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Agreement - Hexagon Transportation Consultants, Inc. - Analysis for TEC Equipment
City of Gilroy Agreement/Contract Tracking Today’s Date: June 11, 2024 Your Name: Monica Sendejas Contract Type: Services over $5k - Consultant Phone Number: 408-846-0266 Contract Effective Date: (Date contract goes into effect) 6/14/2024 Contract Expiration Date: 6/30/2025 Contractor / Consultant Name: (if an individual’s name, format as last name, first name) Hexagon Transportation Consultants, Inc. Contract Subject: (no more than 100 characters) Transportation Analysis for TEC Equipment (M 24-04) Contract Amount: (Total Amount of contract. If no amount, leave blank) $46,640 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: 75D12C57-4C32-4203-91B4-6596A080AB61 -1- 4835-2267-0361v1 LAC\04706083 AGREEMENT FOR SERVICES (For contracts over $5,000 - CONSULTANT) This AGREEMENT made this 11 day of June, 2024, 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 4 N 2nd St. #400, San Jose, CA, 95113. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on 6/14/2024 and will continue in effect through 6/30/2025 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: 75D12C57-4C32-4203-91B4-6596A080AB61 -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 $46,640.00. 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: 75D12C57-4C32-4203-91B4-6596A080AB61 -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: 75D12C57-4C32-4203-91B4-6596A080AB61 -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: 75D12C57-4C32-4203-91B4-6596A080AB61 -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: 75D12C57-4C32-4203-91B4-6596A080AB61 -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: 75D12C57-4C32-4203-91B4-6596A080AB61 -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 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. DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -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 bei ng 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: HEXAGON TRANSPORTATION CONSULTANTS, INC. CITY OF GILROY By: By: Name: Robert Del Rio Name: Sharon Goei Title: Vice President, Principal Associate Title: Community Development Director Social Security or Taxpayer Identification Number 77-0478675 DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -9- 4835-2267-0361v1 LAC\04706083 Approved as to Form ATTEST: City Attorney City Clerk DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -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 Gicela Del Rio, 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, Erin Freitas 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: 75D12C57-4C32-4203-91B4-6596A080AB61 -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 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, inv oices, 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: 75D12C57-4C32-4203-91B4-6596A080AB61 -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: 75D12C57-4C32-4203-91B4-6596A080AB61 -4- 4835-2267-0361v1 LAC\04706083 H. NOTICES. Notices are to be sent as follows: CITY: Erin Freitas City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Gicela Del Rio Hexagon Transportation Consultants, Inc. 4 N 2nd St. #400 San Jose, CA 95113 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: 75D12C57-4C32-4203-91B4-6596A080AB61 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “B” SCOPE OF SERVICES Prepare a Transportation Analysis for the Proposed TEC Equipment Development at 6605 Automall Parkway (M 24-04) The Consultant will prepare a Transportation Analysis for the proposed TEC Equipment development at 6605 Automall Parkway (APN 841-16-117). The project site consists of an approximately 5-acre parcel bound by Automall Parkway to the east, the existing Nissan car dealership to the north, an industrial building to the west, and undeveloped land to the south. The project site is currently undeveloped and is designated as General Service Commercial in the City of Gilroy 2040 General Plan. The Zoning Map designation for the site is Commercial Industrial (CM). The project as proposed would develop the site with a truck/trailer sales and service dealership. The project’s primary functions would be semi-truck and trailer sales, truck and trailer service, and truck parts sales with required warehouse storage. A building totaling approximately 41,000 square feet (s.f.) would house the primary services, with the following building breakdown: - Retail truck and trailer sales/office space: approximately 9,456 s.f. - Truck and trailer repair garage space: approximately 16,853 s.f. - Parts warehouse space: approximately 14,770 s.f. Parking for all site users, including trucks, trailers, and passenger vehicles, would be provided on site. Access to the project site would be provided via two driveways along Automall Parkway. The purpose of the traffic analysis is to satisfy the requirements of the City of Gilroy, the Congestion Management Program (CMP) of the Santa Clara Valley Transportation Authority (VTA), and CEQA. The study will determine the traffic impacts of the proposed p roject on the transportation network in the vicinity of the site. The study will determine the traffic impacts of the proposed project on the transportation network in the vicinity of the site. In adherence to Senate Bill (SB) 743 legislation, the effects and impacts to the transportation network as the result of the implementation of the proposed project will be evaluated based on vehicle miles traveled (VMT). However, the City of Gilroy currently uses congestion and delay metrics, such as Level of Service (LOS), as their adopted methodology for the evaluation of the effects of new development and land use changes on the local transportation network. Therefore, in addition to the evaluation of VMT, this transportation analysis also will include roadway capacity analysis, based on level of service, to evaluate the effects of the proposed project on the surrounding transportation network. The level of service analysis will be presented to determine conformance to General Plan transportation policies. However, the determination of project impacts per CEQA requirements will be based solely on the VMT analysis. DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -2- 4835-2267-0361v1 LAC\04706083 VMT Evaluation Methodology and Criteria Pursuant to SB 743, the Governor’s Office of Planning and Research (OPR) released the current CEQA Guidelines Update (Technical Advisory on Evaluation Impacts in CEQA) in December 2018, which proposes VMT as the replacement metric for LOS in the context of CEQA. While OPR emphasizes that a lead agency has the discretionary authority to establish thresholds of significance, the Final Guidelines suggests criteria that indicate when a project may have a significant, or less than significant, transportation impact on the environment. In accordance with CEQA, all proposed projects are required to analyze transportation as a component of environmental review using average trip length per resident and/or per employee as metrics (total VMT for retail/commercial projects). Since the City of Gilroy has yet to formally adopted its own City-specific guidelines for the CEQA evaluation of projects based on VMT, the City relies on OPR’s VMT analysis guidelines and impact threshold recommendations as they work towards establishing their own guidelines. Thus, for the purpose of this analysis, a comparison of the citywide VMT (or baseline VMT) versus the project’s VMT is made to determine the effects of the proposed project on VMT. The VMT analysis will utilize OPR’s recommendation of 15 percent (%) below baseline conditions as the threshold to identify potential VMT impacts for employment projects. The evaluation of the project’s effects on VMT will be based on the Valley Transportation Authority (VTA) VMT Evaluation Tool which was developed to streamline the analysis for development projects in Santa Clara County. If a project is found to have a significant impact on VMT, the impact must be reduced by modifying the project to reduce its VMT to an acceptable level (below the identified thresholds of significance), mitigating the impact through multimodal transportation improvements, implementing applicable Transportation Demand Management (TDM) measures, and/or by establishing a trip cap. Possible measure to mitigate the project VMT impact will be identified in the report. Roadway Capacity Analysis For conformance with City of Gilroy General Plan transportation policies, the project will be required to complete an analysis of the effects of project traffic on the local transportation system, or a roadway capacity analysis. The roadway capacity analysis will include the evaluation of intersections based on delay/level of service. Preliminarily, the Consultant estimates a need to include up to six intersections, six freeway segments, and one freeway interchange. The study facilities will be evaluated during the weekday AM and PM peak commute hours. The list of study facilities will be finalized in coordination with City staff. Additional study facilities will require authorization and additional budget. The study intersections, freeway segments, and freeway ramp which have been identified are listed below. Study Intersections 1. US 101 Southbound Ramps and Tenth Street DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -3- 4835-2267-0361v1 LAC\04706083 2. US 101 Northbound Ramps and Pacheco Pass Highway (SR 152) 3. Automall Parkway/Chestnut Street and Tenth Street 4. Automall Parkway and Automall Drive 5. Automall Parkway and Luchessa Avenue 6. Monterey Road and Luchessa Avenue Study Freeway Segments 1. US 101, between SR 25 and Monterey Road 2. US 101, between Monterey and Pacheco Pass Highway 3. US 101, between Pacheco Pass Highway and Leavesley Road 4. US 101, between Leavesley Road and Buena Vista Road 5. US 101, between Buena Vista Road and Masten Avenue 6. US 101, between Masten Avenue and San Martin Avenue Study Freeway Ramps 1. US 101 at Tenth Street/SR 152 Study Scenarios The key transportation facilities will be evaluated for the following study scenarios: - Existing Conditions: Existing traffic volumes on the existing roadway network. - Background Conditions: Existing + approved developments on the existing roadway network. - Background + Project Conditions: Existing + approved developments + project trips on the existing roadway network. - 2040 General Plan Conditions: Adopted Year 2040 General Plan buildout traffic volumes on the General Plan roadway network. - 2040 General Plan + Project Conditions: Year 2040 General Plan buildout traffic volumes with implementation of the proposed project on the General Plan roadway network. Scope Tasks The tasks to be included in the roadway capacity analysis are described below. DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -4- 4835-2267-0361v1 LAC\04706083 1. Site Reconnaissance. The physical characteristics of the site and the surrounding roadway network will be reviewed to identify existing roadway cross-sections, intersection lane configurations, traffic control devices, and surrounding land uses. 2. Observation of Existing Conditions. Existing traffic conditions will be observed in the field in order to identify any operational deficiencies and to confirm the accuracy of calculated levels of service. 3. Data Collection. New manual peak-hour turning movement counts will be conducted at intersections where existing counts are either outdated or not available. The Consultant estimates that new traffic count data will be needed at all of the study intersections. Thus, the fee estimate includes costs for conducting new AM and PM peak -period turning movement counts at 6 locations (12 peak-hour counts). Additional counts will require additional budget. 4. Evaluation of Existing Conditions. The existing traffic conditions at the study intersections will be evaluated with the Santa Clara County CMP level of service methodology, TRAFFIX, using current conditions peak-hour traffic volumes. 5. 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. A list of approved projects (including size, use, and location) will be obtained from the City of Gilroy Planning Division for this task. Improvements associated with approved developments will be assumed as directed by the City of Gilroy. Interse ction levels of service under background conditions will be evaluated using the CMP methodology. 6. Site Traffic Projections. Based on the proposed development size and land uses, site-generated traffic will be estimated using the appropriate vehicular trip generation rates published in the latest edition of Institute of Transportation Engineers’ (ITE) Trip Generation and project specific information to be provided by the project applicant. 7. Trip Distribution and Assignment. The directional distribution of site-generated traffic will be forecast based on project information, the anticipated project service areas, and the relative location of complementary land uses in the area. The site-generated traffic will be added to the roadway network based on the directions of approach and departure discussed above and considering the roadway network, travel patterns, and the proposed location of the project site driveways. 8. Evaluation of Background + Project Conditions. Project-generated traffic will be added to background traffic volumes to yield traffic volumes under background + project conditions. Intersection deficiencies associated with the proposed project will be evaluated relative to background conditions. Intersection levels of service under background plus project conditions will be evaluated using the CMP methodology. 9. Evaluation of General Plan Conditions. A level of service analysis under 2040 General Plan conditions without and with the project will be conducted. The General Plan scenarios will evaluate traffic conditions under the 2040 General Plan Buildout conditions with the proposed project on the planned roadway network and compare them to the adopted 2040 General Plan traffic conditions. This scenario will identify the effect of the proposed project on adopted General DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -5- 4835-2267-0361v1 LAC\04706083 Plan conditions. Traffic volumes for General Plan conditions will be obtained from the City’s traffic demand forecasting model. Intersection levels of service under General Plan conditions will be evaluated using the CMP methodology. 10. Freeway Segment Analysis. Freeway level of service will be determined in accordance with the Santa Clara County CMP guidelines for freeway analyses. The analysis will include evaluation of AM and PM peak-hour freeway conditions for existing and project conditions. Deficiencies to freeway segments caused by the project, if any, will be identified. 11. Freeway Ramp Analysis. Existing traffic volumes at the study freeway ramps will be obtained from the existing traffic count data. The freeway ramp analysis will compare the existing capacity at the study ramps with the projected demand and identify locations where the available capacity is projected to be exceeded. 12. Evaluation of Vehicle Queue. For selected locations specified by City staff and/or where the project is projected to add a significant number of turning vehicles, the adequacy of existing/planned storage at turn pockets will be assessed by means of comparison with expected maximum vehicle queues. Vehicle queues will be estimated using a Poisson probability distribution. 13. Site Access, On-Site Circulation, and Parking Analysis. A review of the project site plan will be performed to determine if adequate site access and on-site circulation are provided and to identify any access or circulation issues that should be improved. This will include a quantitative analysis of the anticipated traffic volumes at the site’s driveways, as well as a qualitative analysis of the proposed site access and site layout. The review will focus on the adequacy of the site access points based on the site’s overall anticipated trip generation and consider the following: - sight distance at the access driveways, - vehicle queues at site driveways, - driveway locations, traffic control requirements, alignment, and dimensions, - on-site layout and circulation, and - pedestrian access and circulation. This task will include an assessment of both truck and passenger vehicle access and on -site circulation. Additionally, the proposed parking supply on the site will be compared to City parking requirements and documented in the traffic report. 14. Bicycle, Pedestrian, and Transit Facilities. A qualitative analysis of the project’s effect on transit service and bicycle/pedestrian circulation in the study area will be conducted. Bicycle and pedestrian circulation will be reviewed for consistency with the City’s General Plan, the Bicycle/Pedestrian Transportation Plan, and the Complete Streets Policy. Connectivity between the project site and the adjacent land uses, as well as pedestrian circulation within the project area, will be reviewed and possible improvements identified, if necessary. DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -6- 4835-2267-0361v1 LAC\04706083 15. Description of Project Deficiencies and Recommendations. Based on the results of the above analyses, deficiencies to the roadway network as the result of the site-generated traffic will be identified. Recommendations will be formulated that identify the locations and types of improvements or modifications necessary to improve deficiencies created or contributed to by the project. Improvements could include street widenings, lane additions, changes in lane usage, addition of traffic signals, or modification of existing traffic signals. This task does not include preparation of improvement drawings or cost estimates. 16. Reports. The Consultant's findings and recommendations will be summarized in a draft report for review by the project team. Comments received on the draft report will be addressed and a final traffic report will be developed. 17. Meetings. The cost estimate includes the Consultant's staff attendance at up to two meetings with City and/or project team in connection with the project. Additional meetings will require authorization and additional budget. DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “C” MILESTONE SCHEDULE The Consultant is prepared to start work on this project immediately upon notice to proceed. Barring any unforeseen delays, a draft report will be submitted 8 weeks after: (1) authorization to proceed after fully executing the agreement, and (2) receipt of all data provided by the City. The final report will be delivered one week after receipt of all review comments. DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 4835-2267-0361v1 LAC\04706083 EXHIBIT “D” PAYMENT SCHEDULE The cost for services rendered under this agreement (VMT evaluation and Work Items 1 through 17 associated with the roadway capacity analysis), as outlined in Exhibit "B", will be billed on a time and expenses basis, not to exceed $46,640. Billing will be conducted monthly, on a percent complete basis. Additional services shall be provided upon authorization and, if requested, will be billed separately. All project-related activities will be completed within one year. Extended project schedules will require additional budget for project administration. DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? 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P.O.Box 8101 Walnut Creek CA 94596 April Carter 925-627-5466 925-932-0962 acarter@rcfischer.com The Travelers Indemnity Company of Connecticut 25682 HEXAG-1 Argonaut Insurance Company 19801HexagonTransportationConsultants,Inc. 100 Century Center Court San Jose CA 95112 The Travelers Indemnity Company 25658 Travelers Property Casualty Company of America 25674 Republic Indemnity Company of America 22179 1344206867 A X 2,000,000 X 1,000,000 5,000 2,000,000 4,000,000 X Y 6807H532991 3/1/2024 3/1/2025 4,000,000 C 1,000,000 XX BA4R517440 3/1/2024 3/1/2025 D X 5,000,000 X 0 CUP5819P929 X 5,000,000 3/1/2024 3/1/2025 E 25554403 3/1/2024 3/1/2025 X 1,000,000 1,000,000 1,000,000 B Professional Liability Claims-Made Form Retro Date:03/01/1998 121AE000328805 3/1/2024 3/1/2025 Each Claim Aggregate Deductible $4,000,000 $4,000,000 $5,000 Re:Various City of Gilroy projects as assigned City of Gilroy,its employees,officers,officials and volunteers are included as additional insureds as respects general liability per the attached endorsement. Thirty (30)Day notice of cancellation;Ten (10)day notice in the event of cancellation for non-payment of premium City of Gilroy,its officers,officials and employees 7351 Rosanna Street Gilroy CA 95020-6141 DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61 DocuSign Envelope ID: 75D12C57-4C32-4203-91B4-6596A080AB61