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Hexagon Transportation - 2016 AgreementAGREEMENT FOR SERVICES (For contracts over $5,000 - CONSULTANT) This AGREEMENT made this 25th day of April, 2016, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: Hexagon Transportation Consultants, Inc., having a principal place of business at 8070 Santa Teresa Blvd., Suite 230, GIlroy, CA 95020. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on April 25, 2016 and will continue in effect through the completion of the project unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. :S Initial 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. CONSULTANT 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 as outlined in Exhibit "A" ( "Specific Provisions ") and Exhibit "B" ( "Scope of Services "), within the time periods described in Exhibit "C" ( "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. 4835 - 2267 -03610 LAC104706083 C. Employment of Assistants CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this 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 required by this Agreement 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 agrees to pay CONSULTANT the amounts set forth in Exhibit "D" ( "Payment Schedule "). In no event however shall the total compensation paid to CONSULTANT exceed $17,000.00. B. Invoices CONSULTANT shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit "D ". 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 M incurred during the preceding period. If CITY objects to all or any portion of any invoice, 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 services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, 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 4835 - 2267 -0361v1 LAM04706083 responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement 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 reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONSULTANT'S employees. C. Indemnification of Liability, Duty to Defend 1. As to professional liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), 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. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), 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, 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 on a per occurrence basis, 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, 4835 - 2267 -0361 v1 _3 _ LAC104706083 including the loss of use thereof, and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements set forth below. Professional Liability Insurance written on a claims made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non - renewed, and not replaced with another claims -made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning of the contract work, CONSULTANT must purchase so called "extended reporting" or "tail" coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY'S obligations under this Agreement, CONSULTANT shall furnish written 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 via a specific endorsement) 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. 4835 - 2267 -0361v1 LAC104706083 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. 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.H., 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 completed in accordance with the terms of this Agreement 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 4835- 2267 -0361v1 _5_ LAC104706083 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 CONSULTANT 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. 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. CONSULTANT 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 reasonable 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. 4835 - 2267 -0361 v1 -6_ LAC \04706083 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 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. 4835 - 2267 -0361v1 LAC104706083 H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, 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.H. 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. 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 any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONSULTANT: Hexagon Transportation Consultants, Inc By: �, ) 10. Name: Jeffrey A Elia, PE Title: Prinicpal Associate Social Security or Taxpayer Identification Number 77- 0478675 4835 - 2267 -03610 -g- LAC104706083 CITY: CITY OF GILROY By: ' Name: Gabriel A. Gonzalez Title: City Administrator Approved as to Form City Attorney 4835 - 2267 -0361v1 _9_ LACk04706083 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 Jeffrey A Elia, P.E., 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, CONSULTANT shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. 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, Sue O'Strander 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.H. ( "Notices ") of this Exhibit "A ". B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has completed all of the Services in accordance with the terms of this Agreement, 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 completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not completed all of such Services as required by this Agreement, 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 "C ". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. 4835 - 2267 -0361v1 LAC104706083 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. 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. B. 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. CONSULTANT shall not be responsible for the accuracy of any project or technical information provided by the CITY. 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. C. 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. 4835 - 2267 -03610 _2- LAC104706083 D. 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. E. 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. F. 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.D 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. However, CONSULTANT shall not be responsible for, and City shall indemnify CONSULTANT from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. 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. 4835 - 2267 -03610 -3- LAM04706083 H. NOTICES. Notices are to be sent as follows: CITY: Sue O'Strander City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Jeffrey A. Elia, P.E. Hexagon Transportation COnsultants, Inc. 8070 Santa Teresa Blvd., Suite 230 Gilroy, CA 95020 I. FEDERAL FUNDING REQUIREMENTS. ❑ If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. 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.I. 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 consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 4835 - 2267 -0361 v1 -4- LAC104706083 EXHIBIT "B" SCOPE OF SERVICES Attached - Hexagon Transportation Consultants, Inc. letter dated April 12, 2016, Proposal to Prepare a Traffic Feasibility Study for the Performance Food Group Project. 4835 - 2267 -0361 v1 -1- LAC104706083 EXHIBIT "C" MILESTONE SCHEDULE Attached - Hexagon Transportation Consultants, Inc. letter dated April 12, 2016, Proposal to Prepare a Traffic Feasibility Study for the Performance Food Group Project. 4835 - 2267 -0361 v1 -1- LAC104706083 EXHIBIT "D" PAYMENT SCHEDULE Attached - Hexagon Transportation Consultants, Inc. letter dated April 12, 2016, Proposal to Prepare a Traffic Feasibility Study for the Performance Food Group Project. 4835 - 2267 -0361 u1 LAC104706083 � NIXA60N TPANSPOPTATION CONSULTANTS, INC. April 12, 2016 Ms. Sue O'Strander City of Gilroy Community Development Department 7351 Rosanna Street Gilroy, California 95020 Subject: Proposal to Prepare a Traffic Feasibility Study for the Performance Food Group Project Dear Ms. O'Strander: Hexagon Transportation Consultants, Inc. is pleased to submit this proposal to prepare a traffic feasibility study for the proposed Performance Food Group project located at 5480 Monterey Road. Project Understanding The proposed project is located on the east side of Monterey Road about 1,600 feet south of Travel Park Circle, in the south part of Gilroy. The project, as proposed, would consist of a 350,000 square -foot (s.f.) truck distribution facility at full build -out, with approximately 47 truck dock positions. The project would be built in phases with the initial phase consisting of a 180,000 s.f. distribution facility, with approximately 30 truck docks. The purpose of the feasibility study is for the City and the project applicant to gain a better understanding of potentially significant traffic impacts and traffic constraints in the project area. The study will be based on readily available information and traffic data. No new data will be collected. The study will include an evaluation of trips to be added to the roadway system by the proposed development. Intersection and freeway level of service calculations will be performed at locations where the proposed development is projected to add a significant number of new trips. The intersection and freeway segment level of service analysis will be based on the same methodologies used for all traffic studies in Gilroy that are prepared for CEQA purposes. Our findings and recommendations will be summarized in a draft memo report. This proposal does not include the completion of a comprehensive traffic impact analysis that may eventually be required as part of an Environmental Impact Report (EIR) for the proposed project. Scope of Work Study Intersections The feasibility study will evaluate traffic conditions during the weekday AM and PM peak hours for the following study intersections: 1. Camino Arroyo and Pacheco Pass Highway — regional traffic traveling to /from the east and 1 -5. 2. US 101 NB off -ramp and Pacheco Pass Highway — regional traffic traveling to /from the east and I -5. 3. US 101 SB ramps and 10th Street — regional traffic traveling to /from the east and I -5. 4. Chestnut Street and 10th Street — local traffic. 5. Chestnut Street and Luchessa Avenue — local traffic. 6. Monterey Road and Luchessa Avenue — local traffic. 7. US 101 SB ramps and Monterey Road — regional and local traffic. 8. Monterey Road US 101 NB ramps/Travel Park Circle — regional and local traffic. The list of intersections was selected to provide a conservative analysis of potential project impacts. Beyond these intersections, we expect the project effect to be minimal. Our scope and fee assume that no additional study intersections will need to be evaluated and no new traffic data will be collected. 8070 Santa Teresa Boulevard, Suite 230 • Gilroy, California 95020 • phone 408.846.7410 • fax 408.846.7418 • www.hextrans.com Ms. sue Ostrander April 12, 2016 Page 2 of 4 Study Freeway Segments Per Congestion Management Program (CMP) guidelines, the traffic study will include an analysis to document the determination whether a freeway level of service analysis is required. If such an analysis is necessary, then the appropriate freeway segments will be analyzed using the latest available CMP freeway data and the CMP's freeway analysis methodology. Study Scenarios The key transportation facilities will be evaluated for the following study scenarios: • Existing Conditions: Existing (readily available) count data. • Background Conditions: Existing + approved developments. • Background + Project Conditions: Existing + approved developments + project trips. • Cumulative without Project Conditions: Existing + approved developments + proposed developments. • Cumulative with Project Conditions: Existing + approved developments + project trips + proposed developments. Study Tasks The tasks to be included in the analysis are: 1. Data Collection and Documentation of Existing Conditions - Hexagon will compile readily available traffic data needed to complete the study, including intersection counts, existing intersection traffic control and lane configurations, and lists of approved and pending development projects in the City. The analysis will be completed with the most recent count data available from recent traffic studies completed in the City. Existing levels of service will be calculated for the study intersections and freeway segments (if necessary). 2. Site Traffic Projections and Assignment. Trip generation estimates for the project will be developed based on the proposed size and land use using trip generation rates published by the Institute of Transportation Engineers (ITE), or other reputable source. Trips generated by the proposed project will be assigned to the roadway network in the study area. For this task, ideally, we would like to have a detailed project description, which should include building size and use, hours of operation, anticipated truck and auto volume during peak traffic hours, number of employees, employee shift times, and distribution patterns for truck and auto traffic. 3. Evaluation of Background /Approved Conditions. Traffic volumes from approved developments will be added to the existing peak -hour volumes to obtain traffic volumes for background conditions. The most recent list of approved projects in the City of Gilroy that Hexagon has will be used for this task. Improvements associated with approved developments will be assumed as directed by the City of Gilroy. Intersection levels of service under background conditions will be evaluated using the CMP methodology (TRAFFIX). The assignment of trip from approved projects will be updated, as necessary, based on the location of the study intersections for this project. 4. Evaluation of Background + Project Conditions. Project - generated traffic will be added to background traffic volumes to yield traffic volumes under background + project conditions. Intersection levels of service under project conditions will be evaluated using the CMP methodology. 5. Evaluation of Cumulative Conditions. Traffic volumes from proposed but not yet approved developments will be added to background conditions peak -hour volumes to obtain traffic volumes for baseline cumulative conditions. The most recent list of proposed projects in the City of Gilroy that Hexagon has will be used for this task. Cumulative plus project conditions will be determined by adding project trips to baseline cumulative conditions. Intersection levels of service under cumulative conditions will be evaluated using the CMP methodology. The assignment of trip from pending projects will be updated, as necessary, based on the location of the study intersections for this project. Ms. sue O'strander April 12, 2016 Page 3 of 4 6. Description of Impacts and Recommendations. Based on the results of the analyses, impacts of the site - generated traffic will be identified and described. Recommendations will be formulated that identify the locations and types of improvements or modifications necessary to mitigate significant project impacts. 7. Freeway Facilities Evaluation. The magnitude of project trips on freeway segments near the site will be determined and compared to the CMP's threshold for determining the need for freeway level of service analysis. Freeway segment levels of service will be calculated for those segments that meet the CMP thresholds. The results of this task will be documented in the report. 8. Reports. Our findings and recommendations will be summarized in a draft letter report for review by the City. Comments received on the draft report will be addressed and a final technical letter report will be developed. The final traffic report and technical appendices will be submitted both in hardcopy and electronic formats. Additional Services Any work not specifically referenced in the above Scope of Services — for example analyzing a different project description, conducting intersection counts, reviewing additional traffic- related aspects of the project, analyzing additional intersections, analyzing different phases of development, and attending public hearings — shall be considered additional services. Additional services will be provided upon written authorization. Schedule Barring any unforeseen delays, the draft letter report will be submitted six to eight weeks after receipt of all data provided or required by the City. The final report will be delivered two weeks after receipt of all review comments. Fee The cost for services rendered under this agreement (Work Items 1 through 8), as outlined above, will be a lump sum amount of $17,000. Additional Services, shall be provided upon authorization and, if requested, will be billed separately. Billing will be conducted monthly, on a percent - complete basis. This price quote is good for 30 days and assumes that all project - related activities will be completed within one year. An extended project schedule will require additional budget for project administration. Exceptions The following work items are not part of this scope and would be considered Additional Services or require a budget amendment should they be deemed necessary: Trip Generation Surveys. Should it be found that detailed usage of the proposed facilities is unavailable or inadequate, trip generation surveys can be conducted at similar existing facilities. The trip generation surveys will be billed as Additional Services. Evaluation of Individual Project Phases. This scope includes the evaluation of only the full build out of the proposed project. The tasks outlined in the scope of work can be completed for individual phases of the project if requested. Traffic Impact Study. A comprehensive traffic analysis that may be required as part of an Environmental Impact Report (EIR) for the proposed project is not included as part of this scope. PPP-` Ms. Sue O'Strander April 12, 2016 Page 4 of 4 Community /Public Meetings — The fee estimate does not include attendance at public meetings in conjunction with this study. We appreciate your consideration of Hexagon Transportation Consultants for this assignment. If you have any questions, please do not hesitate to call. Sincerely, HEXAGON TRANSPORTATION CONSULTANTS, INC. J # 0. fi4-- Jeffrey A. Elia, P.E. Principal Associate HEXAG -1 OP ID: MR CERTIFICATE OF LIABILITY INSURANCE 031/02!22016 016Y) F DATE MM / THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER R. C. Fischer & Co. P.O. Box 8101 Walnut Creek, CA 94596 -8101 Gordon J. Fischer, CPCU NAME: Melissa Rivera PHONE 925627 5467 FAX N 925-627-5467 A/C No), E -MAIL mrivera@rcfischer.com ADDRESS: GENERAL LIABILITY INSURERS AFFORDING COVERAGE NAIC # INSURER A: Travelers Indemnity of CT 25682 $ 1,000,00 INSURED Hexagon Transportation INSURER B : Travelers Prop Cas Co of Amer 25674 Consultants, Inc. 4 North Second St., #400 Technology Insurance Company INSURER C : INSURER D: Admiral Insurance Co. 24856 San Jose, CA 95113 INSURER E: CLAIMS -MADE FXI OCCUR INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: 2 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER MMIDDIYYYY MPOLICY I EXP LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 PREMISES Ea occurrence $ 300+00 A X COMMERCIAL GENERAL LIABILITY X 68088411-482 03101!2016 0310112017 CLAIMS -MADE FXI OCCUR MED EXP (Any one person) $ 5,00 PERSONAL 8 ADV INJURY $ 1,000,00 HIRED & NON -OWNED AUTO GENERAL AGGREGATE $ 2,000,00 INCLUDED IN LIABILITY GEITL AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ 2,000,00 POLICY X PRO LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident BODILY INJURY (Per person) $ ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE PER ACCIDENT $ NON-OWNED HIRED AUTOS AUTOS $ UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 5,000,00 X AGGREGATE $ 5,000,00 B EXCESS LIAB CLAIMS -MADE CUP5819P929 03101/2016 03/01/2017 DED I X I RETENTION $ 0 $ C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE YIN OFFICERIMEMBER EXCLUDED? (Mandatory in NH) NIA TWC3536143 03/01/2016 03/01/2017 X I WC STATU- I OTH- E.L. EACH ACCIDENT $ 1,000,00 E.L. DISEASE - EA EMPLOYEE $ 1,000,00 B es, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,00 D Prof Liability EOOOOOO146619 03/01/2016 03/01/2017 Ea Claim 2,000,00 Claims Made Form $5,000 DED. Aggregate 2,000,00 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) On -Call Contract 10 day notice in the event of cancellation for non - payment of premium CITYGA City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 -6141 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE rde ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 680- 8841L482- TCT -16 COMMERCIAL GENERAL LIABILITY ISSUE DATE: 01 -05 -16 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED (ARCHITECTS, ENGINEERS AND SURVEYORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE NAME OF PERSON(S) OR ORGANIZATION(S): CITY OF GILROY, ITS EMPLOYEES, OFFICERS, OFFICIALS AND VOLUNTEERS 7351 ROSANNA STREET GILROY CA 95020 -6141 PROJECTILOCATION OF COVERED OPERATIONS: PROVISIONS A. The following is added to WHO IS AN INSURED (Section 11): The person or organization shown in the Sched- ule above is an additional insured on this Cover- age Part, but only with respect to liability for "bod- ily injury", 'property damage' or 'personal injury" caused, In whole or in part, by your acts or omis- sions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing opera- tions; b. In connection with premises owned by or rented to you; or c. In connection with "your work" and included within the 'products - completed operations hazard'. Such person or organization does not qualify as an additional insured for 'bodily injury', "property damage" or 'personal injury" for which that per- son or organization has assumed liability in a con- tract or agreement. The insurance provided to such additional insured is limited as follows: d. This insurance does not apply to the render- ing of or failure to render any "professional services ". e. The limits of insurance afforded to the addi- tional insured shall be the limits which you agreed in that "contract or agreement requir- ing insurance" to provide for that additional insured, or the limits shown in the Declara- tions for this Coverage Part, whichever are less. This endorsement does not increase the limits of insurance stated in the LIMITS OF INSURANCE (Section III) for this Coverage Part. B. The following is added to Paragraph a. of 4. Other Insurance in COMMERCIAL GENERAL LIABILITY CONDITIONS (Section M: However, if you specifically agree in a "contract or agreement requiring insurance" that, for the addi- tional insured shown in the Schedule, the Insur- ance provided to that additional insured under this CG D3 82 09 07 0 2007 The Travelers Companies, Inc. Page 1 of 2 Includes the copyrighted material of Insurance Services Office, Inc., with its permission COMMERCIAL GENERAL LIABILITY Coverage Part must apply on a primary basis, or a primary and non - contributory basis, this insur- ance is primary to other insurance that is avail- able to such additional insured which covers such additional insured as a named insured, and we will not share with the other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought occurs; and (2) The "personal injury" for which coverage is sought arises out of an offense committed; after you have entered into that "contract or agreement requiring insurance" for such addi- tional insured. But this insurance still is excess over valid and collectible other insurance, whether primary, excess, contingent or on any other basis, that is available to the additional in- sured when the additional insured is also an addi- tional insured under any other insurance. C. The following is added to Paragraph 8. Transfer Of Rights Of Recovery Against Others To Us in COMMERCIAL GENERAL LIABILITY CON- DITIONS (Section IV): We waive any rights of recovery we may have against the additional insured shown in the Schedule above because of payments we make for "bodily injury", "property damage" or 'personal injury" arising out of "your work" on or for the pro- ject, or at the location, shown in the Schedule above, performed by you, or on your behalf, un- der a "contract or agreement requiring insurance" with that additional insured. We waive these rights only where you have agreed to do so as part of the "contract or agreement requiring insur- ance" with that additional insured entered into by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the "personal in- jury" offense is committed. D. The following definition is added to DEFINITIONS (Section V): "Contract or agreement requiring insurance" means that part of any contract or agreement un- der which you are required to include the person or organization shown in the Schedule as an ad- ditional insured on this Coverage Part, provided that the "bodily injury" and "property damage" oo- curs, and the "personal injury" is caused by an of- fense committed: a. After you have entered into that contract or agreement; b. While that part of the contract or agreement is in effect; and c- Before the end of the policy period. Page 2 of 2 0 2QO7 The Travelers Companies, Inc. CG D3 82 09 07 Includes the copyrighted material of Insurance Services office, Inc., with its permission