Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
CONSULTING SERVICES AGREEMENT BETWEEN
THE CITY OF UNION CITY
AND
CAL-WEST LIGHTING & SIGNAL MAINTENANCE, INC.
FOR STREETLIGHT MAINTENANCE, ON-CALL SUPPORT
AND EMERGENCY REPAIR SERVICES
This Agreement for consulting services is made by and between the City of Union City, a municipal corporation, (“City”) and Cal-West Lighting & Signal Maintenance, Inc., a corporation, with offices located at 530 North Marburg Way, San Jose, CA 95133, (“Consultant”), (together referred to as the “Parties”) as of January 1, 2026 (the “Effective Date”).
Section 1. Services. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A and incorporated herein, at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2027, and Consultant shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City’s right to terminate the Agreement, as referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement according to the standards observed by a competent practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.4 Time is of the Essence. Time is of the essence. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to timely finish the Scope of Work, to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant’s obligations hereunder.
1.5 Public Works Requirements. Because the services described in Exhibit A include “work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work,” the services constitute a public works within the definition of Section 1720(a)(1) of the California Labor Code. As a result, Consultant is required to comply with the provisions of the Labor Code applicable to public works, to the extent set forth in Exhibit C. Consultant shall waive, indemnify, hold harmless, and defend City concerning any liability arising out of Labor Code Section 1720 et seq.
Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed One Hundred Fifty Thousand Dollars ($150,000), notwithstanding any contrary indications that may be contained in Consultant’s proposal for services to be performed and reimbursable costs incurred under Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
this Agreement. In the event of a conflict between this Agreement and Consultant’s proposal, attached as Exhibit B, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement. Consultant shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Consultant shall not bill City for duplicate services performed by more than one person.
Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant’s estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information:
• Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; • Project name & number if applicable;
• Per Item 1.1, Terms of Service expiration date;
• Purchase Order number to expedite payment;
• The beginning and ending dates of the billing period; • A task summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion;
• At City’s option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder; • The Consultant’s signature;
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within 60 days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment.
2.5 Hourly Rate/Fees. Unless the services provided are for a lump sum or flat fee, fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation cost proposal attached hereto as Exhibit B. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit B, the Agreement shall prevail.
2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B, attached hereto and incorporated herein. Reimbursable expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses shall not include a mark-up and are billed as a direct costs. In no event shall expenses be advanced by the City to the Consultant. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator.
2.10. Business License. The Consultant is not authorized to perform services or incur costs whatsoever under the terms of this Agreement until Consultant applies for and has been issued a business license from the City pursuant to Title 5 of the Union City Municipal Code.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, longdistance telephone or other communication charges, vehicles, and reproduction facilities.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work for the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence to the City that such insurance is in effect. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution.
4.1 Required Coverage. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
COVERAGE TYPE OF INSURANCE MINIMUM LIMITS
A Commercial General
Liability
Premises Liability; Products
and Completed Operations;
Contractual Liability; Personal
Injury and Advertising Liability
$1,000,000 per occurrence;
Bodily Injury and Property
Damage
$2,000,00 in the aggregate;
Commercial general coverage
shall be at least as broad as
Insurance Services Office
Commercial General Liability
occurrence form CG 0001
(most recent edition) covering
comprehensive General
Liability on an “occurrence”
basis.
B Commercial or Business
Automobile Liability
All owned vehicles, hired or
leased vehicles, non-owned,
borrowed and permissive uses.
Personal Automobile Liability
is acceptable for individual
contractors with no
$1,000,000 per occurrence;
Any Auto; Bodily Injury and
Property Damage. Automobile
coverage shall be at least as
broad as Insurance Services
Office Automobile Liability
form CA 0001 (most recent
edition), Code 1 (any auto). No
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
transportation or hauling
related activities
endorsement shall be attached
limiting the coverage.
C Workers’ Compensation
(WC) and Employers
Liability (EL)
Required for all contractors
with employees
WC: Statutory Limits
EL: $100,000 per accident for
bodily injury or disease.
Consultant may rely on a selfinsurance program to meet those requirements, but only if
the program of self-insurance
complies fully with the
provisions of the California
Labor Code. The insurer shall
waive all rights of subrogation
against the City and its officers,
officials, employees, and
volunteers for loss arising from
work performed under this
Agreement.
D Professional Liability/Errors
& Omissions
Includes endorsements of
contractual liability
$1,000,000 per occurrence
$2,000,000 policy aggregate;
Any deductible or self-insured
retention shall not exceed
$150,000 per claim.
4.2 Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. All required insurance shall be maintained during the entire term of the Agreement with the following exception: Insurance policies and coverage(s) written on a claims-made basis shall be maintained during the entire term of the Agreement and until three (3) years following termination and acceptance of all work provided under the Agreement, with the retroactive date of said insurance (as may be applicable) concurrent with the commencement of activities pursuant to this Agreement b. All insurance required above with the exception of Professional Liability, Personal Automobile Liability, Workers’ Compensation and Employers Liability, shall be endorsed to name as additional insured: City of Union City, its City Council, and all City officers, agents, employees, volunteers and representatives.
c. For any claims related to this Agreement or the work hereunder, the Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
d. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days’ prior written notice has been provided to the City.
e. Certificates of Insurance: Before commencing operations under this Agreement, Consultant shall provide Certificate(s) of Insurance and applicable insurance endorsements, in form and satisfactory to City, evidencing that all required insurance coverage is in effect. The City reserves the rights to require the Consultant to provide complete, certified copies of all required insurance policies.
f. Subcontractors: Consultant shall include all subcontractors as an insured (covered party) under its policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements stated herein. g. Claims-made limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
i. The retroactive date of the policy must be shown and must be before the date of the Agreement.
ii. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates.
iii. If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the date of this Agreement, Consultant must purchase an extended period coverage for a minimum of three (3) years after completion of work under this Agreement.
iv. A copy of the claim reporting requirements must be submitted to the City for review prior to the commencement of any work under this Agreement.
4.3 All Policies Requirements.
a. Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. Insurance shall be maintained through an insurer with a minimum A.M. Best Rating of A- or better, with deductible amounts acceptable to the City. Acceptance of Consultant’s insurance by City shall not relieve or decrease the liability of Consultant hereunder. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the Consultant. b. Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, employees, and volunteers; or the Consultant shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
c. Wasting Policies. No policy required by this Section 4 shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense). d. Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss.
Consultant agrees to obtain any endorsements that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the consultant, its employees, agents, and subcontractors.
4.4 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant’s breach:
• Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
• Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or • Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT’S RESPONSIBILITIES.
Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City.
The Consultant’s obligation to defend and indemnify shall not be excused because of the Consultant’s inability to evaluate Liability or because the Consultant evaluates Liability and determines that the Consultant is not liable to the claimant. The Consultant must respond within 30 days, to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Consultant under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the tender of defense, whichever occurs first.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any type to express or implied indemnity against the Indemnitees.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of consultant to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent.
Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City.
7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon thirty (30) days’ written notice to City and shall include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all work product, including, but not limited to documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties.
8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant’s unique personal competence, experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Consultant pursuant to Section 2 if Consultant had completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties.
9.2 Consultant’s Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of 3 years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
10.1 Attorneys’ Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed paper materials on paper containing a minimum of 30% post-consumer recycled content when they are available in the marketplace at equal or less cost than virgin paper and are equal in performance to virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a “conflict of interest,” as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq.
Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement.
Consultant understands that, if this Agreement is made in violation of Government Code § 1090 et seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant. Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
10.9 Contract Administration. This Agreement shall be administered by the City Manager, or his designee, identified as Paul Roman, Streets Supervisor ("Contract Administrator").
All correspondence, meeting documentation, invoices and project deliverables shall be directed to or through the Contract Administrator.
Paul Roman
Streets Supervisor
City of Union City
34009 Alvarado-Niles Road
Union City, CA 94587
[email protected]
10.10 Notices. Any written notice to Consultant shall be sent to:
Craig Geis
President
Cal-West Lighting & Signal Maintenance, Inc.
530 North Marburg Way
San Jose, CA 95133
[email protected]
All other written notices to City shall be sent to:
Joan M. Malloy Kristopher J. Kokotaylo,
City Manager City Attorney
City of Union City City of Union City
34009 Alvarado Niles Rd. with a copy to 34009 Alvarado Niles Rd.
Union City, CA 94587 Union City, CA 94587
10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. _________________________________________
Seal and Signature of Registered Professional with
report/design responsibility.
10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A, B, and C, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral.
Exhibit A Scope of Services
Exhibit B Compensation Schedule
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
Exhibit C Public Works Requirements
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
The Parties have executed this Agreement as of the Effective Date.
CITY OF UNION CITY CAL-WEST LIGHTING & SIGNAL
MAINTENANCE, INC.
______________________________ ______________________________
JOAN MALLOY, CITY MANAGER CRAIG GEIS, PRESIDENT
ATTEST:
______________________________
THAI NAM N. PHAM, CITY CLERK
APPROVED AS TO FORM:
_________________________________
KRISTOPHER J. KOKOTAYLO
CITY ATTORNEY
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
EXHIBIT A
SCOPE OF SERVICES
The purpose of this contract is to maintain the City’s streetlights, safety lighting, public lighting, and similar facilities to operate in the manner that they were originally intended, or as later modified, to provide safety lighting and devices on the City’s streets and public facilities. In general, the work to be performed consists of providing routine maintenance of streetlights, safety lighting systems and other maintenance as needed, as well as emergency maintenance and other work as directed within the City.
5.1 MAINTENANCE
ROUTINE MONTHLY MAINTENANCE includes:
• Replacement of lamps, photocells, starters (ignitors), fuses, ballasts, timeclocks, etc. • Installation of reflective numbers if numbers are missing • Minor electrical wire troubleshooting, wire splicing, repairs within junction-boxes • Replace integral parts that have become inoperative from normal deterioration Routine street-lighting maintenance is under the assumption street-light outages or malfunctions by normal equipment failure is due to normal deterioration.
Items not listed in “Routine Monthly Maintenance” are “Monthly Maintenance Extras”.
MONTHLY MAINTENANCE EXTRAS include:
• Emergency service calls for repairs/replacements such as but not limited to street-light pole knockdowns
• Work performed or materials used outside of routine maintenance or malfunctions caused by vandalism, lighting strike, earthquake, or other Acts of God. • The correction, repair, or replacement of materials or equipment installed or modified by another party.
• As-needed special work such as sports field lighting work. • Concrete and foundation repairs.
Items not listed in “Routine Monthly Maintenance” or “Monthly Maintenance Extras” shall be billed as “Special Projects”.
SPECIAL PROJECTS may include but are not limited to:
• Streetlighting upgrades as designated by City engineers. • Replacement of road safety equipment (within the ability of the Contractor). • Investigative work under the direction of the City for supporting city projects. • Installation of streetlights for new streets.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
The Contractor shall ensure that all equipment and systems are maintained and in an operable and safe condition. Furthermore, the Contractor shall provide and maintain emergency contact to respond to all emergency calls in a timely manner on a 24-hour, 365-day basis, including all holidays. The Contractor shall provide replacement or service of all lighting components with like or better components, provide maintenance and submittal of monthly reports of all work performed, proper disposal of all materials, and respond to all reported failed lighting on all City streets and facilities covered under this service. The Contractor shall maintain a City inventory of all streetlights, poles and other equipment serviced and produce records upon request. The Contractor shall also support the City as needed for systems, equipment, or proposed lighting upgrades.
The selected Contractor shall furnish all tools, equipment, workshop facilities, transportation, labor, parts, and materials and perform all work necessary to maintain in good quality and operation all streetlights and public lighting within the City. All work performed or equipment and parts supplied by the Contractor shall be subject to inspection and approval of the Public Works Director/City Engineer or his/her designee. Failure to pass inspection on any maintenance, repair, or service item shall result in non-payment for that item until such time that the Contractor can present the item to the City in an acceptable form.
5.2 RESPONSE TIMES
EMERGENCY RESPONSE (one (1) hour maximum response time) This item is considered to be an immediate safety concern. When notified by the City to respond to an emergency situation, the Contractor shall be at the site in one (1) hour or less from the time of notification. Examples of a situation that would require an emergency response include but are not limited to a hazardous streetlight knockdown, block of streetlights, or other repairs designated for emergency response by the City. The Contractor shall provide a twenty-four (24) hour per day emergency contact phone number which shall be made available to the Public Works Department and the City of Union City Police Department. Responsive maintenance and emergency repairs to damaged or malfunctioning streetlights and exterior public facilities lights shall be performed by the Contractor at the direction of the Public Works Director or designee. Work in this category is considered to be a safety concern.
STANDARD RESPONSE
This item is considered important but not an immediate safety concern. Maintenance and repair requests made on a regular basis shall be responded to within three (3) calendar days of notification. In no event will regular response work be considered overtime without prior approval of the Public Works Director or his/her designee. An example of work that would require a regular response includes but is not limited to streetlight outages. The Contractor’s commitment to outage troubleshooting response and repair will be taken into consideration.
SCHEDULED/AS-REQUIRED MAINTENANCE
Maintenance and repair requests made by the City that are not critical, or the work involved is of such a nature as to require advance scheduling, shall be completed on an “As-Required” basis at a schedule that is mutually agreed upon. Work authorization of this type shall include but not be Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
limited to major equipment repair/replacement, permanent replacement of knockdowns, major rewiring, and general maintenance of streetlights, and safety lighting systems.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
EXHIBIT B
COMPENSATION SCHEDULE
The proposal prices are to include and cover the furnishing of all labor, materials, equipment, fees, taxes, incidentals, emergency call availability, status reporting, and overhead necessary to perform the work described in the Request for Proposals. The proposer affirms that in the event they are selected as the successful proposer the Contractor assures that all work will be performed in the specified manner and under the terms and conditions specified at the prices listed below:
Troubleshoot and Repair Street Lighting Outages: $100.00 each light. Contractor commits to service within 48 hours or less for each reported outage (i.e. 24 hours, 48 hours, etc.) Mark-Up on Materials for Work: Contractor will charge City the actual invoice of materials used for the additional work plus a fee of 10 percent (%).
Day-Time Minimum Charge: Labor and Equipment charges for daytime calls for work, such as Monthly Maintenance Extras, shall be billed in 15 min (i.e. 15 min, 30 min, 1 hour, etc.) increments.
Emergency Calls (evening hours): Labor and Equipment charges for Evening calls in evening hours shall be billed for 2 hours (i.e. 1 hour, 2 hours, etc.) minimum. Evening calls, after the minimum, shall be billed in 15 min (i.e. 15 min, 30 min, 1 hour, etc.) increments. Contractor commits to emergency response service within 48 hours, etc.) hours or less of a reported incident (i.e. 24 hours, 48 hours, etc.)
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
EXHIBIT C
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the services described in Exhibit A shall constitute a legal day’s work under this contract.
B. In accordance with California Labor Code Section 1811, the time of service of any worker employed in performance of the services described in Exhibit A is limited to eight hours during any one calendar day, and forty hours during any one calendar week, except in accordance with California Labor Code Section 1815, which provides that work in excess of eight hours during any one calendar day and forty hours during any one calendar week is permitted upon compensation for all hours worked in excess of eight hours during any one calendar day and forty hours during any one calendar week at not less than one-and-one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the City $25 for each worker employed in the performance of the services described in Exhibit A for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day, or more than 40 hours in any one calendar week, in violation of the provisions of California Labor Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the City has determined the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the City Public Works Office and shall be made available on request. The Consultant and subcontractors engaged in the performance of the services described in Exhibit A shall pay no less than these rates to all persons engaged in performance of the services described in Exhibit A.
B. In accordance with Labor Code Section 1775, the Consultant and any subcontractors engaged in performance of the services described in Exhibit A shall comply Labor Code Section 1775, which establishes a penalty of up to $50 per day for each worker engaged in the performance of the services described in Exhibit A that the Consultant or any subcontractor pays less than the specified prevailing wage. The amount of such penalty shall be determined by the Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the previous record of the Consultant or subcontractor in meeting applicable prevailing wage obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their obligations under the California Labor Code. The Consultant or subcontractor shall pay the difference between the prevailing wage rates and the amount paid to each worker for each Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
calendar day or portion thereof for which each worker was paid less than the prevailing wage rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable for any penalties therefore unless the Consultant had knowledge of that failure or unless the Consultant fails to comply with all of the following requirements:
1. The contract executed between the Consultant and the subcontractor for the performance of part of the services described in Exhibit A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor’s certified payroll records.
3. Upon becoming aware of a subcontractor’s failure to pay the specified prevailing rate of wages, the Consultant shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for performance of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor, the Consultant shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages for employees engaged in the performance of the services described in Exhibit A and any amounts due pursuant to California Labor Code Section 1813.
C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor engaged in performance of the services described in Exhibit A shall keep accurate payroll records showing the name, address, social security number, work, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed in performance of the services described in Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by the employer’s employees on the public works project.
The payroll records required pursuant to California Labor Code Section 1776 shall be certified and shall be available for inspection by the Owner and its authorized representatives, the Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the Department of Industrial Relations and shall otherwise be available for inspection in accordance with California Labor Code Section 1776.
D. In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the Consultant and any subcontractors engaged in performance of the services described in Exhibit A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5 governing employment and payment of apprentices on public works contracts.
Consulting Services Agreement between
City of Union City and Cal-West Lighting & Signal Maintenance, Inc.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance of the services described in Exhibit A to employ for the services described in Exhibit A any person in a trade or occupation (except executive, supervisory, administrative, clerical, or other non manual workers as such) for which no minimum wage rate has been determined by the Director of the Department of Industrial Relations, the Contractor shall pay the minimum rate of wages specified therein for the classification which most nearly corresponds to services described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be applicable as a minimum for such trade or occupation from the time of the initial employment of the person affected and during the continuance of such employment.
DIR REGISTRATION
Consultant shall be currently registered with the Department of Industrial Relations and qualified to perform public work consistent with Labor Code section 1725.5, except in limited circumstances as set forth in Labor Code section 1771.1. 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 California Labor Code Section 1725.5. Consultant agrees, in accordance with Section 1771.4 of the California Labor Code, that if the work under this Agreement qualifies as public work, it is subject to compliance monitoring and enforcement by the Department of Industrial Relations.