Subtask 8.1 Utility Potholing $15,000
Subtask 8.2 HAWK Recommendation Document $3,540
Subtask 8.3 HAWK Design $5,640
Subtask 8.4 Signal Interconnect Conduit Design $6,240
Total $ 124,380
In no event shall the amount billed to City by Consultant for Basic Services under this Agreement exceed one hundred twenty-four thousand three hundred and eighty dollars ($124,380), subject to budget appropriations.
Design Professional Agreement with Advanced Mobility Group/Exhibit B-Schedule of Fees Page 3 Rev. 09-28-18
III. REIMBURSABLE EXPENSES
Reimbursable Expenses shall not be billed by the Consultant or subconsultant under this Agreement. Full compensation for all expenses shall be considered included in the hourly rates.
IV. ADDITIONAL SERVICES
Additional Services consists of work not included in the Scope of Services outlined within this Agreement. Pre-approved Additional Services shall be billed to City at the fixed hourly rates shown below in Section V, RATE SCHEDULE, or at an agreed negotiated price. Monthly billing for Additional Services shall be consistent with the terms set forth in this Agreement. Payment for any Additional Services is allowed only if written authorization is given by the City Engineer in advance of the work to be performed.
(CONTINUE ON NEXT PAGE)
Design Professional Agreement with Advanced Mobility Group/Exhibit B-Schedule of Fees Page 4 Rev. 09-28-18
V. RATE SCHEDULE
Charges for personnel engaged in professional and/or technical work are based on the actual hours directly chargeable to the project.
Rates by classification are listed below and shall be fixed through December 31, 2023. No adjustment to the rates will be allowed during the term of this Agreement unless otherwise agreed in writing by City. Any classifications added, or staff members changing classifications, shall be approved in writing by City.
After December 31, 2023 rates may be adjusted as described herein. CONSULTANT shall propose any adjusted rates in writing for CITY’s consideration and acceptance in writing. Adjusted rates shall be no more than the percentage of difference between the Consumer Price Index (CPI) for Urban Wage Earners and Clerical Workers for the San Francisco-Oakland-Hayward, CA, area between the effective date of this Agreement and the CPI as may be available and nearest to and in advance of the month in which the adjustment is contemplated and shall be capped at a maximum of 3% for each adjustment. Only one adjustment is allowed per annum.
Consultant Advanced Mobility Group:
Classification Hourly Rate
Vice President $ 260.00
Principal $ 230.00
Project Manager $ 210.00
Senior Project Engineer $ 150.00
CAD Technician $120.00
Engineering Technician $150.00
Sub-consultant CSG Consultants, Inc:
Classification Hourly Rate
Project Manager $225.00
Assistant Project Manager $150.00
Sub-consultant Quiet River Land Services, Inc.:
$875 per one intersection corner survey.
Advanced Mobility Group will bill subconsultants at actual cost without markups..
Subconsultants to Advanced Mobility Group will bill their subconsultants at actual cost without markups.
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Design Professional Agreement with Advanced Mobility Group/Exhibit B-Schedule of Fees Page 5 Rev. 09-28-18
VI. LABOR COMPLIANCE
The services provided under this Agreement include preconstruction activities related to a public works project. Payment of each invoice is predicated upon CONSULTANT’s and it’s subconsultants’ compliance with Exhibit D, Labor Compliance Addendum.
Based upon the Scope of Services for the project, the following work is anticipated, to become performed during the course of services and would be subject to the provisions of Exhibit D, Labor Compliance Addendum:
Field Surveyor
Laborer (Utility Potholing)
Design Professional Agreement with Advanced Mobility Group/Exhibit C-Insurance Requirements Page 1 Rev. 09-28-18
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Consultant’s indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Consultant shall provide and maintain in full force and effect during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Consultant’s insurance. The minimum coverages, provisions and endorsements are as follows:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Consultant; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Consultant to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at Design Professional Agreement with Advanced Mobility Group/Exhibit C-Insurance Requirements Page 2 Rev. 09-28-18
least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned (if any), non-owned and hired autos.
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Consultant and/or its subconsultants involved in such activities shall provide coverage with a limit of one million dollars ($1,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS’ COMPENSATION
1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Consultant included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Consultant or any subconsultant under any Workers’ Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. PROFESSIONAL LIABILITY
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Consultant. Covered services as designated in the policy must specifically include work performed under this agreement. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim or two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorney’s Office.
E. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
Design Professional Agreement with Advanced Mobility Group/Exhibit C-Insurance Requirements Page 3 Rev. 09-28-18
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Consultant’s work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85, or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Consultant shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Consultant’s insurance.
3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of nonrenewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through E of this Exhibit C, above.
F. ADDITIONAL INSURANCE RELATED PROVISIONS
Consultant and City agree as follows:
1. Consultant agrees to ensure that subconsultants, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Consultant, provide the same minimum insurance coverage required of Consultant, except as with respect to Design Professional Agreement with Advanced Mobility Group/Exhibit C-Insurance Requirements Page 4 Rev. 09-28-18
limits. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Consultant agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subconsultants and others engaged in the project will be submitted to City for review.
2. Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Consultant for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Consultant in the event of material noncompliance with the insurance requirements set forth in this Agreement.
G. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Consultant, and each and every subconsultant (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Consultant shall file with the City all certificates and endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.
H. EVIDENCE OF COMPLIANCE
Consultant or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement.
Upon City’s request, Consultant shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara Public Works Department
P.O. Box 100085 – S2 or 1 Ebix Way
Duluth, GA 30096 John’s Creek, GA 30097
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Design Professional Agreement with Advanced Mobility Group/Exhibit C-Insurance Requirements Page 5 Rev. 09-28-18
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
I. QUALIFYING INSURERS
All of the insurance companies providing insurance for Consultant shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
EXHIBIT C-06 Professional Service Contract
Design Professional Agreement with Advanced Mobility Group/Exhibit D-Labor Compliance Page 1 Rev. 09-28-18
EXHIBIT D
LABOR COMPLIANCE ADDENDUM
This Agreement is subject to the requirements of California Labor Code section 1720 et seq. requiring the payment of prevailing wages, the training of apprentices, and compliance with other applicable requirements.
A. Prevailing Wage Requirements
1. Contractor shall be obligated to pay not less than the General Prevailing Wage Rate, which can be found at www.dir.ca.gov and are on file with the City Clerk’s office, which shall be available to any interested party upon request. Contractor is also required to have a copy of the applicable wage determination posted and/or available at each job site.
2. Specifically, contractors are reminded of the need for compliance with Labor Code Section 1774-1775 (the payment of prevailing wages and documentation of such), Section 1776 (the keeping and submission of accurate certified payrolls) and 1777.5 in the employment of apprentices on public works projects. Further, overtime must be paid for work in excess of 8 hours per day or 40 hours per week pursuant to Labor Code Section 1811-1813.
3. Special prevailing wage rates generally apply to work performed on weekends, holidays and for certain shift work. Depending on the location of the project and the amount of travel incurred by workers on the project, certain travel and subsistence payments may also be required.
Contractors and subcontractors are on notice that information about such special rates, holidays, premium pay, shift work and travel and subsistence requirements can be found at www.dir.ca.gov .
4. Only bona fide apprentices actively enrolled in a California Division of Apprenticeship Standards approved program may be employed on the project as an apprentice and receive the applicable apprenticeship prevailing wage rates. Apprentices who are not properly supervised and employed in the appropriate ratio shall be paid the full journeyman wages for the classification of work performed.
5. As a condition to receiving progress payments, final payment and payment of retention on any and all projects on which the payment of prevailing wages is required, Contractor agrees to present to City, along with its request for payment, all applicable and necessary certified payrolls (for itself and all applicable subcontractors) for the time period covering such payment request. The term “certified payroll” shall include all required documentation to comply with the mandates set forth in Labor Code Section 1720 et seq, as well as any additional documentation requested by the City or its designee including, but not limited to: certified Design Professional Agreement with Advanced Mobility Group/Exhibit D-Labor Compliance Page 2 Rev. 09-28-18
payroll, fringe benefit statements and backup documentation such as monthly benefit statements, employee timecards, copies of wage statements and cancelled checks, proof of training contributions (CAC2 if applicable), and apprenticeship forms such as DAS-140 and DAS-142.
6. In addition to submitting the certified payrolls and related documentation to City, Contractor and all subcontractors shall be required to submit certified payroll and related documents electronically to the California Department of Industrial Relations. Failure to submit payrolls to the DIR when mandated by the project parameters shall also result in the withholding of progress, retention and/or final payment.
7. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
8. No contractor or subcontractor may be awarded a contract for public work on a public works project, unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Contractors MUST be a registered “public works contractor” with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for maintenance work or less than $25,000 for construction alternation, demolition or repair work, registration is not required.
9. All contractors/subcontractors and related construction services subject to prevailing wage, including but not limited to: trucking, surveying and inspection work must be registered with the Department of Industrial Relations as a “public works contractor”. Those you fail to register and maintain their status as a public works contractor shall not be permitted to perform work on the project.
10. Should any contractor or subcontractors not be a registered public works contractor and perform work on the project, Contractor agrees to fully indemnify the City for any fines assessed by the California Department of Industrial Relations against the City for such violation, including all staff costs and attorney’s fee relating to such fine.
11. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
B. Audit Rights
All records or documents required to be kept pursuant to this Agreement to verify compliance with this Addendum shall be made available for audit at no cost to City, at any time during regular business hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such records or documents shall be provided to City for Design Professional Agreement with Advanced Mobility Group/Exhibit D-Labor Compliance Page 3 Rev. 09-28-18
audit at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records or documents shall be made available at Contractor’s address indicated for receipt of notices in this Agreement.
C. Enforcement
1. City shall withhold any portion of a payment; including the entire payment amount, until certified payroll forms and related documentation are properly submitted, reviewed and found to be in full compliance. In the event that certified payroll forms do not comply with the requirements of Labor Code Section 1720 et seq., City may continue to hold sufficient funds to cover estimated wages and penalties under the Agreement.
2. Based on State funding sources, this project may be subject to special labor compliance requirements of Proposition 84.
3. The City is not obligated to make any payment due to Contractor until Contractor has performed all of its obligations under these provisions. This provision means that City can withhold all or part of a payment to Contractor until all required documentation is submitted. Any payment by the City despite Contractor’s failure to fully perform its obligations under these provisions shall not be deemed to be a waiver of any other term or condition contained in this Agreement or a waiver of the right to withhold payment for any subsequent breach of this Addendum.
City or the California Department of Industrial Relations may impose penalties upon contractors and subcontractors for failure to comply with prevailing wage requirements.
These penalties are up to $200 per day per worker for each wage violation identified; $100 per day per worker for failure to provide the required paperwork and documentation requested within a 10-day window; and $25 per day per worker for any overtime violation.
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-163 Agenda Date: 8/16/2022
REPORT TO COUNCIL
SUBJECT
Action on Software Services Agreement with Power Market Consulting Inc. for OASISLive Subscription Used for California Independent System Operator (CAISO) Congestion Revenue Rights (CRR) Market Participation with Options to Renew for up to Five Additional Years
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
As a participant in the CAISO CRR Market, utilizing the CAISO Open Access Same Time Information System ("OASIS"), the City of Santa Clara’s Electric Utility, Silicon Valley Power (SVP), requires specialized software for:
· Developing market participating strategies using historical and forecasted market data, · Managing large amount of market transactions data for record keeping and analytical purposes, and
· Creating file templates for uploading into the CAISO user interface as SVP participates in monthly and annual CRR markets.
Since 2009, SVP has used the OASISLive analytical and data management support system (Quantrix Modeler) provided by Power Market Consulting, Inc. (PMCI) for the City’s participation in the CAISO CRR markets. The OASISLive system:
· Is tailored to meet CAISO’s CRR market rules and the City’s established business practices; · Stores large amounts of public market data and proprietary information related to resource schedules, transmission contracts, and valuation analytics; · Stores historical data over a long period of time;
· Includes capability for ad hoc CRR and energy market analysis so that users may run queries, perform various calculations using the pre-built matrices, and develop their own analytics using the available data; and
· Is available to staff and consultants from off-site locations
DISCUSSION
The OASISLive solution was originally developed to support the City’s CRR market participation needs in 2009 and continues to evolve as the CAISO’s CRR market rules change. There is a significant amount of City proprietary data and business logic incorporated into the OASISLive system. Therefore, staff does not anticipate changes to this service with the exception of (1) new cloud-based services (Quantrix Enterprise), (2) providing a new short term pricing forecast module in City of Santa Clara Page 1 of 3 Printed on 8/11/2022
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22-163 Agenda Date: 8/16/2022
2022/2023 available both in the existing Quantrix Modeler database and in Quantrix Enterprise and (3) enhanced market intelligence module to enable better tracking of CRR offsets. On this basis, a Sole Source procurement pursuant to Santa Clara purchasing code 2.105.160 was approved by the Purchasing Manager.
In August 2013, the City and PMCI executed a Software Services Agreement. Since then, Software Services Agreement Renewal Notices (Renewal Notice) have been executed annually to extend the term and outline annual subscription fees including rates for other services such as training and consulting. Consulting services include database updates and maintenance, assisting staff with creating new matrices, and transitioning to Software as a Service (Quantrix Enterprise).
Due to several changes in the structure of the service - especially the addition of Software as a Service - staff has negotiated a new Agreement with PMCI which would be effective August 20, 2022.
Staff recommends authorizing the City Manager to execute the Software Services Agreement for the period of August 20, 2022, through August 19, 2026 (Initial Term). In addition, staff recommends authorizing the City Manager to exercise options to extend the Agreement for up to five additional years for a total of nine years. Extensions may be one-year or more years that staff will negotiate at the time that the option is to be exercised.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378 (b)(2) in that the proposed actions are agreements for the purchase of products and services that are continuing maintenance and administrative activities.
FISCAL IMPACT
The maximum compensation for the Initial Term is $1,000,000. PMCI will maintain fixed pricing for that four-year period. Any changes in costs will be associated with changes in the number licenses or subscriptions or use of consulting services.
The total cost if all option years are exercised is estimated not to exceed $3,000,000. Staff’s recommendation includes requests for funding for additional licenses, subscriptions, or additional services resulting from items that are unknown at this time such as market changes, regulatory changes, industry changes, or the known growth in capacity at SVP.
Sufficient funds are available in the FY 2022/23 Operating Budget, in the Electric Utility Operating Fund. Funding for future years will be included in the recommended budget for the corresponding year.
COORDINATION
This report has been coordinated with the Finance Department and City Attorney’s Office.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City City of Santa Clara Page 2 of 3 Printed on 8/11/2022
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22-163 Agenda Date: 8/16/2022
Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]>.
RECOMMENDATION
1. Authorize the City Manager to Execute a Software Services Agreement (Agreement) with Power Market Consulting Inc. for OASISLive subscription used for CRR and power market participation in an amount not to exceed $1,000,000 for the four-year initial period;
2. Authorize the City Manager to execute amendments to extend the term of the Agreement for up to five additional years with a total maximum compensation not to exceed $3,000,000; and
3. Authorize the City Manager to amend the Agreement to (a) add or delete services, licenses, subscriptions, and equipment; and (b) allow for future rate adjustments, subject to appropriation of funds.
Reviewed by: Manuel Pineda, Chief Electric Utility Officer Approved by: Rajeev Batra, City Manager
ATTACHMENTS
1. Software Services Agreement
City of Santa Clara Page 3 of 3 Printed on 8/11/2022
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Agreement with Power Market Consulting, Inc. Page 1 of 17 Power Market Consulting, Inc.
SOFTWARE SERVICES AGREEMENT
This Software Services Agreement (the “Agreement”) is made and entered into on this the __ day of _______, 2022 (the “Effective Date”) between Power Market Consulting, Inc., a California corporation having its principal place of business at 300 Spectrum Center Drive, Suite 400, Irvine, CA 92618 (“Licensor”) and City of Santa Clara dba Silicon Valley Power, a chartered California municipal corporation, having its principal place of business at 1500 Warburton Avenue, Santa Clara, CA 95050 (“Licensee” or “City”). Either party may be referred to individually as the “Party” or collectively as “the Parties.” WHEREAS:
Licensor offers a business intelligence service called OASISLiveTM, which is designed to improve data management and decision-making capabilities of entities that buy and sell wholesale power in California; The OASISLive service offering contains two components: (1) a model file to be installed on an individual workstation and (2) a hosted service, which enables Licensee to have access to the OASISLive Database defined below using Quantrix Modeler and/or Quantrix Enterprise applications; Licensee seeks to obtain a nonexclusive license for the use of the model file and a subscription-based license to access the OASISLive Database; and
The Parties have agreed to the following terms and conditions:
I. Definitions.
The terms used in this Agreement have the following meanings:
a. “Annual Contract Term” shall be defined as the period of August 20 of a year in the Term to August 19 of the following year of the Term.
b. "Annual Subscription Fees” shall be defined as the fee for the Annual Site License for the OASISLive Database, plus the fees for the Annual OASISLive Subscription fee (based on the # of users). Annual Subscription Fees are detailed in Exhibit A (including its components Annual Site License for the OASISLive Database and Annual OASISLive Subscription Fees), attached and incorporated by reference. c. “Annual Third-Party Software License Fee” shall be those fees set forth in Exhibit A associated with the use of Third-Party Licensed Product. d. “Authorized Users” shall be defined as Licensee and its employees, agents, and any consultants, who are pre-approved by Licensor at itssole discretion to be Authorized Users. e. “Business Day” shall be defined as Monday through Friday, excluding holidays recognized by Licensor, during the hours of 8 a.m. to 5 p.m. PST or PDT, as applicable. Licensor recognizes the holidays which are recognized and observed by the Western Electric Coordination Council (“WECC”).
f. “Confidential Information” shall be defined as all of the proprietary, non-public information of Licensor disclosed pursuant to or in furtherance of this Agreement, including but not limited to all Licensor Technical Information as defined herein and all information related to Licensor’s business practices. All Confidential Information shall be clearly identified or marked “Confidential.”
g. “Copyright” shall be defined as any rights owned by Licensor under U.S. Copyright Law in the Licensed Product and the OASISLive Database.
h. “Documentation” shall be defined as user guides, manuals, and any other materials Agreement with Power Market Consulting, Inc. Page 2 of 17 distributed by Licensor to Licensee, which relate to the OASISLive service offering. i. “Licensed Products” shall be defined as a collective reference to both the PMCI Licensed Product and the Third-Party Licensed Product.
j. “Licensee Technical Information” shall be defined as any content, analysis, or other proprietary or non-public information, know-how, or trade secrets, which Licensee adds to the PMCI Licensed Product.
k. “Licensor Technical Information” shall be defined as all of the proprietary or non-public information, know-how, trade secrets, calculations, and algorithms, which are embodied in the PMCI Licensed Product and the OASISLive Database.
l. “OASISLive Database” shall be defined as the database hosted by Licensor on an off-site server, which receives, synchronizes, derives, organizes, and provides data on wholesale electric power transactions and related data from various sources including but not limited to the California Independent System Operator (“CAISO”) Open Access Same Time Information System (“OASIS”). OASISLive users may run queries, perform various calculations using the pre-built matrices, and develop their own analytics using the available data.
m. "PMCI Licensed Product” shall be defined as the Licensor’s OASISLive Database, and its constituent modules, the model file created from OASISLive Database, along with any Licensor Technical Information as defined herein, which is created as of the Effective Date or during the Term of this Agreement.
n. “Services” shall be defined as the subscription-based license, hosting, and maintenance of the OASISLive Database.
o. “Subscription Start Date” shall be defined as the beginning date for each Annual Contract Term.
p. “Term” shall mean the Initial Term, plus any Renewal Period(s) as defined in Section VII of this Agreement.
q. "Termination for Cause” shall be defined as the termination of this Agreement during the Term by one Party where the other Party is in material breach of this Agreement, which breach is incapable of being cured, or if capable of being cured, has not been cured after 30 days’ written notice.
r. "Termination for Convenience” shall be defined as the termination of this Agreement during the Term by one Party in the absence of a material breach of this Agreement by the other.
s. “Third-Party Licensed Product” shall be defined as third-party product offerings that are subject to license or sublicense other than PMCI Licensed Product. This includes Quantrix Modeler and Quantrix Enterprise applications, LCG Consulting’s LMP forecast data, and other third-party products that may become available during the term of the Agreement.
II. Subscription to OASISLive Database.
a. Ownership of the OASISLive Database. Licensor owns all right, title, and interest in the copyrightable elements of the OASISLive Database, including but not limited to the unique arrangement and compilation of the data, as well as to the Licensor Technical Information and the Documentation. The code in the database software is distributed and used by Licensor pursuant to the Mozilla Public License, Version 1.1. b. Subscription by Modules. OASISLive is organized into independent modules. Licensee must subscribe to the Base Module, and then may elect to subscribe to any or all of the other modules at its option at any time. Licensor’s current module offerings as of the Effective Date are listed in Exhibit A, attached hereto and incorporated by reference. i. In the event that Licensee elects to subscribe to an additional module or increase Agreement with Power Market Consulting, Inc. Page 3 of 17 the number of subscriptions or licenses during an Annual Contract Term, the license fee for that license or subscription shall be prorated for the remainder of that Annual Contract Term based on 365 days.
ii. The City may only reduce licenses or subscriptions by providing notice before the beginning of each Annual Contract Term. Reduction of licenses or subscriptions shall not be prorated.
c. End User License.
i. License Grant. For each subscription purchased, Licensor grants to Licensee a non-exclusive license solely for its internal business purposes for the Term and any Renewal Periods (i) to use and display the modules selected of the OASISLive Database by an Authorized User on a single shared workstation using Quantrix Modeler; (ii) to use and display the modules selected of the OASISLive Database at unlimited workstations by Authorized Users using Quantrix Enterprise (iii) to share data or analysis derived from the OASISLive Database with Authorized Users; and (iv) to permit Authorized Users to use the Documentation. Licensee’s rights to the OASISLive Database shall be limited to those expressly granted in this Agreement. Any use which exceeds the scope of the license grant shall constitute a breach of this Agreement.
ii. Restrictions. Licensee shall not provide access to the OASISLive Database to any third-party who is not an Authorized User. Licensee shall not attempt to access or actually access the OASISLive Database through any other model file or software other than the Third-Party Licensed Product and shall not copy or distribute any Documentation to any third-party, who is not an Authorized User. d. Third-Party Data. Licensee may be required to obtain a separate license from a thirdparty to access third-party data. e. Prohibited Uses of the Hosted Service. OASISLive may be used only for lawful purposes and shall only be used by Authorized Users. Licensor specifically prohibits any other use of the hosted service, including but not limited to the following: (a) taking any action that disrupts, tampers with, interferes or imposes an unreasonable burden on OASISLive or the server on which OASISLive is hosted, including but not limited to the bulk download of data; (b) obtaining data from OASISLive in order to resell it; (c) impersonating an Authorized User in order to obtain unauthorized access to OASISLive; (d) using a model file or software other than the Licensed Products to access OASISLive; (e) allowing access to someone other than an Authorized User to OASISLive; (f) using or attempting to use any engine, software tool, agent, or other device or mechanism (including without limitation spiders, robots, or other intelligent agents) to navigate, search, access, monitor, or copy OASISLive; (g) attempting to upload to OASISLive any files, computer code, viruses, or programs designed to interrupt, destroy, or limit functionality of OASISLive or of any computer software, hardware, or communications equipment; (h) deciphering, decompiling, disassembling, or reverse engineering any of the software comprising or in any way making up part of OASISLive; (i) aggregating, copying, or duplicating in any manner any of the copyrightable elements of OASISLive; (j) using any means of automatically searching or mining data from OASISLive or in any way attempting to interfere with the proper functioning of OASISLive; (k) collecting or storing personal information about any other user of OASISLive; (l) intentionally or unintentionally violating any applicable local, state, national, or international law; (m) providing material support or resources to any terrorist organization; or (n) “framing,” “mirroring,” or otherwise incorporating any part of OASISLive into any other website without prior written permission. Licensor reserves the right to suspend or terminate Authorized Users or even Licensees who do not appropriately use OASISLive. In the event Licensee becomes aware of an inappropriate use of OASISLive (i.e., use in contravention of this Section III(e), Licensee is obligated to promptly notify Licensor of the problem.
Agreement with Power Market Consulting, Inc. Page 4 of 17 f. Maintenance. Licensor reserves the right to take OASISLive off-line from time to time for maintenance purposes. Currently, Licensor performs daily maintenance for a brief period each morning and performs more significant maintenance tasks on a monthly and/or quarterly basis. Licensor agrees to notify Licensee reasonably in advance of any scheduled monthly or quarterly maintenance.
g. Incident Reporting and Obligations. Licensee shall promptly report all errors, bugs, and other incidents to Licensor and provide as much information about the issue as possible.
Incident reports should be submitted to Licensor at [email protected]. h. Service Level Response Goals. Licensee’s subscription includes OASISLive technical support. Licensor will make commercially reasonable efforts to promptly resolve all OASISLive technical support issues. Technical support issues will be addressed during Licensor’s regular Business Days.
III. Rights in Third-Party Licensed Product.
a. Grant of License. For each subscription purchased, Licensor grants to Licensee a nonexclusive license solely for its internal business purposes (i) to use and install the ThirdParty Licensed Product on a single workstation; (ii) to allow access to Quantrix Enterprise interface to OASISLive database for Authorized Users; (iii) to allow a single connection, including remote desktop connection capability, to the OASISLive Database; (iv) to make a single back-up copy of the Third-Party Licensed Product for archival and contingency purposes only; and (v) to add Licensee-specific content, analysis, and other Licensee Technical Information to the Third-Party Licensed Product. Licensee’s rights in the ThirdParty Licensed Product shall be limited to those expressly granted by such third-party licensor. Any use which exceeds the scope of the license grant shall constitute a breach of this Agreement.
b. Restrictions. Licensee shall not distribute, share, rent, resell, lease, sublicense or otherwise disclose or transfer the Third-Party Licensed Product to any third-party. The Third-Party Licensed Product allows Authorized Users to access content that contains the trade secrets of Licensor and in order to protect such trade secrets and other interest that Licensor may have in the Third-Party Licensed Product, Licensee agrees not to reverse engineer, decompile, translate, or disassemble the Third-Party Licensed Product in whole or in part, nor to permit any third-party to do so.
c. Ownership. Licensee acknowledges that no title to the intellectual property in the ThirdParty Licensed Product is transferred to Licensee under this Agreement. Licensee further acknowledges that title and full ownership rights to the content of the Third-Party Licensed Product and all of Licensor’s intellectual property rights therein will remain the exclusive property of Licensor. Licensee agrees not to remove any trademark, copyright, or other proprietary notes on or in any portion of the content of the Third-Party Licensed Product as delivered, and to reproduce all such notices on and in all authorized copies.
IV. Additional Services.
Licensor is available to provide consulting services to Licensee for an additional fee upon request for additional services described in Exhibit B (“Additional Services”). Exhibit B attached hereto and incorporated by reference sets forth the terms, descriptions, and rates for any such Additional Services.
V. Customizations.
Licensor is available to make customizations to the Licensed Products for an additional fee upon request. Licensee will own all right, title, and interest in any intellectual property arising from such customizations made to the Licensed Products. Where such customizations are performed by Licensor consultants, the terms and rates in Exhibit B shall apply. If such customization includes services not included in the Consulting Services Rates, such costs shall be authorized using the Agreement with Power Market Consulting, Inc. Page 5 of 17 process in Exhibit B.
VI. Billing and Payment.
a. Maximum Compensation. Unless an Amendment to this Agreement is executed between the Parties, the maximum amount of compensation to be paid to Licensor during the Initial Term of this Agreement shall not exceed One Million Dollars ($1,000,000). This maximum compensation includes all items associated with this Agreement including:
Annual Subscription Fees, Annual Third-Party Software License Fee, Additional Services, Reimbursable Expenses, as well as Taxes, Fees, or other costs associated with this Agreement. Compensation shall be calculated in accordance with Exhibits A and B. b. Annual Subscription Fees and Annual Third-Party Software License Fee. Annual Subscription Fees and Annual Third-Party Software License Fee are those annual fees specified in Exhibit A.
i. Annually, at least sixty (60) days before the next Annual Contract Term begins, Licensor shall submit a quote or initial annual task order to Licensee including Annual Subscription Fees and Annual Third-Party Software License Fee consistent with this Agreement and also reflecting the estimated number of licenses and subscriptions requested by Licensee for the next Annual Contract Term. Such quote may include any third-party licensing fees subject to the provisions of Exhibit B. For avoidance of doubt, the rates and fees in Exhibit A and B shall not be adjusted during the Initial Term.
ii. Licensee shall either accept that quote/task order or request modifications within thirty (30) days after receipt.
iii. Upon receipt of approval of a quote/task order including Annual Subscription Fees, Annual Third-Party Software License Fee and the specified number of licenses and subscriptions requested by the Licensee; Licensor shall invoice and Licensee shall make payment according to the terms of this Section VI. iv. In the event of early Termination for Convenience by Licensee, Annual Subscription Fees and Annual Third-Party Software License Fee are nonrefundable. v. Licensor agrees that the Annual Subscription Fees and Annual Third-Party Software License Fee are fixed for the Initial Term of this Agreement. Licensor reserves the right to change the Annual Subscription Fees and Annual Third-Party Software License Fee for each Renewal Period upon at least sixty (60) days prior written notice prior to the expiration of the Initial Term or any Renewal Period. vi. Notwithstanding the foregoing and during any Renewal Period, Licensor intends to set service fee prices for the next calendar year prior to end of the preceding calendar year, and upon request, may make pricing information available to Licensee when the new pricing is set, even though such prices would not become effective for Licensee until the next Renewal Period.
c. Additional Services.
i. When Additional Services are requested by Licensee according to the process outlined in Section II of Exhibit B, Licensor will invoice Licensee for such approved Additional Services within 30 days of the end of the month during which services were provided.
ii. All invoices for Additional Services shall include sufficient detail for the Licensee to verity that work was performed according to the rates in Exhibit B (“Consulting Services Rates”).
iii. Licensor agrees that the Consulting Service Rates are fixed for the Initial Term of this Agreement. Licensor reserves the right to change the Consulting Service Agreement with Power Market Consulting, Inc. Page 6 of 17 Rates for each Renewal Period upon at least sixty (60) days prior written notice prior to the expiration of the Initial Term or any Renewal Period. d. Invoicing and Payments:
i. Licensor will invoice City on an annual or monthly basis on an invoice and in a format approved by City and subject to verification and approval by City. ii. Where applicable, invoices shall include itemization of any authorized expenses incurred with a detail listing the cost and source of such expenses and when they were incurred in a format that will permit City to verify rates are the same as those authorized in the Agreement.
iii. Invoices shall include the amount paid to date and remaining Agreement amount.
iv. If Licensee disputes an expense in an invoice, Licensee may deduct the disputed expense from the payment of that invoice, provided that City submits to Licensor a written explanation of why the expense is being disputed. v. If there are no discrepancies or deficiencies in the submitted invoice and, City shall process the invoice for payment.
vi. Licensor shall maintain documentation of such time and costs for City inspection for a period of three (3) years from the date of termination of this Agreement.
VII. Term and Termination.
a. Initial Term. This Agreement shall commence as of the Effective Date and expire four (4) years following the Effective Date, unless earlier terminated (the “Initial Term”). b. Renewal Period. This Agreement may be renewed for up to five (5) years and such extensions may be in one-year periods or multiple years as may be mutually agreed between the parties (“Renewal Period”). The parties shall execute an Amendment to this Agreement to exercise renewal period(s).
c. Termination.
i. This Agreement may be Terminated for Cause by either Party upon thirty (30) days’ prior written notice, where the other Party is in material breach of this Agreement, and such breach is incapable of being cured, or such breach is capable of being cured, but has not been cured within such notice period. ii. This Agreement may be Terminated for Convenience by either Party upon thirty (30) days’ prior written notice.
d. Effect of Expiration or Termination. Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Upon expiration or termination, Licensee shall be responsible for paying Licensor all outstanding fees and expenses incurred during the Term of this Agreement.
VIII. Confidential Information.
Except as expressly provided herein, for the Term of this Agreement and for a period of five (5) years thereafter, Licensor and Licensee shall keep completely confidential and shall not publish or otherwise disclose for any reason the Confidential Information furnished pursuant to this Agreement. The foregoing notwithstanding, the obligations contained herein restricting the disclosure and use of Confidential Information shall continue to apply to any Confidential Information for so long as such Confidential Information remains protectable or legally enforceable under any other agreement or law, including applicable copyright, trade secret and patent laws. Each Party shall disclose Confidential Information only to those employees and consultants with a need Agreement with Power Market Consulting, Inc. Page 7 of 17 to know, and then only to the extent that such disclosure is necessary to accomplishing the purposes of this Agreement.
IX. Warranties.
a. Limited Warranty. Licensor warrants that all Services provided under this Agreement will be performed in a professional, workmanlike manner in accordance with generally accepted industry standards. In addition, Licensor warrants that the PMCI Licensed Product will be free from physical defects.
b. Licensee’s Remedies. Upon receipt by Licensor of Licensee’s written notice of any breach of the Limited Warranty set forth above, Licensor’s entire liability and Licensee’s sole and exclusive remedy shall be to use reasonable commercial measures at Licensor’s expense to (i) in the case of a physical defect in the PMCI Licensed Products correct the physical defect, replace the PMCI Licensed Product, or provide a work-around, and (ii) in the case of the unsatisfactory performance or delivery of the Services, re-perform or correct the performance or delivery of the Services so that it meets the standards set forth in the Limited Warranty defined above.
c. Disclaimer of Other Warranties. THE LICENSED PRODUCTS AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. USE OF THE LICENSED PRODUCTS AND
THE SERVICES, AND THE RELIANCE ON ANY DATA CONTAINED THEREIN, ARE AT LICENSEE’S OWN RISK. LICENSOR CAN MAKE NO WARRANTY THAT
USE OF THE LICENSED PRODUCTS OR ACCESS TO THE SERVICES WILL BE
CONTINUOUS, UNINTERRUPTED, BUG-FREE, ERROR-FREE, VIRUS-FREE,
FREE OF DEFECTS, FREE OF TECHNICAL PROBLEMS, THAT THEY WILL MEET ALL OF LICENSEE’S NEEDS, NOR THAT THE DATA OR CALCULATIONS WILL BE UP-TO-DATE, ACCURATE, COMPLETE, OR OF ANY PARTICULAR QUALITY.
LICENSOR, HOWEVER, WILL USE REASONABLE CARE TO PROVIDE
UNINTERRUPTED, BUG-FREE, ERROR-FREE, ACCURATE AND COMPLETE SERVICES. WITH THE EXCEPTION OF THE LIMITED WARRANTY STATED IN SECTION IX (a) ABOVE. LICENSOR EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH
RESPECT TO THE LICENSED PRODUCTS, THE SERVICES, AND THE DATA,
WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE OR
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. LICENSOR
DOES NOT WARRANT THAT ALL ERRORS, BUGS, OR DEFECTS CAN OR WILL
BE CORRECTED OR THAT THE LICENSED PRODUCTS OR SERVICES WILL OPERATE BUG-FREE, ERROR-FREE, CONTINUOUSLY, OR UNINTERRUPTED.
X. Consequential Damages; Limitation of Liability.
a. No Liability for Consequential Damages. IN NO EVENT SHALL LICENSOR BE
LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY,
SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING
WITHOUT LIMITATION, LOSS OF DATA OR PROFITS, LOSS OF BUSINESS
OPPORTUNITIES, COSTS OF PROCUREMENT OR REPLACEMENT GOODS AND
SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE,
PERFORMANCE, OR INTERRUPTION OF THE LICENSED PRODUCTS, THE
SERVICES, OR ANY DATA ACCESSED THROUGH THE LICENSED PRODUCTS
AND THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM
BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE)
STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE Agreement with Power Market Consulting, Inc. Page 8 of 17
PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY
EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CONSEQUENTIAL DAMAGES; THIS SECTION APPLIES ONLY TO THE EXTENT AVAILABLE BY APPLICABLE LAW. b. Limitation of Liability. Licensor’s total cumulative liability to Licensee from all causes of action and under all theories of liability will be limited to and will not exceed the total amount of fees incurred by Licensee for the twelve (12) month period immediately preceding any claim giving rise to the liability. This limitation shall apply notwithstanding the failure of the essential purpose of any remedy hereunder. Notwithstanding the foregoing, this limitation shall not apply to death, or bodily injury.
XI. Hold Harmless/Indemnification.
a. To the extent permitted by law, Licensor agrees to protect, defend, hold harmless and indemnify Licensee, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and reasonable attorney’s fees (collectively, “Claim(s)”) in providing a defense to any Claim arising therefrom, for which Licensee shall become liable arising from (i) Licensor’s negligent, reckless or wrongful acts, errors, or omissions with respect to or in any way connected with the Services performed by Licensor pursuant to this Agreement, or (ii) a third-party Claim alleging that Licensee’s use of the PMCI Licensed Product constitutes an infringement of a United States patent, copyright, or trade secret. In the event Licensee seeks indemnification, Licensee shall (i) notify Licensor promptly in writing of the Claim; (ii) provide reasonable assistance in connection with the defense and/or settlement thereof, at the expense of Licensor; and (iii) permit Licensor to control the defense and/or settlement of the Claim. Licensee shall have the right to participate in the defense and/or settlement of any Claim, suit, or proceeding, with counsel of its own choosing and at its own expense.
b. To the extent permitted by law, Licensee agrees to protect, defend, hold harmless and indemnify Licensor, its directors, officers, employees, independent contractors and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and reasonable attorney’s fees in providing a defense to any claim arising therefrom, for which Licensor shall become liable arising from Licensee’s negligent, reckless or wrongful acts, errors, or omissions with respect to or in any way connected with this Agreement. In the event Licensor seeks indemnification, Licensor shall (i) notify Licensee promptly in writing of the claim; (ii) provide reasonable assistance in connection with the defense and/or settlement thereof, at the expense of Licensee; and (iii) permit Licensee to control the defense and/or settlement of the claim. Licensor shall have the right to participate in the defense and/or settlement of any claim, suit, or proceeding, with counsel of its own choosing and at its own expense.
XII. General.
a. Entire Understanding. This Agreement, along with the exhibits attached hereto, contains the entire understanding of the Parties with respect to the subject matter contained herein, and shall supersede all prior agreements and understandings, whether written or oral. There are no restrictions, promises, covenants, or understandings other than those expressly set forth herein, and no rights or duties on the part of either Party are to be implied or inferred beyond those expressly provided for.
b. Export Control. Licensee may not use or otherwise export or re-export the Licensed Products except as authorized by United States law and the laws of the jurisdiction in which the Licensed Products was/were obtained. In particular, but without limitation, the Licensed Products may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Agreement with Power Market Consulting, Inc. Page 9 of 17 Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Products and the Services, Licensee represents and warrants that Licensee is not located in any such country or on any such list. Licensee also agrees that it will not use the Licensed Products or the Services for any purposes prohibited by United States law.
c. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law principles. d. Severance. If any provision of this Agreement is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. The Parties agree to negotiate and amend in good faith such provision in a manner consistent with the intentions of the Parties as expressed in the Agreement, if any invalid or unenforceable provision affects the consideration of either Party. e. Modifications and Additions. No modifications or additions to the terms and conditions of this Agreement shall be binding unless in writing and signed by both Parties. f. Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that, however, Licensee shall not assign this Agreement or any other duty, obligation, or right arising hereunder without the prior written approval of Licensor. Notwithstanding the foregoing, Licensee may transfer this Agreement to a successor government entity, and Licensor may transfer this Agreement to a successor in the event of a merger or purchase of all of Licensor’s assets or all or substantially all of the assets pertaining to a division or a group of Licensor, but such transfer may only occur if the assignee in each case agrees to be bound by each of the terms of this Agreement.
g. Force Majeure. Except with respect to obligations to pay compensation when due, if either Party is delayed or prevented from fulfilling any of its obligations under this Agreement by reason of any cause beyond its reasonable control, including but not limited to Acts of God, fire, strike, flood, riot, war, pandemic, earthquake, delay of transportation, or inability to obtain necessary materials through normal commercial channels, then that Party shall not be liable under this Agreement for damages as a result of such delay or failure. h. Notices. All legal notices provided in connection with this Agreement will be in writing and will be delivered by (i) certified or registered mail, postage prepaid and return receipt requested, or in the alternative, regular mail or (ii) courier, and will be deemed effective upon receipt by the principal or CEO at the address set forth above, or at such other address that the Parties may designate by written notice to each other. i. Survival. Obligations, which by their nature survive, shall survive any expiration or termination of this Agreement. Without limiting the generality of the foregoing, the following provisions shall survive any expiration or termination of this Agreement:
Articles I through III, VI, VIII, X through XII, and Sections VIId and IXc. j. Insurance. Licensor shall provide insurance in accordance with the requirements of Exhibit C. Any references to Contractor within that exhibit refer to Licensor. k. Waiver. No waiver by either Party of any breach of this Agreement, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either Party to exercise any right, power, or privilege hereunder be deemed a waiver of such right, power, or privilege. l. Irreparable Harm. Licensee acknowledges that any breach of Section VIII to this Agreement may cause irreparable harm to Licensor. Licensee therefore agrees that Licensor shall be entitled to injunctive relief in the event of such breach. m. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. Acceptance of this Agreement may be evidenced by facsimile or electronic Agreement with Power Market Consulting, Inc. Page 10 of 17 transmission.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become operative on the Effective Date first set forth above.
CITY OF SANTA CLARA, CALIFORNIA,
a chartered California municipal corporation
APPROVED AS TO FORM:
City Attorney City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“LICENSEE”
POWER MARKET CONSULTING, INC.
a California corporation
By:
(Signature of Person executing the Agreement on behalf of Licensor) Name:
Title:
Local Address: 300 Spectrum Center Drive, Suite 400
Irvine, CA 92618
Telephone ( 714 ) 635-7650
Fax: ( 714 ) 494-8001
“LICENSOR”
Agreement with Power Market Consulting, Inc. Page 11 of 17 Exhibit A
List of Available Modules and Associated Fees
Effective August 20, 2022
I. OASISLive modules available for subscription:
a. Base Module. This module provides all market clearing prices and derived prices from the CAISO OASIS data, except for the Congestion Revenue Rights (“CRR”) market clearing prices.
b. CRR Module. This module provides CRR market clearing prices and quantities from the CAISO OASIS system.
c. Market Intelligence Module. This module provides all transmission, system demand, energy, and ancillary data from the CAISO OASIS system and CRR Offsets from the CAISO Market and Results Interface (CMRI”).
d. LMP Forecast Module. This module provides third-party CAISO Day-Ahead Market (DAM) locational marginal price (“LMP”) forecasts at monthly and seasonal time-of-use basis to correspond with CRR products.
e. Short-Term DAM LMP Forecast Module. This module provides the hourly CAISO DAM LMP forecasts for all market resources on daily-basis 1 to 5 trade dates prior to the operating day.
II. Annual Subscription Fees (Annual Site License Fee for OASISLive Database and OASISLive Subscription Fees):
a. OASISLive Database Site Licenses shall be provided for each module at the annual rates in Table A-1.
Table A – 1 Site License Fees
Modules Annual Site License Fee for
OASISLive Database
Base $ 31,988
CRR $ 34,709
LMP Forecast $ 39,678
Market Intelligence $ 25,593
All 4 modules except Short-Term LMP Forecast $ 131,968
20% Discount ($ 26,394)
All 4 modules with 20% Discount $ 105,574
Short-Term LMP Forecast $ 26,481
b. OASISLive Database Subscriptions shall be provided at the rates in Table A-2 and are invoiced annually per user.
Agreement with Power Market Consulting, Inc. Page 12 of 17 Table A – 2 – Subscription Fees
Modules Annual OASISLive
Subscription Fee (Per User)
Base $ 1,293
CRR $ 1,616
LMP Forecast $ 1,616
Market Intelligence $ 1,616
Short-Term DAM LMP Forecast $ 2,207
III. Annual Third-Party Software License Fee:
Annual Quantrix software licenses shall be provided at the rates in Table A – 3 and are invoiced annually per installation for Quantrix Modeler and per Quantrix Enterprise user for Quantrix Enterprise.
Table A – 3 – Annual Third-Party Software License Fee
Software Name Annual Fee
Quantrix Modeler $2,640 per Installation
Quantrix Enterprise $3,233 per User
Agreement with Power Market Consulting, Inc. Page 13 of 17 Exhibit B
Additional Services
I. Additional Services
Upon request of the Licensee and subject to the work authorization process in this Exhibit B, Licensor may be requested to perform additional services such as, but not limited to consulting, training, and customization.
II. Project Quotes and Authorization of Work
a. When Additional Services are required by Licensee other than work to support Licensee’s day-to-day CRR business processes, Licensee shall request a quote or task order from Licensor for such services.
b. Licensor shall submit a quote or task order for the required services in advance of commencing work. Licensor’s quote or task order shall include the following details:
i. Specific service(s) to be performed including any assumptions used to determine quote or task order;
ii. Project schedule (if requested by Licensee);
iii. Estimated maximum cost for the requested services including consulting fees, travel, and any other anticipated expenses. Costs not included in the quote or task order are assumed to be included in the hourly rate. iv. For Training Services, a training plan or agenda
c. Where the terms of any quote or task order are in conflict with this Agreement, the terms of this Agreement shall prevail.
d. All submitted pricing shall be in accordance with the rates authorized in this Agreement. e. If accepted by Licensee, Licensee shall authorize work in writing (e-mail acceptable).
Licensor shall not commence work unless Licensor has received such authorization. f. Licensee’s written authorization may only be provided by a Division Manager, Senior Division Manager, Assistant Director of the Electric Utility, Electric Utility Chief Operating Officer, or Chief Electric Utility Officer.
g. Changes to quotes or task orders for Additional Services i. Licensor shall notify Licensee immediately when a situation occurs that may result in a change to the quoted project cost.
ii. Licensor shall submit an updated quote or task order and provide reason for the change specific to each work authorization.
iii. Licensor shall not continue work until Licensee approves the change in writing (e-mail acceptable).
h. Licensor shall not initiate any project assignment that (1) will result in total costs exceeding the maximum compensation in Section VI.a. or (2) is anticipated to extend past the Term of this Agreement.
i. Licensee shall not be required to pay a deposit or any other form of pre-payment prior to the Licensor beginning work on Additional Services.
III. Consulting Services Rates
Consulting Services shall be provided at the following rates:
Agreement with Power Market Consulting, Inc. Page 14 of 17 Role Hourly Rate
Modeler $318
Manager $302
Consultant $280
Analyst/Developer $237
IV. REIMBURSABLE EXPENSES
a. No reimbursable expenses shall be paid or incurred by Licensee without Licensee’s prior written approval.
b. Licensor Requested Expenses. Outside services such as, but not limited to third-party licenses not already listed in Exhibit A, subcontractor services, outside reprographic services, materials and equipment, will be invoiced at cost. c. Expenses shall be reimbursable only to the extent that Licensor submits sufficient documentation to Licensee that the expenses were directly incurred in providing the requested services and that such costs are not already included in the fee or hourly rate. d. Travel and Per Diem. Travel and Per Diem will be invoiced at cost. i. Unless approved in writing (e-mail acceptable) in advance, meals, lodging, and related Per Diem shall not exceed the rates outlined by United States General Services Administration (GSA) https://www.gsa.gov/travel-resources ii. Mileage. Personal automobile travel from portal to portal or between locations will be charged at IRS mileage rates per mile in place at the time of travel. iii. Travel Expenses. Airfare, car rental, taxi, parking, tolls, and incidental expenses will be invoiced at cost, with receipts provided for any expenses. Airfare, if required, shall be at economy class.
e. An estimate for any anticipated reimbursable expenses shall be included in Licensor’s response to any request by City for Additional Services. f. Licensor shall provide supporting documentation such as invoices or receipts for all Reimbursable Expenses.
Agreement with Power Market Consulting, Inc. Page 15 of 17 Exhibit C
Insurance Coverage Requirement
Without limiting the Contractor’s indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 each occurrence
$1,000,000 general aggregate
$1,000,000 products/completed operations aggregate
$1,000,000 personal injury
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01, with minimum policy limits of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00
01. Liability coverage shall apply to all owned, non-owned and hired autos.
C. WORKERS’ COMPENSATION
1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with the following limits: at least one million dollars ($1,000,000) policy limit Illness/Injury by disease, and one million dollars ($1,000,000) for each Accident/Bodily Injury.
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers’ Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
Agreement with Power Market Consulting, Inc. Page 16 of 17
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor’s work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85 or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor’s insurance.
3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non-renewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through D of this Exhibit C, above.
E. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
Agreement with Power Market Consulting, Inc. Page 17 of 17
2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third-party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
F. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.
G. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement. Upon City’s request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara
Electric Department
P.O. Box 100085 – S2 or 1 Ebix Way
Duluth, GA 30096 John’s Creek, GA 30097
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
H. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-816 Agenda Date: 8/16/2022
REPORT TO COUNCIL
SUBJECT
Action on an Agreement with TT FASTER LLC, dba FASTER Asset Solutions, for a Fleet Management Information System
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
The Department of Public Works’ Fleet Management Division (Fleet Division) manages the City’s fleet of approximately 800 vehicle and equipment assets with a combined value of more than $50 million. Since 1992, the Fleet Division has been using a Fleet Management Information System (FMIS) from TT FASTER LLC, dba FASTER Asset Solutions (FASTER), to track and manage maintenance, repair, replacement, licensing, warranty, fuel consumption, parts, labor, billing, budget, and other activities associated with maintaining the City’s fleet.
The current on premise, Windows based version of the FMIS that the City is using is being sunset by the vendor, so additional software support and development will no longer be available. The proposed web-based version is hosted by the vendor keeping our environment up to date with current releases and is consistent with the Information Technology Department’s movement toward cloud-based programs.
DISCUSSION
Staff has relied on City Code Section 2.105.290(b)(3) to acquire goods or services directly from vendors on terms obtained through a formal bidding process conducted by another public agency, also referred to as “piggybacking.” Based on past best practices related to the appropriate use of piggyback contracts and interpretation of this section, staff is recommending entering into a new agreement with FASTER pursuant to the Request for Proposals (RFP) process conducted by the County of Riverside, CA, in which FASTER was selected for award in 2019.
The proposed agreement with FASTER will provide the Fleet Division access to the latest version of the FASTER FMIS. The new version will be hosted in the cloud, enabling far greater access to asset information via mobile technology, and have an enhanced dashboard with key performance indicators. The initial term of the proposed agreement is five years ending in August 2027. The maximum compensation during the initial term is $149,194, as summarized in the table below.
Description Amount
Year 1 - Includes software licenses for 800 assets ($55,764); professional services for data migration and training ($31,950); and software support & maintenance ($12,296*)
$100,010
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22-816 Agenda Date: 8/16/2022
Description Amount
Year 1 - Includes software licenses for 800 assets ($55,764); professional services for data migration and training ($31,950); and software support & maintenance ($12,296*)
$100,010
Year 2 - Annual Software Support & Maintenance $12,296
Year 3 - Annual Software Support & Maintenance $12,296
Year 4 - Annual Software Support & Maintenance $12,296
Year 5 - Annual Software Support & Maintenance $12,296
Maximum Compensation (5 years) $149,194
*Any remaining months on the existing support agreement will be deducted from this fee.
Pricing shall remain fixed for the initial five-year term of the agreement. Thereafter, the vendor may request price adjustments, not to exceed 3 percent over the previous year’s rates.
The City is not currently utilizing modules in FASTER such as mapping, locating, run time and other asset management functions but may choose to add those in the future. The additional modules are available for an initial set-up cost of approximately $7,000 to $10,000 and annual support/maintenance costs from $1,000 to $2,000 per module. In order to allow flexibility to add these features, staff is also requesting authorization to execute amendments up to $50,000 to purchase and implement modules during the initial term.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.
FISCAL IMPACT
The compensation paid to FASTER over the initial five-year term of the agreement shall not exceed $149,194. As approved by the City Council on June 21, 2022, funding of $100,000 was carried over from FY 2021/22 to FY 2022/23 in the Fleet Operations Fund. This carryover was for the one-time fee for Year 1 of this agreement. Ongoing software support and maintenance will be incorporated in the annual budget process, subject to appropriation.
COORDINATION
This report has been coordinated with the Finance Department and the City Attorney’s Office.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.
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22-816 Agenda Date: 8/16/2022
RECOMMENDATION
1. Authorize the City Manager to execute an agreement with TT FASTER LLC, doing business as FASTER Asset Solutions, for a vendor-hosted fleet management information system, with an initial term of five years starting on or around September 1, 2022 and ending on or around August 31, 2027, with maximum compensation not-to-exceed $149,194;
2. Authorize the City Manager to execute amendments for any additional system modules not-toexceed $50,000 and subject to the appropriation of funds; and
3. Authorize the City Manager to renew the agreement at the end of the five-year term for ongoing maintenance and support as long as the system is being used by the City and subject to the appropriation of funds.
Reviewed by: Craig Mobeck, Director of Public Works
Approved by: Rajeev Batra, City Manager
ATTACHMENTS
1. Agreement with TT FASTER LLC, dba FASTER Asset Solutions City of Santa Clara Page 3 of 3 Printed on 8/11/2022
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GENERAL AGREEMENT
TT FASTER LLC, dba FASTER Asset Solutions, hereinafter referred to as “FASTER,” and the “City of Santa Clara, California, a chartered California municipal corporation”, hereinafter referred to as "Customer," agree to the following terms and conditions as detailed in the attached schedules (collectively, the “Agreement”). More specifically, Schedule A includes a detailed Statement of Work (“SOW”), associated pricing and payment terms.
1. Project Scope – Commercial-Off-The-Shelf and Custom Deliverables:
a. Definition of a Commercial-Off-The-Shelf (COTS) System:
This Agreement may have custom work product, which is distinct and separate from the COTS software. Custom work, if any, will be listed in Schedule A. There are also several COTS software products that are licensed separately (FASTER Web, MotorPool, Dashboard, Standard Fuel Import, Barcode, etc.). Therefore, if the product is not specifically listed in Schedule A, no license rights are conveyed. As FASTER Web is a COTS system, the underlying software consists of standardized programs (i.e., pre-built). As such, this Agreement takes precedent over any other agreement between FASTER and Customer.
The COTS software undergoes its own development cycle separately and distinctly from the implementation process. This means that no requirements gathering; requirements and design approval, gap analysis, testing and development work is done on FASTER COTS Software in conjunction with this Agreement. However, custom development and testing will be done in conjunction with the custom work noted in Schedule A.
Whatever COTS software, custom work and converted data are listed in Schedule A as work product, will be deployed together to form a “Soft Go-Live” instance. If there is additional work product that is to be delivered separately (after the initial Go-Live) that will be specifically listed in Schedule A. The Soft Go-Live instance is tested in the FASTER data center and then deployed to the Customer’s single environment that serves as the Customer’s test environment during the implementation and will become the production environment upon Go-Live. This permits the Customer to perform whatever tests it deems necessary in the later environment to which it will have access. The Customer having one environment through the life of the implementation that will be promoted to production is a critical aspect of quality control that is a distinctly important part of the FASTER COTS implementation process. Any deviation from this may lead to additional cost. This process also reduces Customer IT expenses.
While custom work product (if any) is built to specific customer-identified specifications, the nature of COTS software requires that FASTER will not provide custom modification, code changes or database structure changes to any COTS software since this could adversely affect other customers. FASTER does enhance the COTS software as part of its normal life cycle based on customer input from its more than 370 customers, market research and on-staff fleet professionals.
b. Integrations & Business Intelligence Work Approvals & Testing:
This work represents integrations and business intelligence for which the Customer has Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 1 of 28 provided specifications. The following process will be followed to ensure that reliable work is delivered as part of the implementation:
If the Customer has opted in the SOW to use an existing document or file (such as an existing report) as a template for the work to be done, in order to avoid the cost and time involved in the creation of written requirements, there will not be a requirement approval process outside of what is documented in the SOW.
Or if the SOW calls for requirements to be documented during the implementation: After the Customer provides the following documentation, FASTER will create an extensive Requirements Document for the Customer to approve. This document will enable the Customer to have certainty about what it requires for a successful customization.
Documents to be provided by Customer:
• In the case of a Custom Report, a mockup in Excel or similar table. • In the case of an Integration, a Data Flow Map which will show the data the Customer wants to import and/or export.
• A written summary of:
o Execution of the integration: How should the integration be executed? For example, would it need to be run manually or scheduled to run automatically. o User Interface: Will a user interface be needed? If so, what are the key elements needed in the user interface?
o Error Handling: How should errors be logged? Are there any specific errors or failures that could occur that would need the integration to notify the Customer about? o Special Considerations: Are there any additional business rules or special considerations that the Customer could not show in the data map that the integration needs to meet? After receipt of the above, FASTER will create a Requirements Document for the Customer’s approval. Once the Customer approves the Requirements, FASTER will begin and complete development and testing. And then the custom work product will be delivered with the COTS components in the form of the Soft Go-Live noted above.
The Customer may choose to do whatever testing it deems necessary on the custom work during the implementation in the Customer’s implementation environment (more below related to environments). Those testing costs will be borne by the Customer and administered by the Customer. FASTER will provide to the Customer any and all of the test cases which FASTER has already performed during its testing free of charge to use at the Customer’s expense.
c. COTS Software Approvals & Testing:
As a result of the nature of a COTS system, the implementation of the COTS software Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 2 of 28 components will not require the Customer or FASTER to do test plan approvals, requirements documentation approvals, gap analysis or gap analysis approvals.
The Customer may choose to do whatever testing it deems necessary on the COTS software components during the implementation in the Customer’s implementation environment (more below related to environments). Those testing costs will be borne by the Customer and administered by the Customer. FASTER will provide to the Customer any of the 50,000+ test cases which FASTER has already performed during its normal COTS release cycle free of charge to use at the Customer’s expense.
d. Data Conversion Testing:
If noted in Schedule A, FASTER will perform data conversion services: If data conversion services are provided, FASTER will perform data validation testing that validates the accuracy of the data FASTER loads into the Customer’s FASTER Web database against the data provided by the Customer and confirms the Customer’s data in the FASTER Web database meets the business rules of FASTER. Once FASTER has completed data validation testing internally, FASTER will provide the Customer a Soft Go-Live copy of the database that contains the data FASTER loaded.
The Customer can then perform whatever due diligence it deems necessary to validate this data in the Customer’s implementation environment. If the Customer chooses it can redundantly perform some or all of the same Data Validation tests cases FASTER performed. FASTER will provide data validation test cases for the Customer to use free of charge. All Customer data testing will be performed by the Customer at the Customer’s expense. Any data defects the Customer finds and reports during its implementation testing that is found to be the result of FASTER’s work will be corrected by FASTER.
2. Change Requests
a. COTS Add-ons: Change Requests to add COTS add-on components can be done any time up to the time of the installation of the COTS components included in the SOW or after the GoLive and there will only be the added costs which relate to adding those components and any added implementation tasks, such as training.
b. Change Requests for Custom Work: The Customer may make a change request(s) for custom work at any time in writing and submit to FASTER’s Implementation Project Manager.
FASTER will provide the Customer with a written estimate of added costs and/or time delay resulting from the change request(s). It is understood by the parties that change requests that occur after the Customer has approved the Requirements Document may lead to higher cost and time delay due to the fact that FASTER may need to re-write the Requirements Document, re-do the approval process, re-work code or re-test. The Customer will review and modify if needed FASTER’s written response to change request(s) and notify FASTER in writing whether it wants to proceed with the change request(s).
3. Taxes
Prices and fees are exclusive of all federal, state, municipal, or other government, excise, sales, use, occupational, or like taxes now in force or enacted in the future and, therefore, prices are subject to an increase equal in amount to any tax FASTER may be required to collect, or pay, upon the sale or delivery of items purchased or licensed. If a certificate of exemption, or similar Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 3 of 28 document or proceeding, is to be made in order to exempt the sale from sales or use tax liability, the Customer will obtain and pursue such certificate, document or proceeding.
4. Proprietary Rights of FASTER
a. Nature of Rights and Title: Customer recognizes that all computer programs, system documentation, and other materials supplied by FASTER to Customer are subject to the proprietary rights of FASTER. Customer agrees that the programs, documentation, and all information or data supplied by FASTER, in machine-readable form are trade secrets of FASTER, are protected by civil and criminal law, and by the law of copyright, are very valuable to FASTER, and that their use and disclosure must be controlled.
Title: FASTER retains title to and all intellectual property rights to all programs, documentation, information or data furnished by FASTER. Customer retains rights to the asset data related to its property which is housed within the MSSQL database. Other aspects of that MSSQL database, such as database structure and database objects remain the confidential property of FASTER.
Customer shall keep each and every item to which FASTER retains title free and clear of all claims, liens and encumbrances except those of FASTER; and any act of Customer, voluntary or involuntary, purporting to create a claim, lien, or encumbrance on such an item shall be void.
b. Restrictions on Customer Use: The computer programs and other items supplied by FASTER hereunder are for the sole use of Customer and Customer’s employees/agents. i. Competitive Uses: Customer agrees that while this Agreement is in effect or while it has custody or possession of any property of FASTER, it will not directly or indirectly lease, license, sell, offer, negotiate, or contract to provide any software similar to that supplied hereunder to any third party, but this clause shall not be construed to prohibit Customer from acquiring, for its own use, software from third parties. Customer agrees that while this Agreement is in effect, or while it has custody or possession of any property of FASTER, it will not:
1. Copy or duplicate, or permit anyone else to copy or duplicate, any physical or electronic version of the programs, databases, documentation, or information furnished by FASTER.
2. Create or attempt to create, or permit others to create or attempt to create, by reverse engineering or object program or otherwise, the source programs, or any part thereof, from the object program or from other information made available under this Agreement or otherwise, (whether oral, written, tangible, or intangible).
Customer may copy for its own use, and at its own expense, documentation and any other materials provided by FASTER.
3. Modify or permit others to modify the system’s database structure. Any such modifications may void FASTER’s warranties and FASTER’s obligation to provide Software Upgrades and Support pursuant to Schedule B.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 4 of 28 ii. Demonstrations. Due to the proprietary nature of FASTER’s Fleet Management System, Customer agrees not to demonstrate or show this system to any competitors, or consultants that work with competitors, of FASTER.
c. Transfer/Expansion of Rights
The Customer’s rights to use the programs, documentation, and other materials supplied by FASTER under this Agreement shall not be assigned, licensed, or transferred to a successor, affiliate or any other person, firm, corporation, or organization voluntarily, by operation or law, or in any other manner without the prior written consent of FASTER, which shall not be unreasonably withheld.
d. Remedies
If Customer attempts to use, copy, license, or convey the items supplied by FASTER hereunder in a manner contrary to the terms of this Agreement or in competition with FASTER or in derogation of FASTER’s proprietary rights, whether these rights are explicitly herein stated, determined by law, or otherwise, FASTER may, in addition to other remedies available to it, seek equitable relief enjoining such action. e. Binding Effect & Definitions
The Customer agrees that this Agreement binds the named Customer and each of its employees, agents, representatives, and persons associated with it. This Agreement further binds each affiliated organization and any person, firm, corporation, or other organization with which the Customer may enter a joint venture or other cooperative enterprise. The term employee means individual on whose behalf the Customer withholds income taxes or makes contributions under the federal insurance contributions act or similar statutes.
5. Right of Customer to Inspect Records of FASTER
a. Customer, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of FASTER for the purpose of verifying any and all charges made by FASTER in connection with FASTER compensation under this Agreement, including termination of FASTER. FASTER agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to Customer. Any expenses not so recorded shall be disallowed by Customer. FASTER shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the Customer.
b. FASTER shall submit to Customer any and all reports concerning its performance under this Agreement that may be requested by Customer in writing. FASTER agrees to assist Customer in meeting Customer’s reporting requirements to the State and other agencies with respect to FASTER’s Services hereunder.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 5 of 28
6. Hold Harmless/Indemnification
a. To the extent permitted by law, FASTER agrees to protect, defend, hold harmless and indemnify Customer, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney’s fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by FASTER pursuant to this Agreement – including claims of any kind by FASTER’s employees or persons contracting with FASTER to perform any portion of the Scope of Services
b. FASTER’s obligation to protect, defend, indemnify, and hold harmless in full Customer and Customer’s employees, shall specifically extend to any and all employment-related claims of any type brought by employees, contractors, subcontractors or other agents of FASTER, against Customer (either alone, or jointly with FASTER), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought. c. To the extent FASTER is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act (“Act”) and/or any other similar federal or state law, FASTER warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless Customer for any penalties, fines, adverse rulings, or tax payments associated with FASTER’s responsibilities under the Act.
7. Insurance Requirements
During the term of this Agreement, FASTER shall provide and maintain in full force and effect, at no cost to Customer, insurance policies as set forth in Schedule E.
8. Confidential Information
“Confidential Information” means the Services, any software provided by FASTER to Customer under this Agreement, the logon identifiers and passwords provided to Customer and its Authorized Users, materials marked confidential by Customer or FASTER and any other information conveyed under this Agreement in writing or orally that is designated confidential or by the circumstances in which it is provided. Each party acknowledges and agrees that: (a) the Confidential Information constitutes trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information of the other party solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party’s prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party’s Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information of a similar nature, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (a) publicly available through no fault of the receiving party; (b) already in the other party’s possession and not subject to a confidentiality obligation; (c) obtained by the other party from any source without breach of any obligation of confidentiality; or (d) independently developed by the other party without reference to the disclosing party’s Confidential Information. Either party may disclose such Confidential Information as is required to be disclosed by order of a court or other governmental entity; provided Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 6 of 28 reasonable notice is given to the party owning such Confidential Information so that such party may challenge the disclosure or obtain a protective order or other equitable relief. The obligations in this section as to Confidential Information shall continue for a period of five years following termination of this Agreement.
Notwithstanding any of the above, by entering into this Agreement, FASTER expressly agrees and acknowledges that Customer is a governmental entity and is subject to the California Public Records Act. FASTER also expressly agrees and acknowledges that Customer and FASTER will comply with any and all requirements under the California Public Records Act.
9. Term and Termination
The initial term of this Agreement shall be five years from the Effective Date. After expiration of the initial term, Customer’s Services included in this Agreement shall automatically renew for successive one-year periods (the initial term and each renewal term, a “Term”) unless either party provides written notice of non-renewal at least 60 days prior to commencement of the applicable renewal term. The costs for Services in this agreement will increase by 3% (three percent) each year after the initial term. The parties will work in good faith to allow for each party to unwind this relationship if termination occurs.
a. Termination by FASTER
FASTER shall have the right, upon notice to Customer, to terminate this Agreement if: (a) Customer fails to pay FASTER any amount due hereunder and such failure to pay is not cured within 30 days following FASTER’s notice to Customer of such breach; (b) Customer materially breaches any term or condition of this Agreement, provided such breach is not cured by Customer within 30 days following FASTER’s notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
b. Termination by Customer
Customer will have the right, upon notice to FASTER, to terminate this Agreement if (a) FASTER is in material breach of this Agreement and FASTER fails to remedy such material breach within 30 days of its receipt of such notice; (b) as provided by Section 3(a) of Schedule B; (c) FASTER (i) terminates or suspends its business activities; (ii) makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
c. Termination for Convenience
City shall have the right to terminate this Agreement, without cause or penalty after the Initial Term, by giving not less than Thirty (30) days’ prior written notice to Contractor.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 7 of 28 d. Non-Appropriation of Funds
Customer’s funding of this Agreement shall be on a fiscal year basis (July 1 to June 30) and is subject to annual appropriations. Contractor acknowledges that City, a municipal corporation, is precluded by the California State Constitution and other laws from entering into obligations that financially bind future governing bodies, and that, therefore, nothing in this Agreement shall constitute an obligation of future legislative bodies of the City to appropriate funds for purposes of this Agreement. This Agreement will terminate immediately if funds necessary to continue the Agreement are not appropriated. Despite the foregoing, the Customer shall pay Contractor for any Services performed in accordance with this Agreement up to the date of termination.
10. General
a. Agreement Modifications
This Agreement can be modified only by a written agreement duly executed by persons authorized to sign agreements on behalf of Customer and of FASTER. Any variance from the terms and conditions of this Agreement in any order or other written notification from the Customer will be of no effect.
b. Entire Agreement
This Agreement constitutes the entire agreement among the parties, and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding on any party except to the extent incorporated in this Agreement. c. No Other Warranties outside of this Agreement
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, FASTER DISCLAIMS
ALL WARRANTIES WITH REGARD TO THE FASTER PRODUCT SOLD HEREUNDER, INCLUDING
ALL IMPLIED WARRANTIES OF MARKETABILITY AND FITNESS AND ALL OBLIGATIONS OR
LIABILITIES ON THE PART OF FASTER FOR DAMAGES INCLUDING, BUT NOT LIMITED TO,
CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE USE OR PERFORMANCE OF THE SYSTEM.
d. Severability
If any provision or provisions of this Agreement shall be held to be invalid, illegal, or nonenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
e. Force Majeure
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if the delay or default is caused by conditions beyond its control including, but not limited to, Acts of God, Government restrictions, wars, insurrections and or any other causes beyond the reasonable control of the party whose performance is affected.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 8 of 28 f. Limitation Period (3 years)
No action, regardless of form, arising out of this Agreement may be brought by either party more than three (3) years after the cause of action has arisen, or, in the case of nonpayment, more than three (3) years from the date of the last payment. g. Public Agencies
With FASTER’s approval, this Agreement may be extended for use by other municipalities and government agencies of any state. Any such usage by other municipalities and government agencies must be in accord with the ordinance, charter, and/or rules and regulations of the respective political entity. Special discount/s provided to Customer will not necessarily apply to other customers. Customer does not accept any responsibility or involvement in the purchase orders or contracts issued by other public agencies. h. Governing Law
This Agreement will be governed by the laws of the State of California. The Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. Further, the Customer agrees that it is the complete and exclusive statement of the agreement between the parties, which supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
AGREED TO:
City of Santa Clara, CA: TT FASTER LLC DBA FASTER Asset Solutions:
By: _________________________________ By: _________________________________ Title: _______________________________ Title: ________________________________ Date: ____________________________ Date: _____________________________ ____________________
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 9 of 28 President
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Schedule B: Software Upgrades & Support Agreement:
1. Scope: Software Upgrades & Support will consist of: (i). Upgrades to the Commercial Off the Shelf (COTS) software and custom software listed in Section 3; (ii). Correction of defects to keep the software in conformance with the applicable user documentation as noted in Section 4; and (iii). Telephone support listed in Section 5.
Support will not include: (i) set-up, installation, or configuration of hardware and software required for the Customer to access the FASTER software unless a separate hosting or Software as a Service (SaaS) schedule is included in this Agreement.
To the extent Customer used a previous version of the software or a legacy FASTER product and maintains that version or legacy FASTER product, this Agreement does not extend Software Upgrades & Support to that previous version or a legacy FASTER product unless specifically stated. Software Upgrades and Support for a previous software version or legacy FASTER product will require a separate Software Upgrades & Support Agreement at an additional cost.
2. Representative. Customer will identify both a Representative and an alternate to be designated as FASTER’s contact(s) for communicating with FASTER concerning support, making other requests, or providing notice under this Agreement. Customer may change the Representative upon notice to FASTER (other members of Customer’s Team may place support calls to FASTER Support).
3. Software Upgrades:
a. All software from FASTER requires that the Software Upgrades & Support Agreement be renewed annually by Customer. After the first year, Software Upgrades & Support will automatically renew unless Customer cancels per the termination provisions identified herein. Software Upgrades & Support provides the following upgrade benefits:
i. Upgrades for the Core COTS Product: Each new version release of the specific “Core COTS Product,” which are included under this Agreement, are provided at no added cost to Customer. As long as Software Upgrades & Support is maintained, Customer is entitled to new version releases of the FASTER product included under this Agreement.
ii. Upgrades to Add-on Products and Customizations: All Add-on Products and customizations will be upgraded to function with new versions of the Core COTS Product as long as Customer continues to renew Software Upgrades & Support.
And as long as Customer remains current on Software Upgrades and Support, the Customer may license additional add-ons.
4. Software Defects: Software Upgrades & Support covers issues or problems that are the result of verifiable, replicable errors (FASTER will use all reasonable means to verify and replicate) in the software ("Verifiable FASTER Defect"). An error will be a Verifiable FASTER Defect only if it constitutes a material failure by the software to function in accordance with the applicable software documentation. This documentation encompasses the COTS products and, if custom Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 17 of 28 integrations are included in Schedule A, the detailed Requirements Document for which Customer signed-off for any customization.
5. FASTER Software Support Coverage: Customer will have access to FASTER’s Technical Software Support Personnel ("Software Support") during Normal Business Hours. For the purposes of this Agreement, Normal Business Hours are defined as 7:30 am to 6:00 pm EST/EDT, Monday through Friday (excluding U.S. public holidays). Communications with Technical Support may be via telephone or e-mail. In addition to the support obligations listed above, FASTER provides emergency phone support twenty (24) hours a day, seven (7) days a week outside of Normal Business Hours by having Support staff members on-call for phone support for issues defined below under “Emergency FASTER Support.”
6. Emergency FASTER Support is available when: A. The system is frozen; B. The system has crashed and will not recover; or C. Customer cannot process work in the system.
7. IT Support & Consulting Not Provided: Unless Customer contracted FASTER to provide hosting, FASTER Support does not include IT tasks such as hardware upgrades or changes; server operating system or relational database management system installs, patches or upgrades; backup and restore or disaster recovery; virtual machine management; server and database cluster tasks, etc. (if FASTER is providing hosting, a separate schedule will address hosting and hosting support).
8. Other Limitations on Support: FASTER will provide troubleshooting and advice related to mistakes Customer’s employees may make (data deletion, data input error, administrative or user errors, etc.). As a courtesy, FASTER’s Support Staff accepts such calls and is willing to assist Customer in attempting to resolve such issues that are outside the scope of support outlined in this Agreement. As such, while FASTER staff often is able to add value in root cause analysis and troubleshooting of issues that are outside of FASTER’s responsibilities, there may be occasions when FASTER must discontinue support efforts on issues that are outside of FASTER’s responsibilities to be attentive to other customers’ support issues.
9. Training: Support does not include training. Live-remote training via a web-based medium, such as GoToMeeting, can be provided for an additional cost. FASTER also offers Regional Training for an added cost in geographic areas where there are concentrations of customers.
10. Customer’s Responsibilities:
a. Customer’s Representative must be qualified and authorized to communicate all necessary information. And unless FASTER is hosting the environment, Customer must have administrative access to the FASTER application, must have access to the database and hardware resources to be able to perform diagnostic testing and be available for follow-up, if required. FASTER does accept calls from Customer Staff who do not meet the above requirements. However, resolution of some issues may require a Customer Staff member who meets the above criteria be available. b. Customer accepts sole responsibility for any compatibility problems between the Services and any other application software or non-current software programs not maintained or supported by FASTER.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 18 of 28
11. Submitting a Request: Customer should be prepared to provide the following:
a. Telephone number and alternate method of contact (i.e., email address); b. A description of Customer’s problem or question;
c. Provide screen capture/s or video/s of the issue;
d. The circumstances under which the problem does or does not occur; e. Specific error messages, error numbers, log files and program numbers; and f. For customers who host FASTER on their internal IT infrastructure, additional information may be needed such as: Version of the FASTER Software in use, client or server operating systems versions, hardware specifications, etc.
12. FASTER will follow the below process to assist Customer with resolution of issues:
a. During Normal Business Hours, FASTER’s answering of phone calls is as follows: 95% by the third ring, 99% by the fifth ring.
b. There is an exception to the above during FASTER Support Team training, which will occur no more than twice a month and for no more than 90-minutes each. During these training sessions, the response time may drop to 90% of calls answered by the fifth ring. c. FASTER’s response to email support requests during Normal Business Hours is: 95% within three hours and 99% within one business day.
d. Once contact with a FASTER Support Team Member is established via phone or email, a case will be created for tracking purposes and the supplied information will be documented such that a Customer may request a case number for tracking purposes. e. In order to resolve the issues on Customer’s first call, FASTER’s Support is structured to:
answer Customer’s questions and identify logs, tests or error information the Customer needs to acquire and submit in order to troubleshoot the issue during that first phone call.
f. If the issue cannot be resolved in one phone call, the Support Team Member who took the call will diligently strive for timely resolution. If the Support Team Member cannot timely resolve this issue, he/she will engage with his/her supervisor to assign the case to the appropriate staff member for either resolution or escalation of the case to the Development Team.
13. Term:
For new customers: The term is dictated by the Statement of Work & Pricing Document.
For customers migrating to FASTER Web: The term and cost is dictated by the Statement of Work & Pricing Document.
For customers renewing annual Software Upgrades & Support for their current FASTER product:
The term of this Agreement shall be for one year from the day after the expiration of the previous Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 19 of 28 year’s Software Upgrades & Support Agreement. The renewal will include a 3% (three percent) cost increase from the previous year’s Software Upgrades & Support Agreement.
A lapse in Software Upgrades & Support is defined as non-payment for 60-days after the expiration of the previous year’s annual Software Upgrades & Support Agreement. Should the Customer lapse in its continuity for Software Upgrades & Support by non-payment of more than 60-days, renewal of annual Software Upgrades & Support will be at FASTER’s discretion and may require a penalty payment and a price that is based on current retail price.
Customer may opt to terminate Software Upgrades & Support at the end of the Upgrade & Support term identified in the Statement of Work & Pricing.
Customer may renew Software Upgrades & Support by paying for the next year’s annual Software Upgrades & Support with a 3% (three percent) increase within 60-days after the end of the previous support period.
A customer may, at any time, license other FASTER software that will also have a Software Upgrades & Support fee. There will be an additional Software Upgrades & Support fee due at the time of licensing the additional software based on the associated licensing fee. That fee is determined by FASTER pro-rating the months remaining on the current year’s Software Upgrades & Support. And the following year’s Software Upgrades & Support will include an increase reflecting that licensing and the commensurate 3% (three percent) increase.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 20 of 28 Schedule C: Software License Agreement
1. Perpetual License:
FASTER grants to Customer a perpetual, non-exclusive, non-transferable license to use the FASTER software specified in Schedule A in accordance with the terms of this Agreement.
2. Environment:
Customer understands that it may use FASTER’s proprietary software in a single environment. In this Agreement an “environment” is defined as a single installation (instance) of the FASTER application and one FASTER database. FASTER publishes specifications for each release of the product.
Therefore, the first use of a version of FASTER and each subsequent upgrade to a newer version requires that Customer’s environment comply with the minimum published specifications. Failure to meet the minimum specification puts Customer’s operation at risk and may lead to FASTER being unable to provide support until Customer’s environment complies with the published specification. a. SINGLE FASTER TEST/PRODUCTION ENVIRONMENT: In order to minimize costs, as well as control quality and reduce risk, there will only be one environment through the implementation process. This environment, upon installation and during implementation will be the test environment on which all tasks (system overview, configuration, testing, training, etc.) will be performed. Upon restoring a final Go-Live database, this test environment will then be promoted to become the production environment.
b. TEMPORARY POST-GO-LIVE TEST ENVIRONMENT: (The following only applies if the Customer is hosting FASTER. This does not apply if FASTER is hosting the environment.) After Go-Live of the FASTER system, this Agreement permits Customer to stand up a temporary test environment on its premises, limited to the following circumstances: Testing a new version of FASTER; Testing the delivery by FASTER of any custom deliverables built by FASTER; Testing upgrades and/or patches Customer performs on Customer’s server operating system, or database patches or upgrades; or, if Customer is replacing server hardware. This test environment can be stood up 30-days prior to any of the above-identified testing and must be turned off or deleted within 45-days after any of the above is complete. c. OTHER TEST OR DEVELOPMENT ENVIRONMENT/S: Customer may request a separate test or development environment for other purposes (e.g., during the implementation or after GoLive) with payment of an additional license fee and an annual support fee.
3. Copies, Backups & Catastrophic Fail-Over:
Customer understands that it is able to make regular backups of all programs and data and clone, copy or maintain a mirror image of the production environment for catastrophic fail over. This includes the use of virtual machine cloning. (Does not apply for FASTER-hosted customers.)
4. Software Modifications:
Customer may not modify the FASTER software, including, but not limited to, reverse engineering of any component of the FASTER system in order to perform any such modifications. Should Customer violate this provision, all warranties associated with the FASTER system are null and void.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 21 of 28 Schedule D: Hosting & Hosting Service Level Agreement (SLA)
1. Environment:
Single Environment: Customer understands that, unless the Customer subscribes to additional environments, it will access FASTER’s proprietary software in a single environment with one instance of the software and one database. Therefore, in this Agreement, an “environment” is defined as “a single install or instance of the FASTER application and a single FASTER database.” Test/Production Environment: In order to minimize Customer’s and FASTER’s IT costs, as well as to control quality and reduce risk, Customer will have only one environment through the implementation process. This environment, upon deployment and during implementation will be the test environment on which all tasks (system overview, configuration, testing, training, etc.) will be performed. Upon restoring a final Go-Live database, this same test environment will then become the production environment.
Additional Environments: Customer may request a separate test or development environment for other purposes (e.g., during the implementation or after Go-Live) with payment of an additional annual subscription fee.
2. Administration:
FASTER will issue to Customer’s designated “Administrator” an individual logon identifier and password (“Administrator’s Logon”) for purposes of the Customer administering the Services. Using the Administrator’s Logon, the Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules/permissions that control each such Authorized User’s access to the Services. Customer shall use commercially reasonable efforts to ensure that each Authorized User will: (a) Use a logon identifier to access all areas of the system and not allow the system to be accessed without a logon identifier; (b) not disclose his/her logon identifier to any person or entity; (c) not permit any other person or entity to use his/her logon identifier and (d) use the Services solely in accordance with the terms and conditions of this Agreement.
3. Database Backups
An incremental backup of the database to a local drive will occur hourly. And a full backup will occur nightly. Both the hourly and nightly full backups will be stored offsite.
4. Database Rights and Access:
4.1 Data Rights: Customer maintains full rights to its data contained in the database upon termination of this Agreement.
4.2 Access to Database: Unless the Customer purchases the optional “Database Access,” the Customer will not have access to the database or database server. However, the Customer will have access to download a copy of the database backup file on a regular basis. In addition, through the user interface of FASTER Web the Customer will have access to the Business Intelligence built into FASTER Web to search data, run reports and view data in dashboards.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 22 of 28 In other words, this means that unless you purchase the optional “Database Access,” which is at an added cost, there will NOT be the ability to run queries against the database or access the database directly in any way. As noted above, you can still get copies of the database backup file.
5. Hosting Service Level Agreement:
5.1 Availability: FASTER shall maintain a data center adequate to support Services to Customer twenty-four (24) hour per day, seven (7) days per week (excluding scheduled maintenance) with service availability of not less than 99.9% (the “Service Level Commitment”) calculated as specified below. (99.999% guaranteed up-time is available through a mirrored replication to a failover, co-location at an extra cost.)
5.1.1 Formula. The Service will, subject to the exceptions listed below, be available for a percentage of each calendar month at least equal to the Service Level Commitment. The availability of the Service for a given month will be calculated according to the following formula (referred to herein as the “Availability”):
Where: Total minutes in the month = TMM
Total minutes in the month the Service is unavailable = TMU And: ((TMM-TMU) X 100)/TMM = Availability
5.1.2 For purposes of this calculation, the Service will be deemed to be unavailable if Service application functions do not successfully complete. Further, the Service will not be deemed Unavailable for any downtime or outages excluded from such calculation by reason of the exceptions set forth in Sections
5.1.3 and 5.1.4 below. FASTER’s records and data will be the sole basis for all SLA calculations and determinations.
5.1.3 Exceptions: (a). Maintenance performed at Customer’s request outside of the normally scheduled maintenance will not be considered an outage. (b). The Service will not be considered to be Unavailable for any outage that results from any maintenance performed by FASTER of which Customer is notified 48 hours in advance and to which Customer does not reasonably object during the standard FASTER implementation window(s) agreed upon by FASTER and Customer during Customer’s implementation period. (c). Errors or issues created by the Customer will not be considered. (d). Should the Customer opt to purchase for an added cost access to the database, FASTER is not accountable for disruptions caused by the Customer’s actions related to the database.
5.1.4 The FASTER Network extends to, includes and terminates at the data center located router that provides the outside interface of each of FASTER’s WAN connections to its backbone providers (referred to herein as the “FASTER Network”). The Service will not be considered Unavailable for any outage unavailability of the Service due to (a) Customer's information content or application programming, acts or omissions of Customer or its agents, (b) failures of Internet backbone itself and the third-party network by which Customer connects to the Internet backbone or any other network unavailability outside of the FASTER Network; (c) delays or failures due to circumstances beyond FASTER’s reasonable control that could not be avoided by its exercise of due care; or (d) any other outage or downtime outside the FASTER Network.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 23 of 28
5.2 Remedies: Subject to the exceptions provided for in this SLA, Customer will have the rights set forth below.
5.2.1 If the total Availability (as calculated in Section 5.1 above) for a given month is (a) below the Service Level Commitment and greater than or equal to 99.5%, Customer will receive three (3) Service Credits; (b) below 99.5% and greater than or equal to 99.0%, Customer will receive ten (10) Service Credits; and (c) below 99.0%, Customer will receive fifteen (15) Service Credits. Notwithstanding the foregoing and in lieu of the preceding Service Credits, any continuous outage of more than twenty-four (24) hours shall automatically result in a total of one month’s value of Service Credits. If Service Level Commitment is not met for a second time in a thirty (30)-day period, then Customer shall be entitled to receive at Customer’s election, either (i) another month’s value of Service Credits, or (ii) the right to terminate this Hosting & Hosting Service Level Agreement.
5.2.2 For purposes of this SLA, a Service Credit will be deemed to be an amount equal 1/30th of the monthly fee for the hosting to the affected customers of the Services (herein referred to as “Service Credit”). Service Credits will be recognized for billing purposes in the month following the month giving rise to such Service Credits. All service credits will be calculated assuming a 30-day month. Except as provided above in Section 5.2.1 of this SLA, Customer’s right to receive service credit(s) will be Customer’s exclusive remedy for FASTER’s failure to satisfy the Service Level Commitment.
5.2.3 Remedies will not accrue (i.e., no Service Credits will be issued and an outage will not be considered unavailability for purposes of this SLA) if Customer is in breach of its payment obligations either when the outage occurs or when the credit would otherwise be issued.
5.3 Term: Hosting shall have a term of one year, and the term shall commence upon allocation of hardware in the datacenter, which will occur in the early stages of the implementation. After twelve months from commencement, these hosting services will automatically renew in oneyear increments unless cancelled by either party, provided a written notice of cancellation is received by the other party sixty (60) days in advance of anniversary date of commencement.
5.4. Performance: Customer understands that performance of the FASTER system is dependent on multiple factors. For example, Customer approved users can only access the system with a PC that meets the minimum client specifications provided by FASTER. Customer may need to request its IT Department increase bandwidth and/or improve network connections in order to improve performance. Also, Customer understands that system performance is affected by variables that FASTER cannot fully control, such as user habits, number of simultaneous users and database size.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 24 of 28 Schedule E: Insurance Requirements
Without limiting the Contractor’s indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
C. WORKERS’ COMPENSATION
1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 25 of 28
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers’ Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor’s work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85 or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the Indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance Indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor’s insurance.
3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non-renewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through D of this Exhibit C, above.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 26 of 28 E. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
F. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.
G. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement. Upon City’s request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be e-mailed to [email protected].
Or by mail to:
EBIX Inc.
City of Santa Clara – Public Works Department
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 27 of 28 P.O. Box 100085 – S2
Duluth, GA 30096
Telephone number: 951-766-2280
Fax number: 770-325-0409
H. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Agreement with TT FASTER LLC, dba FASTER Asset Solutions Page 28 of 28 City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-968 Agenda Date: 8/16/2022
REPORT TO COUNCIL AND STADIUM AUTHORITY BOARD
SUBJECT
Action on the Approval of a Municipal Law Enforcement Services Agreement with San Francisco Police Department (deferred from the July 12, 2022 City Council meeting)
COUNCIL PILLAR
Ensure Compliance with Measure J and Manage Levi’s Stadium
BACKGROUND
Prior to the opening of Levi’s Stadium in 2014, the Police Department worked with the National Center for Spectator Sports Safety and Security and the Department of Homeland Security to develop comprehensive safety and traffic management plans for the venue and surrounding area.
Through the planning process, the Police Department acknowledged our organization did not have the specialized expertise (e.g. ability to close highway off-ramps and corresponding traffic management skills), resources (e.g. air operations, crowd control, SWAT, etc.), and volume of sworn and civilian personnel necessary to implement these plans. As a result, agreements were formed with local, State and Federal law enforcement partners to provide these additional services.
The Police Department relies heavily on sworn and civilian professionals to provide a safe and enjoyable experience for stadium personnel, athletes/entertainers, event attendees, surrounding businesses, and nearby residents. The staffing needs vary from event to event based on event type, day of the week, time of the day, anticipated attendance, dignitaries present, intelligence gathered from similar events, etc.
DISCUSSION
Levi’s Stadium has been the host to 146 public events with attendance of 20,000+ since its opening, plus five nationally televised events without fans in 2020.
As the lead law enforcement agency, the Police Department secures local, State and Federal resources, as necessary, to mitigate traffic congestion for event patrons and local traffic, provide a safe venue for attendees, performers and stadium personnel as well as to deter intrusion into neighborhoods while maintaining access to adjacent business properties.
Currently, the Police Department has various agreements with multiple agencies throughout California to provide Per Diem Special Event Police Officers to augment the staffing for events at Levi’s Stadium. In addition, Municipal Law Enforcement Services Agreements are in place with the following local agencies to be called upon to provide services, as needed, at Levi’s Stadium:
• California Highway Patrol
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22-968 Agenda Date: 8/16/2022
• Monterey County Sheriff’s Office
• San Francisco County Sheriff’s Office
• Santa Clara County Sheriff’s Office
• Sunnyvale Department of Public Safety
Law enforcement agencies across the country are faced with staffing challenges. As a result, it is incumbent upon our Police Department to continue to expand the number of municipal law enforcement services agreements between the Stadium Authority, the City of Santa Clara, and partner agencies to ensure there are ample resources available when needed.
The proposed agreement allows the San Francisco Police Department, as called upon and available, to provide supplemental special detail law enforcement services for events taking place at the stadium and surrounding areas. Requests for services could include personnel, helicopters, tactical vehicles, equipment, and associated supplies to provide the services rendered. The agreement also allows for the San Francisco Police Department personnel responding to requests for services to transmit and broadcast communications on the Santa Clara Police Department’s dispatch frequency, licensed by the Federal Communications Commission. Included with the agreement are the hourly rates by classification, with 14.7% administrative fees. The rates do not reflect the travel time of two hours, per person, per event.
The Santa Clara Stadium Taxpayer Protection and Economic Progress Act, commonly referred to as Measure J, requires all public safety costs related to stadium operations to be reimbursed to the City.
In addition, in accordance with the contractual arrangements between the City, Stadium Authority and the team, the team reimburses the City for public safety related expenses incurred for NFL events.
For Non-NFL Events, the cost of public safety (including the costs charged by our public safety partners such as San Francisco Police Department) are charged against the Net Non-NFL Revenues of the Stadium Authority.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(5) in that it is a governmental organizational or administrative activity that will not result in direct or indirect changes in the environment.
FISCAL IMPACT
This agreement allows the San Francisco Police Department to provide support services for Levi’s Stadium, as requested and available.
Any expenses incurred by the City for the use of the San Francisco Police Department personnel at NFL events would be billed by the City to the Forty Niners, in accordance with the applicable contracts and with Measure J. For non-NFL events, the expenses are deducted from the Stadium Authority’s Net Non-NFL Revenues.
COORDINATION
This report was coordinated with the Finance Department and City Attorney’s Office.
PUBLIC CONTACT
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22-968 Agenda Date: 8/16/2022
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
Approve the Municipal Law Enforcement Services Agreement between the Santa Clara Stadium Authority, City of Santa Clara, and San Francisco Police Department for support services associated with events at Levi’s Stadium.
Reviewed by: Pat Nikolai, Chief of Police
Approved by: Rajeev Batra, City Manager/Executive Director
ATTACHMENTS
1. Municipal Law Enforcement Services Agreement between the Santa Clara Stadium Authority, City of Santa Clara and San Francisco Police Department
2. PLES hourly rates
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Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 1 of 9 Rev. 6-13-22
MUNICIPAL LAW ENFORCEMENT SERVICES AGREEMENT
by and between the
SANTA CLARA STADIUM AUTHORITY, THE CITY OF SANTA CLARA, and
SAN FRANCISCO POLICE DEPARTMENT
PREAMBLE
This agreement for the performance of municipal law enforcement services (“Agreement”) is made and entered into on this ______ day of __________, 2022, (“Effective Date”) by and between the San Francisco Police Department, 1245 3rd Street, 6th Floor San Francisco, California 94158 (“Agency”), the Santa Clara Stadium Authority, a Joint Powers Authority, with its primary business address at 1500 Warburton Avenue, Santa Clara, California 95050 (“Authority”), and the City of Santa Clara, a chartered municipal corporation, located at 1500 Warburton Avenue, Santa Clara, California 95050 (“City”). Authority, City and Agency may be referred to individually as a “Party” or collectively as the “Parties” to this Agreement.”
RECITALS
A. Authority and City are desirous of contracting with Agency for the performance of the law enforcement functions described herein.
B. Agency is agreeable to rendering such law enforcement services pursuant to the terms and conditions set forth in this Agreement.
C. Pursuant to the authority set forth in Government Code sections 54981 and 55632, Authority and City seek additional law enforcement services, and Agency agrees to provide additional law enforcement services, for periodic events at the Santa Clara Stadium site.
The Parties agree as follows:
AGREEMENT PROVISIONS
1. SERVICES TO BE PROVIDED.
A. Agency agrees, as available, to provide supplemental special detail law enforcement services for events taking place at the Stadium site and surrounding areas during the term of this Agreement. The classification and approximate numbers of personnel provided by Agency will be determined and mutually agreed upon, in writing, between Agency, Authority and the Santa Clara Chief of Police prior to each event. The Parties shall establish and agree to the number of hours necessary for the Agency employees to perform the requested services.
City herein provides consent, pursuant to Penal Code section 830.1(a)(2), for any Agency peace officer providing services hereunder to exercise full peace officer authority within the City’s jurisdiction.
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 2 of 9 Rev. 6-13-22
B. Except as otherwise specifically set forth, such services shall only encompass duties and functions of the type coming within the jurisdiction of, and customarily rendered by, Agency under its Charter and/or municipal codes, and the statutes of the State of California, and under the Charter and municipal codes of the City of Santa Clara.
C. For special detail officers, the request for services shall be a written request from the Santa Clara Police Chief or his/her designee. The request shall contain specific dates of service, hours of operation, number of personnel requested, and classification of personnel requested. For the purpose of performing said services, Agency shall furnish and supply, as available, all necessary labor, supervision, personnel, helicopters, tactical vehicles, equipment, fuel, and supplies necessary to provide the services to be rendered hereunder. The Authority and/or City acknowledges that additional equipment charges for special equipment such as helicopters, tactical vehicles, equipment, fuel, and supplies may be appropriate depending upon the services requested and may be charged by Agency as above and beyond the authorized pay rate for personnel. The request shall be signed by a representative of the Authority and/or City who is duly authorized to enter into such agreements for supplemental law enforcement services. The request shall be submitted via email to Agency specified contact.
D. The City hereby grants to Agency and its personnel responding to requests for services herein the right to transmit and broadcast communications to the Santa Clara Police Department's units via the Santa Clara Police Department’s designated dispatch frequency and/or any other law enforcement frequency for which the City of Santa Clara is licensed by the FCC.
E. Mutual aid agreements pursuant to the California Emergency Plan (Government Code §§ 8550 et seq.) and the Master Mutual Aid Agreement: If any mutual aid agreement(s) currently in place are triggered during any performance of services under this Agreement, the mutual aid agreement(s) shall govern all necessary personnel and/or tactics.
2. ADMINISTRATION OF PERSONNEL.
A. In the event of a dispute between the Parties to this Agreement as to the extent of the duties and functions to be rendered hereunder, or the minimum level or manner of performance of such service, the City shall be consulted, and a mutual determination thereof shall be made by both Agency and the City in consultation with the City of Santa Clara’s Chief of Police.
B. The rendition of the services performed by Agency, the discipline of its officers, and other matters incident to the performance of such services and the control of personnel so employed shall remain with Agency.
C. With regard to sections A. and B., if there remains a disagreement as to the minimum level of services for a particular event, the Parties agree that the Santa Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 3 of 9 Rev. 6-13-22
Clara Chief of Police shall have final and conclusive determination of levels of service provided by Agency’s officers.
D. All Authority and/or City employees who work in conjunction with Agency pursuant to this Agreement shall remain Authority and/or City employees, are not Agency employees, and have no claim or right to any Agency employment benefits or policies. Similarly, all Agency employees who work in conjunction with Authority and/or City pursuant to this Agreement shall remain Agency employees, are not Authority or City employees, and have no claim or right to any Authority or City employment benefits or policies.
E. Neither Authority or City shall be called upon to assume any liability for the direct payment of any Agency salaries, wages, or other compensation to any Agency personnel performing services hereunder for said Authority and/or City.
Except as herein otherwise specified, neither Authority or City shall be liable for compensation or indemnity to any Agency employee or agent for injury or sickness arising out of his/her status as a contract agent of the Authority and/or City.
3. COMPENSATION AND PAYMENT.
A. The Authority shall pay Agency for the services it provides under the terms of this Agreement at the rates established by the Authority, as they may be amended from time to time. The rates listed below may be periodically adjusted by the Authority effective July 1 of each year to a mutually agreed upon rate. In such case, the annual rate adjustment shall be attached to this Agreement as Exhibit A to reflect the change in rates each fiscal year. The Parties specifically agree that such adjustment and change in Exhibit A each year is a valid amendment to this Agreement, and that no formal Amendment form need be used for such annual rate adjustment. The Parties will separately execute Exhibit A each year, or whenever there is a change in Exhibit A rates.
B. For and in consideration of Agency providing supplementary law enforcement services for the Authority and/or City under this Agreement, the Authority agrees to pay Agency for said services at the hourly rates as indicated in Exhibit A.
The rates in Exhibit A are developed by the Agency. These rates are designed to reimburse Agency’s costs in the compensation of employees, the administration of workers’ compensation benefits, and the Agency’s overhead attributable to providing the services identified in this Agreement, and as they may be amended from time to time.
4. PAYMENT PROCEDURES.
A. On a monthly basis, Agency shall submit a summarized invoice which covers all services performed during said month, to the Authority and the Authority shall pay Agency for all undisputed amounts within thirty (30) days after date of said invoice.
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 4 of 9 Rev. 6-13-22
B. If such payment is not delivered to Agency within thirty (30) days after the date of the invoice, Agency is entitled to recover interest thereon. Said interest shall be at a rate of five percent (5%) per annum or any portion thereof, calculated from the date payment was due.
C. For all disputed amounts, Authority shall provide Agency with written notice of the dispute including the invoice date, amount, and reasons for dispute within ten (10) days after receipt of the invoice. The Parties shall memorialize the resolution of the dispute in writing. For any disputed amounts, interest shall accrue at the rate stated in subsection B, above, if payment is not received within thirty (30) days after the dispute resolution is memorialized.
5. CANCELLATION OF PERSONNEL.
A. The Authority shall not be charged for cancellations made more than 24 hours prior to the scheduled event/assignment.
B. The Authority agrees that if cancellation is made within 24 hours prior to the scheduled event/assignment and the assigned Agency officer cannot be notified of such cancellation, Authority shall reimburse Agency a minimum of four (4) hours of compensation for each assigned officer pursuant to the rates identified herein.
C. Agency agrees to make all reasonable efforts to notify its assigned officer(s) of the cancellation.
6. TERM OF AGREEMENT.
A. The term of this Agreement shall commence upon execution by the Parties and continue, unless terminated sooner or extended in whole or in part as provided for herein.
7. TERMINATION.
A. Either Party may terminate this Agreement with or without cause by giving not less than sixty (60) days advance written notice to the other Party.
B. Notwithstanding the foregoing, Agency may terminate the Agreement on only twenty (20) days advance notice, or less in the event of exigent circumstances, if Agency concludes that there are insufficient personnel to provide the agreed upon services and still perform other Agency duties as required by law.
C. In the event of a termination, each Party shall fully discharge all obligations owed to the other Party accruing prior to the date of such termination, and, except as otherwise provided herein, each Party shall be released from all obligations, which would otherwise accrue subsequent to the date of termination.
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8. FAIR EMPLOYMENT.
While in the performance of services under this Agreement, Agency and its employees and agents shall not discriminate against any other employee or agent because of race, color, creed, national origin, gender, sexual orientation, age, disability, religion, ethnic background, or marital status, in violation of state or federal law.
9. HOLD HARMLESS/INDEMNIFICATION.
A. For purposes of indemnification, each Party shall be responsible for the acts of its participating employee(s) and shall incur any liabilities arising out of the service and activities of those employees.
B. Any Agency employee who performs duties under this Agreement shall be deemed to be continuing under the general employment of his or her respective jurisdiction and shall have the same powers, duties, privileges, responsibilities, and immunities as are conferred upon such employee by law in his or her own jurisdiction. Pursuant to Insurance Code Section 11663, the general employer shall be responsible for the entire cost of any worker’s compensation payable on account of injury occurring in the course of and arising out of general and special employments.
C. Pursuant to Government Code Section 895.4, each of the parties hereto shall fully indemnify and hold each of the other parties, their officers, employees, and agents, harmless from any damage or liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of negligent acts or omissions or willful misconduct of the indemnifying party, its officers, employees or agents, under or in connection with any work performed or authority delegated to such party under this Agreement. No party, nor any officer, employee or agent thereof shall be responsible for any damage or liability occurring by reason of the negligent acts or omissions or willful misconduct of the other parties hereto, their officers, employees or agents, under or in connection with any work performed or authority delegated to such other parties under this Agreement.
10. ASSIGNMENT, DELEGATION, AND SUBCONTRACTING.
A Party shall not assign its rights and/or subcontract, or otherwise delegate, its duties under this Agreement, either in whole or in part, without the prior written consent of the other Party, and any attempted assignment or delegation without such consent shall be null and void.
11. INTEGRATED DOCUMENT.
This Agreement represents the entire agreement between Authority, City and Agency. No other understanding, agreements, or conversations with any representative of either Party prior to execution of this Agreement shall affect or modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial information and is not binding upon either Party.
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 6 of 9 Rev. 6-13-22
12. SEVERABILITY AND WAIVER.
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect. Agency agrees that waiver by Authority and/or City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement.
13. NOTICES.
All notices to the Parties shall, unless otherwise requested in writing, be sent to Authority addressed as follows:
Santa Clara Stadium Authority
Attention: Executive Director
1500 Warburton Ave.
Santa Clara, CA 95050
or by facsimile at (408) 241-6771
And to City as follows:
City of Santa Clara
Attn: Chief of Police
601 El Camino Real
Santa Clara, CA 95050
or by facsimile at (408) 248-0276
And to Agency addressed as follows:
San Francisco Police Department
1245 3rd Street, 6th Floor
San Francisco, CA 94158
or by facsimile
If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed.
The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday.
14. LAW GOVERNING CONTRACT AND VENUE.
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara.
[Signatures on next page.]
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 7 of 9 Rev. 6-13-22
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.
CITY OF SANTA CLARA, CALIFORNIA,
a chartered California municipal corporation
APPROVED AS TO FORM:
Office of City Attorney RAJEEV BATRA
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
SANTA CLARA STADIUM AUTHORITY
a Joint Powers Authority
APPROVED AS TO FORM:
Office of Authority Council RAJEEV BATRA
Executive Director
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“AUTHORITY”
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 8 of 9 Rev. 6-13-22
SAN FRANCISCO POLICE DEPARTMENT
APPROVED AS TO FORM:
By: SAN FRANCISCO POLICE
DEPARTMENT
By: __________________________
Title: _________________________
1245 3rd Street, 6th Floor
San Francisco, CA 94158
Telephone: (415) 575-6718
Fax: (415) 837-7372
“AGENCY”
I:\49ers\Stadium Authority\Law Enforcement Security Agreements\Municipal Law Enforcement Services Agreement (SAN FRANCISCO
POLICE DEPARTMENT)
Municipal Law Enforcement Services Agreement/SAN FRANCISCO POLICE DEPARTMENT Page 9 of 9 Rev. 6-13-22
MUNICIPAL LAW ENFORCEMENT SERVICES AGREEMENT
by and between the
SANTA CLARA STADIUM AUTHORITY, THE CITY OF SANTA CLARA, and
SAN FRANCISCO POLICE DEPARTMENT
EXHIBIT A
(INSERT FEE SCHEDULE HERE)
RANK 1 Hour 2 Hours 3 Hours 4 Hours 5 Hours 6 Hours 7 Hours 8 Hours 9 Hours 10 Hours Q4 Day 125.23 250.45 375.68 500.91 626.13 751.36 876.58 1001.81 1,127.04 1,252.26 Q4 Night 130.44 260.89 391.33 521.78 652.22 782.66 913.11 1043.55 1,174.00 1,304.44 Q4 MC Day 130.37 260.73 391.10 521.46 651.83 782.19 912.56 1042.92 1,173.29 1,303.65 Q4 MC Night 135.80 271.59 407.39 543.19 678.99 814.78 950.58 1086.38 1,222.17 1,357.97 Q52/Q35 Day 145.41 290.81 436.22 581.63 727.03 872.44 1017.84 1163.25 1,308.66 1,454.06 Q52/Q35 Night 151.47 302.93 454.40 605.86 757.33 908.79 1060.26 1211.72 1,363.19 1,514.65 Q52 MC Day 150.55 301.09 451.64 602.18 752.73 903.27 1053.82 1204.36 1,354.91 1,505.45 Q52 MC Night 156.82 313.64 470.45 627.27 784.09 940.91 1097.72 1,254.54 1,411.36 1,568.18 Q62 Day 166.05 332.10 498.15 664.20 830.25 996.30 1162.35 1,328.40 1,494.45 1,660.50 Q62 Night 172.97 345.94 518.90 691.87 864.84 1037.81 1210.78 1,383.75 1,556.71 1,729.68 Q62 MC Day 171.19 342.38 513.56 684.75 855.94 1027.13 1198.32 1,369.51 1,540.69 1,711.88 Q62 MC Night 178.32 356.64 356.64 713.28 891.61 1069.93 1,248.25 1,426.57 1,604.89 1,783.21 Q82 Day 209.83 419.66 629.48 839.31 1049.14 1258.97 1,468.80 1,678.62 1,888.45 2,098.28 Q82 Night 218.57 437.14 655.71 874.28 1092.85 1,311.43 1,530.00 1,748.57 1,967.14 2,185.71 The costs are computed at the overtime rate plus ,FRINGES OF 2.550% (1.45% Medicare, 1.00% Retiree Health and 0.10% Unemployment Insurance) and ADMIN FEE. (PREMIUM PAY STARTS 6:00 p.m. THRU 06:00 a.m.) KT 07/01/22
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Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
22-715 Agenda Date: 8/16/2022
REPORT TO COUNCIL
SUBJECT
Action on Amendment No. 1 to the Agreement with WRECO for the Great America Parkway and Mission College Boulevard Intersection Improvements Project
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
On August 20, 2019, City Council approved a design professional services agreement with WRECO for the Great America Parkway and Mission College Boulevard Intersection Improvements Project (Project, Attachment 1). The Project includes widening of the intersection to include an additional vehicle lane and traffic signal replacement at the Great America Parkway (GAP) and Mission College Boulevard (MCB) Intersection, traffic signal modification at the MCB and Marriot Driveway intersection, replacement of streetlights, pavement rehabilitation, and modifications to existing utilities including storm drain, Silicon Valley Power (SVP) electrical and fiber optic facilities along GAP and MCB. The Project also adds a new bicycle lane on GAP and MCB to close existing gaps and complete the bicycle network in accordance with the Bicycle Plan 2018 Update. Additionally, the Project includes pedestrian improvements such as reconstruction of curb ramps and sidewalks to comply with Americans with Disabilities Act (ADA) requirements, installation of Accessible Pedestrian Signals, and removal of “porkchop” islands at the GAP and MCB Intersection.
The Project progressed through the design process and the City was provided with the 90% design including a revised construction cost estimate. During the review of the 90% design plans and revised construction cost estimate provided by WRECO, City staff noted that the construction cost estimate had increased and deemed it necessary to explore value engineering options in an effort to reduce construction costs.
DISCUSSION
Through the value engineering process, staff completed additional traffic analyses of the GAP and MCB intersection to explore options that could have the potential to reduce project costs. Based on that analysis, staff was able to identify modified lane configuration options that not only decreased necessary roadwork (reducing costs) but would also minimize traffic delays based on the latest traffic volume forecasts.
The additional traffic analyses considered future traffic volume forecasts that were used for several projects that have been previously approved including the Freedom Circle Focus Area Plan, Lawrence Station Area Plan, Patrick Henry Drive Specific Plan, Related Santa Clara, Santa Clara Square, and Tasman East Specific Plan. The analyses identified several vehicle lane changes that could be made to reduce construction costs without negatively impacting traffic operations.
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22-715 Agenda Date: 8/16/2022
Staff worked with WRECO to review the options and based on the additional traffic analyses, changes are being recommended that reduce construction costs, schedules, and traffic delays compared to the original project design. The modifications include:
· Delete proposed third left turn lane from northbound GAP to westbound MCB as traffic volumes can be adequately served by the existing two left turn lanes. · Delete proposed third left turn lane from westbound MCB to southbound GAP. Instead, convert one of two through lanes into a third left turn lane as through traffic volumes are adequately served by one lane.
· Delete the removal and relocation of the center medians within portions of MCB and GAP. This work is no longer needed since the left turn lanes described previously are not added. · Delete some additional widening of GAP that is no longer needed since the center median is not being relocated.
· Add curb bulbouts to the northwest and southwest corners of the intersection to reduce pedestrian crossing distances.
Based on the construction cost estimates prepared by WRECO for both the original and revised designs, it is anticipated that the modifications could lead to construction cost savings of approximately $2.6 million.
In order to account for the necessary Project design changes so cost reductions could be achieved, staff coordinated with WRECO and determined the extent of the redesign work that would be needed, starting from the 60% design milestone of the original scope of work. The proposed Amendment No. 1 (Attachment 2) includes a negotiated scope of services and schedule of fees that incorporates the effort necessary to complete the redesign of the Project. The scope of services generally includes: preparation of construction documents (plans, specifications, and estimates) for public works bidding, permit applications, preparation of exhibits/plats/legal documents, engineering support services during bid and award and construction, and record drawing preparation.
Staff recommends approval of Amendment No. 1 to the agreement with WRECO in the amount of $381,629 to complete design services needed for the Project. Approval of this amendment will provide the design professional services necessary to develop documents for Project bidding and construction. Prevailing wage requirements that were included in the original agreement remain applicable under Amendment No. 1.
ENVIRONMENTAL REVIEW
This action is for design professional services and the action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act ("CEQA") Guidelines section 15378 as the action being considered does not commit the City to undertake the project and future discretionary approvals are required by the City to approve the project for construction.
FISCAL IMPACT
The not-to-exceed amount of the original agreement is $1,028,000. This amount includes $930,233 for basic services, $1,500 for reimbursable expenses, and $96,267 for additional services. The proposed Amendment No. 1 adds $381,629 to the original agreement, bringing the total not-toexceed amount to $1,409,629 ($1,221,147 for basic services, $1,500 for reimbursable expenses and $186,982 for additional services). Funds for Amendment No. 1 are available in Public Works’ capital improvement program MCB/GAP Intersection Improvement Project budget.
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22-715 Agenda Date: 8/16/2022
Staff anticipates that additional amounts will be required in the Capital Improvement Program Budget to fund the full construction costs of the Project. Currently staff is reviewing options to fund the additional costs with traffic impact fees, City regional transportation funds as well as developer contributions. Furthermore, staff has submitted several applications for federal grants and earmarks to support the project. Proposed budget amendments will be presented to the Council for consideration at the time of construction contract award.
COORDINATION
This report has been coordinated with the Finance Department and City Attorney’s Office.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
1. Approve and authorize the City Manager to execute Amendment No. 1 to the Agreement with WRECO in the amount of $381,629 for Great America Parkway and Mission College Boulevard Intersection Improvements Project for a total Agreement not-to-exceed amount of $1,409,629; and
2. Authorize the City Manager to make minor modifications to the agreement if needed and to extend the term.
Reviewed by: Craig Mobeck, Director of Public Works
Approved by: Rajeev Batra, City Manager
ATTACHMENTS
1. Original Agreement
2. Amendment No. 1
City of Santa Clara Page 3 of 3 Printed on 8/11/2022
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EBIX Insurance No. S200004254
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
WRECO
FOR
GREAT AMERICA PARKWAY AND MISSION COLLEGE BOULEVARD
INTERSECTION IMPROVEMENTS.
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and WRECO, a California corporation ("Consultant"), City and Consultant may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."
RECITALS
A. City desires to secure the design professional services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services"; B. "Design professional" includes licensed architects, licensed landscape architects, registered professional engineers and licensed professional land surveyors; C. Consultant represents that it, and its subconsultants, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet o.bjectives a.nd requirements of City; and,
D. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.
The Parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Consultant shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A- Scope of Services
Exhibit B - Schedule of Fees
Design Professional Agreement with WRECO (GAP-MCB Intersection lmprov. Project) Page 1 Rev. 09-28-18
Exhibit C - Insurance Requirements
Exhibit D - Labor Compliance Addendum
This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on July 17, 2019 and terminate on December 31, 2023.
3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Consultant shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.
A. All reports, costs estimates, plans and other documentation which may be submitted or furnished by Consultant shall be approved and signed by an appropriate qualified licensed professional in the State of California.
8. The title sheet for specifications and reports, and each sheet of plans, shall bear the professional seal, certificate number, registration classification, expiration date of certificate and signature of the design professional responsible for their preparation.
4. WARRANTY
Consultant expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions upon which this Agreement is based. Consultant agrees to promptly replace or correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Consultant. If Consultant fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Consultant for the cost incurred by City.
5. QUALIFICATIONS OF CONSUL TANT - STANDARD OF CARE
Consultant represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, Design Professional Agreement with WRECO (GAP-MCB Intersection lmprov. Project) Rev. 09-28-18
expressed and implied, contained herein, and City expressly relies upon Consultant's representations regarding its skills and knowledge. Consultant shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
6. COMPENSATION AND PAYMENT
In consideration for Consultant's complete performance of Services, City shall pay Consultant for all materials provided and Services rendered by Consultant in accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this Agreement is One Million Twenty Eight Thousand dollars ($1,028,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the -Services. All work performed or materials provided in excess of the maximum compensation shall be at Consultant's expense. Consultant shall not be entitled to any payment above the maximum compensation under any circumstance.
7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) . days' prior written notice to Consultant.
B. Termination for Default. If Consultant fails to perform any of its material obligations under this Agreement, in addition to all other remedies 1 provided by law, City may terminate this Agreement immediately upon written notice to Consultant.
C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Consultant will deliver to City all City information or material that Consultant has in its possession.
8. ASSIGNMENT AND SUBCONTRACTING
City and Consultant bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Consultant shall not hire subconsultants without express written permission from City.
Consultant shall be as fully responsible to City for the acts and omissions of its subconsultants, and of persons either directly or indirectly employed by them, as Consultant i.s for the acts and omissions of persons directly employed by it.
Design Professional Agreement with WRECO (GAP.-MCB Intersection lmprov. Project) Rev. 09-28-18
9. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
10. INDEPENDENT CONTRACTOR
Consultant and all person(s) employed by or contracted with Consultant to furnish' labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Consultant has full rights to manage its employees in their performance of Services under this Agreement.
11. · CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Consultant and all other written information submitted to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Consultant which is otherwise known to Consultant or becomes generally known to the related industry shall be deemed confidential.
12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Consultant may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Consultant shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties. ·
13. RIGHT OF CITY TO INSPECT RECORDS OF CONSUL TANT
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Consultant for the purpose of verifying any and all charges made by Consultant in connection with Consultant compensation under this Agreement, including termination of Consultant. Consultant agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Consultant shall bear the Design Professional Agreement with WRECO (GAP-MCB Intersection lmprov. Project) Rev. 09-28-18