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Agreement - DUDEK - On-Call Historical Review Services - Signed 2022-06-10City of Gilroy Agreement/Contract Tracking Today’s Date: June 7, 2022 Your Name: Monica Sendejas Contract Type: Services over $5k - Consultant Phone Number: 408-846-0266 Contract Effective Date: (Date contract goes into effect) 6/10/2022 Contract Expiration Date: 6/10/2025 Contractor / Consultant Name: (if an individual’s name, format as last name, first name) Dudek Contract Subject: (no more than 100 characters) On-Call Historical Review Services (2022) Contract Amount: (Total Amount of contract. If no amount, leave blank) $1,000,000.00 By submitting this form, I confirm this information is complete: ➢ Date of Contract ➢ Contractor/Consultant name and complete address ➢ Terms of the agreement (start date, completion date or “until project completion”, cap of compensation to be paid) ➢ Scope of Services, Terms of Payment, Milestone Schedule and exhibit(s) attached ➢ Taxpayer ID or Social Security # and Contractors License # if applicable ➢ Contractor/Consultant signer’s name and title ➢ City Administrator or Department Head Name, City Clerk (Attest), City Attorney (Approved as to Form) Routing Steps for Electronic Signature Risk Manager City Attorney Approval As to Form City Administrator or Department Head City Clerk Attestation DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -1- 4835-2267-0361v1 LAC\04706083 AGREEMENT FOR SERVICES (For contracts over $5,000 - CONSULTANT) This AGREEMENT made this 7 day of June, 2022, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: Dudek, having a principal place of business at 605 3rd Street, Encinitas, CA 92024. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on 6/10/2022 and will continue in effect through 6/10/2025 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. ______ 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. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -2- 4835-2267-0361v1 LAC\04706083 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 $1,000,000.00. 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 IV) 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 responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -3- 4835-2267-0361v1 LAC\04706083 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, 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 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -4- 4835-2267-0361v1 LAC\04706083 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. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -5- 4835-2267-0361v1 LAC\04706083 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 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -6- 4835-2267-0361v1 LAC\04706083 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. 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 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -7- 4835-2267-0361v1 LAC\04706083 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 jurisdicti on 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. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -8- 4835-2267-0361v1 LAC\04706083 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: CITY: DUDEK CITY OF GILROY By: By: Name: Joseph Monaco Name: Jimmy Forbis Title: President Title: City Administrator Social Security or Taxpayer Identification Number 95-3873865 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -9- 4835-2267-0361v1 LAC\04706083 Approved as to Form ATTEST: City Attorney City Clerk DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -1- 4835-2267-0361v1 LAC\04706083 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 Fallin Steffen, 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, Kraig Tambornini 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. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -2- 4835-2267-0361v1 LAC\04706083 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 he rein, 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. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -3- 4835-2267-0361v1 LAC\04706083 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. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -4- 4835-2267-0361v1 LAC\04706083 H. NOTICES. Notices are to be sent as follows: CITY: Kraig Tambornini, Senior Planner City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Fallin Steffen Dudek 1100 R. St. Sacramento, CA 95811 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. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “B” SCOPE OF SERVICES Historical Evaluations The City of Gilroy maintains a Historic Preservation Inventory of historic resources that are spread throughout the City. General Plan policies encourage the preservation of these historic and architecturally significant buildings, as well as archaeological sites and other landmarks that represent important elements of Gilroy’s past. The adaptive reuse of historic buildings is also promoted, especially in the Downtown Historic District, to preserve the buildings’ historic character while encouraging development of an economically vital Downtown. As the City receives requests to alter, reuse or remove historic resources, the City requires the services of a qualified Historical Consultant to prepare a historical evaluation, review proposals for compliance with the Secretary of Interior Standards, and complete the appropriate CEQA review. In general, the successful individuals and/or firms will be expected to provide historical evaluation services in accordance with the criteria and professional standards established by CEQA and the City of Gilroy. The Consultant’s ability to complete the historical evaluations in a timely manner is essential. The services that the on-call Consultant would provide include, but are not limited to the following: 1. Accurately analyze projects for compliance with CEQA, the Secretary of the Interior’s Standards, and applicable City policies, including but not limited to the Downtown Specific Plan and the Historic Site and Neighborhood Combining District Ordinance; 2. Conduct thorough online and literature research of the resource including but not limited to the Gilroy Museum, Northwest Information Center (NWIC) of the California Historical Information Systems (CHRIS), University of California, California State Library, California Digital Newspaper Collection, and newspapers.com. Consultant shall also check to see if the property is listed in the National Register of Historic Places, the California Register of Historical Resources and any other applicable federal, state, or regional listing; 3. Write accurate, clear, and concise historical evaluations to include the following minimum components: a. Documentation of the resource’s historic value; b. Architectural description of the resource, including information describing if the resource has been altered or moved; and c. Photographs of the resource in digital format. 4. Identify potential significant adverse impacts to significant historic resources, and provide recommended mitigation to reduce the level of impact to less than significant; DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -2- 4835-2267-0361v1 LAC\04706083 5. Provide material, design, architectural style, and other recommendations to conform to the Secretary of the Interior’s Standards (“Standards”) if the proposed project does not comply with the Standards, as well as recommendations on how projects may improve compatibility with nearby historic structures or districts; 6. Attend meetings with city staff and applicants, when necessary, to provide specific direction regarding proposed projects’ conformance with the “Standards” and their compatibility with nearby historic structures or districts; 7. Prepare Department of Parks and Recreation forms (DPR 523 series of forms) as needed; 8. Attend Planning Commission and/or City Council meetings and give presentations when necessary; 9. Conduct site visits as necessary; 10. Maintain concise and accurate administrative record for the assigned project. The project administrative record will be returned to the City upon request, or at project completion; 11. Be available during regular business hours to answer questions from city staff; and 12. Provide brief weekly updates to Gilroy Planning staff on the status of the application processing as requested. Prior to assigning a specific project, the City will provide an introductory overview of the project and the scope of services to be provided. All available drawing and other applicable technical and property information will be available to the Consultant. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “C” MILESTONE SCHEDULE N/A DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 4835-2267-0361v1 LAC\04706083 EXHIBIT “D” PAYMENT SCHEDULE See attached. DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 On-Call Historical Evaluations, Project No. 21-RFQ-CDD-330 Page 18 Billing Structure DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD DATE (MM/DD/YYYY) PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTED CLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGG $JECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. 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 have ADDITIONAL INSURED provisions or 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE Lockton Companies 444 W. 47th Street, Suite 900 Kansas City MO 64112-1906 (816) 960-9000 kctsu@lockton.com DUDEK 605 THIRD STREET ENCINITAS CA 92024 American Guarantee and Liab. Ins. Co.26247 Continental Casualty Company 20443 Zurich American Insurance Company 16535 X X 1,000,000 100,000 10,000 1,000,000 2,000,000 2,000,000 X 1,000,000 XXXXXXX XXXXXXX XXXXXXX XXXXXXX X X 5,000,000 5,000,000 XXXXXXX N X 1,000,000 1,000,000 1,000,000 PROFESSIONAL LIABILITY INCLUDES POLLUTION PER CLAIM $5,000,000 AGGREGATE $5,000,000 A BAP0146329 8/28/2021 8/28/2022 A GLO0146311 8/28/2021 8/28/2022 B EEH591932835 INCL POLL 8/28/2021 8/28/2022 C AUC0146407 8/28/2021 8/28/2022 A WC0146330 8/28/2021 8/28/2022 8/28/2022 1475279 Y Y Y Y Y Y Y 6/3/2022 N N 18591893 18591893 XXXXXXX CITY OF GILROY, ITS OFFICERS, OFFICIALS AND EMPLOYEES 7351 ROSANNA STREET GILROY CA 95020 ALL OPERATIONS; GENERAL LIABILITY AND AUTO LIABILITY ARE PRIMARY AND NON-CONTRIBUTORY. CITY OF GILROY, ITS OFFICERS, OFFICIALS AND EMPLOYEES ARE INCLUDED AS AN ADDITIONAL INSURED ON THE GENERAL LIABILITY, UMBRELLA, AND AUTO LIABILITY POLICIES. WAIVER OF SUBROGATION IN FAVOR OF THE ADDITIONAL INSURED ON THE GENERAL LIABILITY, UMBRELLA, AUTO LIABILITY, AND WORKER’S COMPENSATION POLICIES. 30 DAY NOTICE OF CANCELLATION APPLIES, 10 DAYS NOTICE FOR NON-PAYMENT OF PREMIUM. X X See Attachments DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 Additional Insured – Owners, Lessees Or Contractors – Scheduled Person Or Organization THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Policy No. GLO0146311 Effective Date: 8/28/2021 This endorsement modifies insurance provided under the: Commercial General Liability Coverage Part SCHEDULE Name Of Additional Insured Person(s) Or Organization(s):Location(s) Of Covered Operations ANY PERSON OR ORGANIZATION ARE REQUIRED TO PROVIDE ADDITIONAL INSURED STATUS IN A WRITTEN CONTRACT, AGREEMENT OR PERMIT. ALL LOCATIONS U-GL-2169-A CW (02/19) Page 1 of 2 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Attachment Code: D574649 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 A. Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule of this endorsement, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1.Your acts or omissions; or 2.The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated in such Schedule. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1.All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2.That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. All other terms, conditions, provisions and exclusions of this policy remain the same. U-GL-2169-A CW (02/19) Page 2 of 2 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Attachment Code: D574649 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 00 03 13 WC0146330 Dudek 8/28/20218/28/2022 (Ed. 4-84) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule ANY PERSON OR ORGANIZATION YOU ARE REQUIRED TO WAIVE YOUR RIGHTS OF RECOVERY IN A WRITTEN CONTRACT, AGREEMENT OR PERMIT WITH THE NAMED INSURED. WC 00 03 13 (Ed. 4-84) 1983 National Council on Compensation Insurance. Attachment Code: D574650 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 Waiver Of Subrogation (Blanket) Endorsement Policy No.Eff. Date of Pol.Exp. Date of Pol.Eff. Date of End.Producer Add’l Prem.Return Prem. GLO0146311 8/28/2021 8/28/2022 8/28/2022 37385000 $INCL $ THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the: Commercial General Liability Coverage Part The following is added to the Transfer Of Rights Of Recovery Against Others To Us Condition: If you are required by a written contract or agreement, which is executed before a loss, to waive your rights of recovery from others, we agree to waive our rights of recovery. This waiver of rights shall not be construed to be a waiver with respect to any other operations in which the insured has no contractual interest. U-GL-925-B CW (12/01) Page 1 of 1 Attachment Code: D574648 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 POLICY NUMBER: BAP0146329 COMMERCIAL AUTO CA 20 48 10 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED FOR COVERED AUTOS LIABILITY COVERAGE This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. This endorsement identifies person(s) or organization(s) who are “insureds” for Covered Autos Liability Coverage under the Who Is An Insured provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. Named Insured: DUDEK Endorsement Effective Date: 8/28/2021 SCHEDULE Name Of Person(s) Or Organization(s): ANY PERSON OR ORGANIZATION TO WHOM OR WHICH YOU ARE REQUIRED TO PROVIDE ADDITIONAL INSURED STATUS OR ADDITIONAL INSURED STATUS ON A PRIMARY, NON-CONTRIBUTORY BASIS, IN A WRITTEN CONTRACT OR WRITTEN AGREEMENT EXECUTED PRIOR TO LOSS, EXCEPT WHERE SUCH CONTRACT OR AGREEMENT IS PROHIBITED BY LAW. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. CA 20 48 10 13 © Insurance Services Office, Inc., 2011 Page 1 of 2 Attachment Code: D574651 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 Each person or organization shown in the Schedule is an “insured” for Covered Autos Liability Coverage, but only to the extent that person or organization qualifies as an “insured” under the Who Is An Insured provision contained in Paragraph A.1. of Section II – Covered Autos Liability Coverage in the Business Auto and Motor Carrier Coverage Forms and Paragraph D.2. of Section I – Covered Autos Coverages of the Auto Dealers Coverage Form. CA 20 48 10 13 © Insurance Services Office, Inc., 2011 Page 2 of 2 Attachment Code: D574651 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 POLICY NUMBER: BAP0146329 COMMERCIAL AUTO CA 04 44 10 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US (WAIVER OF SUBROGATION) This endorsement modifies insurance provided under the following: AUTO DEALERS COVERAGE FORM BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. Named Insured: DUDEK Endorsement Effective Date: 8/28/2021 SCHEDULE Name(s) Of Person(s) Or Organization(s): ANY PERSON OR ORGANIZATION YOU ARE REQUIRED TO WAIVE YOUR RIGHTS OF RECOVERY IN A WRITTEN CONTRACT, AGREEMENT OR PERMIT WITH THE NAMED INSURED. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. The Transfer Of Rights Of Recovery Against Others To Us condition does not apply to the person(s) or organization(s) shown in the Schedule, but only to the extent that subrogation is waived prior to the “accident” or the “loss” under a contract with that person or organization. CA 04 44 10 13 © Insurance Services Office, Inc., 2011 Page 1 of 1 Attachment Code: D574651 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 Other Insurance Amendment – Primary And Non-Contributory Policy No.Eff. Date of Pol.Exp. Date of Pol.Eff. Date of End.Producer No.Add’l. Prem Return Prem. GLO0146311 8/28/2021 8/28/2022 8/28/2021 37385000 INCL THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Named Insured: DUDEK Address (including ZIP Code): 605 THIRD STREET ENCINITAS CA92024 This endorsement modifies insurance provided under the: Commercial General Liability Coverage Part 1. The following paragraph is added to the Other Insurance Condition of Section IV – Commercial General Liability Conditions: This insurance is primary insurance to and will not seek contribution from any other insurance available to an additional insured under this policy provided that: a.The additional insured is a Named Insured under such other insurance; and b.You are required by a written contract or written agreement that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured. 2. The following paragraph is added to Paragraph 4.b. of the Other Insurance Condition of Section IV – Commercial General Liability Conditions: This insurance is excess over: Any of the other insurance, whether primary, excess, contingent or on any other basis, available to an additional insured, in which the additional insured on our policy is also covered as an additional insured on another policy providing coverage for the same "occurrence", offense, claim or "suit". This provision does not apply to any policy in which the additional insured is a Named Insured on such other policy and where our policy is required by written contract or written agreement to provide coverage to the additional insured on a primary and non-contributory basis. All other terms and conditions of this policy remain unchanged. U-GL-1327-B CW (04/13) Page 1 of 1 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Attachment Code: D589214 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 Additional Insured – Owners, Lessees Or Contractors – Completed Operations THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Policy No. GLO0146311 Effective Date: 8/28/2021 This endorsement modifies insurance provided under the: Commercial General Liability Coverage Part SCHEDULE Name Of Additional Insured Person(s) Or Organization(s):Location And Description Of Completed Operations ANY PERSON OR ORGANIZATION ARE REQUIRED TO PROVIDE ADDITIONAL INSURED STATUS IN A WRITTEN CONTRACT, AGREEMENT OR PERMIT. ALL LOCATIONS U-GL-2168-A CW (02/19) Includes copyrighted material of Insurance Services Office, Inc., with its permission. Attachment Code: D580830 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7 Section II – Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule of this endorsement, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in such Schedule, performed for that additional insured and included in the "products-completed operations hazard". All other terms, conditions, provisions and exclusions of this policy remain the same. U-GL-2168-A CW (02/19) Includes copyrighted material of Insurance Services Office, Inc., with its permission. Attachment Code: D580830 Certificate ID: 18591893 DocuSign Envelope ID: 6B9C1E92-085A-4EE6-BDCB-0564881624B7