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City of Morgan Hill - Cost Sharing Agreement for Schaaf & Wheeler 08156 COST SHARING AGREEMENT BETWEEN THE CITY OF GILROY. CALIFORNIA AND THE CITY OF MORGAN HILL. CALIFORNIA FOR THE COMPLETION OF A STUDY BY SCHAAF AND WHEELER This Agreement is made and entered into this 13!~ay of\) un e , 2008, by and between the City of Gilroy, California, a chartered municipal corporation of the State of California ("Gilroy"), and the City of Morgan Hill, California, a general law municipal corporation of the State of California ("Morgan Hill"), collectively referred to herein as the "Parties." RECITALS WHEREAS, Gilroy and Morgan Hill are in the process of negotiating an updated agreement to share costs for maintenance of the existing joint sewer trunk as well as the 33-Inch Main the 42-Inch Main and all other planned upgrades to the existing joint sewer trunk (the "Maintenance Agreement"); and WHEREAS, the parties have determined that it is necessary to have an engmeenng consultant review the Maintenance Agreement to identify points of concern or needed clarifications therein; and; WHEREAS, the parties desire to have the Schaaf and Wheeler conduct such review their Maintenance Agreement and supporting documents; and WHEREAS, the parties have decided to split the costs of the consultant agreement with Schaaf and Wheeler ("Consultant Agreement"). NOW THEREFORE, IN CONSIDERA nON OF THE FOREGOING RECITALS AND OF THE MUTUAL COVENANTS AND CONDITIONS CONTAINED HEREIN, THE PARTIES HEREBY AGREE AS FOLLOWS: AGREEMENT 1. Cost Sharine: for Consultant Ae:reement. The Parties hereby agree as follows: 1. Gilroy will enter into the Consultant Agreement with Schaaf and Wheeler, which Consultant Agreement shall be substantially similar to that attached hereto as Exhibit A. -1 2. Morgan Hill shall be responsible for fifty percent (50%) of the costs incurred by Gilroy pursuant to such Consultant Agreement not to exceed eight thousand dollars ($8,000.00). Morgan Hill shall pay its share of these costs within thirty (30) days of receiving a bill therefor from Gilroy. All requests for reimbursement and payments shall be sent to the addresses for notice set forth in Section 3, below. 2. Indemnification. Pursuant to Government Code Section 895.4, each of the Parties hereto shall fully indemnify, defend with counsel reasonably acceptable to the other Party and hold the other Party, its 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 the negligent acts or omissions or willful misconduct of the indemnifying Party, its officers, employees, contractors, subcontractors, material suppliers or agents, under, or in connection with, any work, authority or jurisdiction delegated to such Party under this Agreement. Neither 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 Party hereto, its officers, employees, contractors, subcontractors, material suppliers or agents, under or in connection with any work, authority or jurisdiction delegated to such other Party under this Agreement. 3. Notices. Notices given under this Agreement may be hand delivered or delivered by facsimile, with an additional copy sent by first class mail, postage prepaid, and addressed to the appropriate party at the following addresses: To Gilroy: 7351 Rosanna Street Gilroy, CA 95020 Attn: City Administrator Facsimile: (408) 846-0429 To Morgan Hill: 17555 Peak Avenue Morgan Hill, CA 95037 Attn: City Manager Facsimile: (408) 779-6282 -2 4. Additional Provisions. The Parties further agree as follows: (a) One or both Parties' waiver of any term, condition or covenant of this Agreement shall not be construed as a waiver of any other term, condition or covenant of this Agreement. (b) This Agreement contains the entire Agreement between the Parties relating to the Consultant Agreement. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. (c) The Exhibit attached to this Agreement IS a part of this Agreement and are incorporated into this Agreement by reference. (d) This Agreement shall be governed and construed in accordance with the laws of the State of California. (e) 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 document. (f) All amendments to this Agreement must be approved in writing by both Parties to be effective. (g) The Parties agree that they shall endeavor to resolve any dispute about this Agreement in good faith. The Parties further agree that should such dispute remain unresolved, they shall engage in mediation and, if no agreement between the Parties can be reached through mediation, by binding arbitration to resolve such disputes, instead of resortingJo court action. (h) Gilroy's contact for issues related to this Agreement and/or the Consultant Agreement shall be the City Engineer, or his or her designee. Morgan Hill's contact related to this Agreement and/or the Consultant Agreement shall be its Public Works Director, or his or her designee. (i) Time is of the essence of each and every term, provision and obligation hereof. (j) This Agreement is not intended to, and shall not, be construed to create any third party beneficiary rights in any person or entity who is not a party, unless expressly provided herein. (k) Each party hereto declares and represents that in entering into this Agreement, it has relied and is relying solely upon its own judgment, belief, and knowledge of the nature, extent, effect, and consequence relating thereto. Each party further declares and represents that this Agreement is made without reliance upon any statement or representation not contained herein of any other party or any representative, agent, or attorney of the other party. The parties are aware -3 that they have the right to be advised by counsel with respect to the negotiations, terms, and conditions of this Agreement and the decision of whether or not to seek the advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each of the parties. Accordingly, no party shall be deemed to have been the drafter hereof, and the principle of law set forth in Civil Code ~ 1654 that contracts are construed against the drafter shall not apply. IN WITNESS WHEREOF, THE PARTIES HAVE ENTERED INTO THIS AGREEMENT AS OF THE DATE FIRST ABOVE WRITTEN. "Gilroy" "Morgan Hill" City of Morgan Hill, a California general law municipal corporation ~ City Manager, Morgan Hill ATTEST: ~ "\)E.\'U T'l ~i'f\l CU:.I<i'- City Clerk, Morgan Hill ('j-~ (f ,e-&.~ Linda A. Callon City Attorney, Gilroy APPROVED AS TO FORM: (~kL-r~ J tri~tkern ~/ Attorney, Morgan Hill APPROVED AS TO FORM: -4 EXHIBIT A - Proposed Consultant Agreement -5 AGREEMENT FOR SERVICES This AGREEMENT made this _ day of " 2008, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: Schaaf & Wheeler, having a principal place of business at 100 North Winchester Blvd., Suite 200, Santa Clara, California 95050 ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on _ and will continue in effect through _ unless terminated in accordance with the provisions of Article 7 of this Agreement. ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULT ANT shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT A. Specific Services CONSULTANT agrees to: perform the services ("Services") as outlined in Exhibit "A" ("Specific Provisions") and Exhibit "B" ("Scope of Services") within the time periods described in Exhibit "D" ("Milestone Schedule"). B. Method of Performing Services CONSULTANT shall determine the method, details and means of performing the above- described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT'S services. C. Employment of Assistants CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as CONSULT ANT deems necessary to perform the services required of CONSULT ANT by this -1- Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the Services at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT'S serVIces. ARTICLE 4. COMPENSATION A. Consideration In consideration for the Services to be performed by CONSULTANT, CITY shall pay to CONSULTANT at the rate set forth in Exhibit "C" ("Rate Schedule"). In no event, however shall the' total compensation paid to CONSULTANT exceed Sixteen Thousand and Noll 00 Dollars ($16,000.00). B. Invoices CONSULTANT shall submit invoices for all services rendered. Invoices shall be sent to CITY at the address for notices set forth in Section I of Exhibit A C. Payment No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A", Section IV) incurred during the preceding period. CITY shall pay CONSULTANT within thirty (30) days after receipt of such invoice. If CITY objects to all or any portion of any invoice sent to CITY, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of the Services, including but not limited to, all costs of equipment used or provided by CONSULT ANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONSULTANT in performing the Services, except for those expenses constituting "direct expenses" referenced on Exhibit "A." -2- ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the Services at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONSULTANT agrees to provide workers' compensation insurance for CONSULTANT'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising out of any injury, disability, or death of any of CONSULTANT'S employees. C. Indemnification of Liability, Duty to Defend (1) Professional Liability To the fullest extent permitted by law, CONSULTANT shall defend through counsel approved by CITY, indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. (2) Other Liability To the fullest extent permitted by law, CONSULTANT shall defend through counsel approved by CITY, indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence and aggregate. As a condition precedent to CITY'S -3- obligations under this Agreement, CONSULTANT shall furnish evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONSULTANT is not CITY'S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: · CITY will not withhold FICA (Social Security) from CONSULTANT'S payments; · CITY will not make state or federal unemployment insurance contributions on CONSULTANT'S behalf; . CITY will not withhold state or federal income tax from payment to CONSULTANT; . CITY will not make disability insurance contributions on behalf of CONSULTANT; . CITY will not obtain workers' compensation insurance on behalf of CONSULTANT. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement. -4- ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of Consultant's Business! Death of Consultant. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit A, Subsection V.I., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. B. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONSULTANT'S failure to professionally and!or timely perform any of the services contemplated by this Agreement. 2. CONSULTANT'S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work satisfactorily completed through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C" which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONSULTANT'S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY may have, CONSULTANT shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONSULT ANT for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. -5- D. Transition after Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULT ANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT's duties by any new consultant hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ("the Act") in its current form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation attorneys' fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed -6- in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law This Agreement will be governed by and construed in accordance with the laws of the State of California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A", Section V.1. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. -7- J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONSULTANT agrees that waiver by CITY of anyone 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. 'Executed at Gilroy, California, on the date and year first above written. CONSUL TANT: CITY: SCHAAF & WHEELER CITY OF GILROY By: Name: Title: By: Name: Anna Jatczak Title: Interim City Administrator Social Security or Taxpayer Identification Number 77-0061375 Approved as to Form ATTEST: Linda A. Callon City Attorney Shawna Freels City Clerk -8- EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER CONSULTANT shall provide the services indicated on the attached Exhibit "B", Scope of Services ("Services"). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign David Foote, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONSULT ANT shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to satisfactorily complete the Services required herein. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written "Notice to Proceed", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Shari Carlet shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided in the Section V.I. ("Notices") of this Exhibit "A". B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has satisfactorily completed all of the Services, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has satisfactorily completed all of the Services and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not satisfactorily completed all of such Services, CITY shall so inform CONSULTANT within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "D". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. -1- Direct expenses are charges and fees not included in Exhibit "B". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. CONSULTANT'S SERVICES TO BE APPROVED BY A REGISTERED PROFESSIONAL ENGINEER All reports, costs estimates, plans and other documents which may be submitted or furnished by CONSULT ANT shall be approved and signed by a qualified registered professional engineer in the State of California. 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 professional engineer responsible for their preparation. B. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT'S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. C. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. The CITY'S review, acceptance or payment for any of the Services shall not be construed 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, and CONSULTANT shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONSULTANT'S negligent performance of any of the services furnished under this Agreement. -2- D. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. E. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral 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 the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT'S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. F. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. G. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports 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 subject to Section V.E of this Exhibit "A". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. -3- H. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed 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 hereunder for any cause whatsoever. I. NOTICES. Notices are to be sent as follows: CITY: Rick Smelser, City Engineer City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: David Foote, Project Manager Schaaf & Wheeler 100 North Winchester Blvd., Suite 200 Santa Clara, CA 95050 J. FEDERAL FUNDING REQUIREMENTS. D If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.J. apply. ~ If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.J. do not apply. 1. DBE Program CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONSULTANT warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONSULTANT, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or -4- consideration, or otherwise recover, the full amount of such fee, commISSIOn, percentage, brokerage fee, gift or contingent fee. -5- EXHIBIT "B" SCOPE OF SERVICES IVPAPP1757320.1 040108-04706091 -1- W:iZr~I-;,.;1'>- -:. ....i-Z',~~ ~. l' ~")!'I".o~'l!'rfl~~1. ~r ,,, 'If~ tt ~~ ,,"hi '" .~' ~\ ~,..,. f""~ " ~.r:.. '/ .~;;.:,;~ ,-,'" ~;,:r; (~, r 'E~?'-6"'_~'{" - "......,.,..-'......01."....... ...._ m;l.l~(';~ ')Flrl. ....~'/":'. Y,,-I. .h~ cf~~lf..'!.~ \)\;?f....'1:J "';f~ "~)~r'I1i.F:;1\": '<1~ ,{-fr, ,\\J:?.~i1.;;... . ,. .., t, .l"'l,.~,~:.~;:-'--<."1._..:_':..:.'i..I~" -:-'t~ t.~u~6:.,. ,~..!~~:-11:-',(J. ~~ )"~lf u'f{f#t,,'\ .' - (.'-,.:.!., .;.::.~.,,',"~; ~:;: ":. ~ ,t(' ~('- -", ' .'., >-', '"'",,''c<,''' '':'" 'i ~- ...~ th..~. , ,- ,'"' c. ,J .,'" ~----- " {{ '-""HJ"~ ,'J.~. If ,."i:.'~H.*~--,.~l.(~...\)~J;.." -t,.;;;,..; ~"",i' ,'-"q .\.,.J,\.;;lli,,"'l~~ 1",. ~ '" l't , 7,.".."....,._>" ", ,'....-,:, ~._' ',< ''',,"t.' "II(,,,;~~f"'~>i\,",!~ If-''''d-''''llc ~',.-" ,f. -. " J WM-r;, , . ,.., ~"'.' lJ/ "" '-'" .~ (" ~.'" ;J..f,~...t;{J.~I~)"~<\",:}~t,'-' .1r~";';lJ ,V -J(" ,'.' _. ' '!.///.///r. 'I" .l~\~ ......t;cgo~ ~' I ,. , '..). " . '1~')','" "'I' I i ~i''';:' '., jf&! -'"" :'::f./ . .'..; \-, :'{r . ; 'I <.'Y.>IMO../.......'IlJlI f., '0' '. " ." . .; ',,,' c ""~';2.g&'i . "," :",cr' ".""m~"'" " "") - ""i'~'~.l '0 .' 11:";. .c, 'N~.'. ,(\- -,,(\l'. 'J '&-'" S-s; ""),f. ...'t'!!'.!_~"';",~ . : . < ,. r!:.: !, 10 ~~~~.,,___.~~\i,:1o.o. ,..., :;;;,;u.; ~ ~..o1.j....~ ~ .........-.r.~~~J..:.>;,-,,'t:Ooo...,l.;:..,~~ Introduction Schaaf & Wheeler proposes to provide engineering consulting services to the South County Regional Wastewater Authority (SCRWA), a joint powers agency, to review the Maintenance Agreement between SCRW A and the City of Gilroy and the City of Morgan Hill, regarding maintenance of the joint sewer trunk. Scope and Approach Task 1- Document Review Schaaf & Wheeler will review the Agreement and pertinent supporting documents. This includes one meeting with SCRW A staff to identify supporting documents and acquire an overview of issues and concerns. Task 2 -Initial Responses and/or Further Analysis Identification Schaaf & Wheeler will review the Agreement and documents in detail. Examples of the clarification that we envision include: 1. Better definition of the term "Joint Sewer Trunk" and relating that term to the map, 2. Better definition of the obligations of the parties under Section 2. 3. Condensation of the language in Section 2.C -- making it more concise and easier to understand. Also, items such as repair, maintenance, power, chemicals, testing/monitoring/calibrating, operating, regulatory compliance activities and permit activities should all be spelled out in this Section, as costs to be shared. 4. Expansion and clarification of the language in Section 4, regarding how costs are to be shared and also the derivation of the cost-sharing percentages that are shown on the draft Agreement, Exhibit A. 5. Addition of language in Section 6.A, about regularly calibrating the flow meter, and what is done if it is found to be misreading. 6. Addition of language in Section 6.B, about what is to be done if capacity is exceeded. Schaaf & Wheeler will prepare a summary of review comments. Proposed changes to the Agreement will be included on the Agreement document, tracked in MS Word. Task 3 - Coordination Meeting A meeting will be held with SCRW A staff. Task 4 - Optional Assistance If further analysis or investigation is required beyond this scope and if the anticipated work can be provided by Schaaf & Wheeler, then Schaaf & Wheeler will identify and describe the additional tasks and provide a corresponding scope and fee. 3/13/2008 1 Schaaf 8? Wheeler CONSULTING CIVIL ENGINEERS . - 'If r:, "', -~: - ~I I ~ ~ -;-r '_ " . " , ~ ., .~~ -->;;, < l~{( J~<\0.V:l;\ __, ' '-ir-I;--.~ . - ~ ' T' ~ -;~~ , I.,,-<~Jr -~\~\',",':r 'f)(l...',n'h. I~;: ~ ;Y ( . ~ ~ {,.lli 01 \'0" .^-... /111 r ~', - ~. _H" ;.~AV.~\fle..1tI~~_~l.j)(lH'/t;1 ~~:J.w'\?i.:.}r"I~\::~)IA.! j~<!/\":~'\~ \t~, < _. - "'~..~'~ - __r...."....t~~. -'. .10'___ .:......l_..:._l C......,........_~_ ....:,;. .....__.... ...,_................,,_:;.__... _____.u ......... "'.~~....~_~_ _~.. .n~_..-.........,"lIl~~.... _.-.:f,. .~..:J;... Fee Schaaf & Wheeler will provide engineering services on a time and materials basis. The fee for Tasks lthru 3 in this proposals ha 11 not exceed $16,000. Professional Expertise Schaaf & Wheeler plans to involve the expertise of three engineering professionals in this maintenance agreement review. David A. Foote, PE, will provide primary review. Peder C. Jorgensen, PE, is a water and wastewater systems engineer who managed the trunk sewer engineering and implementation project. Peder will contribute his specific knowledge of the sewer trunk. Robert Jaques, PE, is an independent consultant who will help to clarify the agreement language. Bob was formerly with Monterey Regional Water Pollution Control Authority (MRWPCA). He authored lift station maintenance agreements between MRWPCA and participating cities, as well as an inter-agency O&M agreement between MRWPCA and Monterey County Water Resources Agency. About Schaaf & Wheeler Schaaf & Wheeler has its headquarters in Santa Clara and regional offices in San Francisco, Sacramento and Monterey County. Founded in 1985, the firm employs 27 people - 5 principals, 18 engineers and 4 support people - a small business. Even so, Schaaf & Wheeler ranks #12 in the San Jose/Silicon Valley Business Journal list of Top 20 Engineering firms in the Valley (February 15, 2008) and is the only firm on this list to focus solely on water issues. Areas of concentration are: · Water supply master planning, storage, collection and distribution solutions; · Wastewater and recycled water systems master planning, customer retrofits and reclamation feasibility studies; · Hydrologic and hydraulic analyses induding site evaluations and modeling; · Flood control and drainage services, including channel design and restoration, detention / retention / quality basins, and stormdrain design; · Restoration and enhancement services, including watershed assessments and rehabilitation, riparian restoration, erosion and sediment control. 3/13/2008 2 Schaaf l!? Wheeler CONSULTING CIVIL ENGINEERS EXHIBIT "C" RATE SCHEDULE WPAPP1757320.1 040108-04706091 -1- Schaaf & Wheeler CONSULTING CIVIL ENGINEERS James R. Schaaf, PE Kirk R. Wheeler, PE David A. Foote, PE I'eder C. Jorgensen, PE Charles D. Anderson, PE 100 N. Winchester Blvd., Suite 200 Santa Clara, CA 95050-6566 408-246-4848 FAX 408-246-5624 Offices Santa Clara Sacnunento San Francisco Monterey Bay Hourly Charge Rate Schedule Personnel Chare:es Charges for personnel engaged in professional and/or technical work are based on the actual hours directly chargeable to the project. Current rates by classification are listed below: Classification Ratelhr Classification Ratelhr Classification Ratelhr Project Manager $193 Project Engineer $181 Senior Engineer $164 Associate Engineer $147 Assistant Engineer $129 Junior Engineer $116 Designer $116 Technician $110 Engineering Trainee $ 80 Construction Manager $181 Resident Engineer $164 Project Scientist $178 Senior Scientist $153 Associate Scientist $132 Assistant Scientist $107 Scientist Trainee $ 74 Asst. Resident Engineer $129 Principal time is $245 per hour and is charged only for work done in preparation for litigation and other very high level-of-expertise assignments. Court or deposition time as an expert witness is charged at $325 per hour with a minimum of four hours per day. Materials and Services Subcontractors, special equipment, outside reproduction, data processing, computer services, etc., will be charged at 1.10 times cost. These rates are subject to revision semi-annually, Effective 1/1/08 O:\Charge Rates 2008\Charge Rates and Std PrOY Jan. 2008.doc EXHIBIT "D" MILESTONE SCHEDULE IVPAPP1757320.1 040108-04706091 -1- Scope of Work/Schedule For Review of Maintenance Agreement March 26, 2008 Schaaf & Wheeler proposes to provide consulting services to South County Regional Wastewater Authority, a joint powers agency, ("SCRW A") to review the AGREEMENT between the Cities of Gilroy and Morgan Hill and SCR W A for maintenance of the joint sewer trunk. If further analysis or investigation is required beyond the scope for certain issues, they will be identified along with an additional scope and fee if the anticipated work can be provided by Schaaf & Wheeler. Schaaf & Wheeler will provide the following engineering services on a time and materials basis. The max i mum fee for Tasks 1 th ru 3 shall not exceed $16,000. Detail Scope Task 1 - Document Review Schaaf & Wheeler will review the Agreement and pertinent supporting documents. This includes one meeting with SCRW A staff to identify supporting documents and obtain overview of issues and concerns. Estimated time to complete: Complete review, I-week after meeting with SCWRA staff and receipt of supporting documents. Task 2 -Initial Responses and/or Further Analysis Identification Schaaf & Wheeler will prepare summary of review comments. Any proposed changes to the Agreement will be included on the Agreement, tracked in Word. Estimated time to complete: Submit draft summary of review comments and tracked proposed changes to the Agreement, 4-weeks after completion of Task 1. Task 3 - Coordination Meeting A meeting will be held with SCRW A staff. Estimated time to complete: Finalize changes to the Agreement, 2-weeks after Coordination Meeting. SCRW AScopeFee _Milestones _ 3 _2008 (2) Task 4 - Optional Assistance Comments which require further work will be identified along with a scope and fee if the anticipated work can be provided by Schaaf & Wheeler. SCRWAScopeFee_Milestones_3_2008 (2) 2