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HomeMy WebLinkAboutBengal Engineering - Miller Park Restroom GeotechnicalAGREEMENT FOR SERVICES (For design professional contracts over $5,000) This AGREEMENT made this 18th day of March, 2016 between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: Bengal Engineering, Inc., having a principal place of business at 250 Big Sur Drive. Goleta, CA 93117. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on 03/18/2016 and will continue in effect through 03/22/2019 unless terminated in accordance with the provisions of Article 7 of this Agreement. ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. 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 and 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. 4845- 6718 -33850 LAC104706083 C. Employment of Assistants CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT'S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit "D ". In no event however shall the total compensation paid to CONSULTANT exceed $6,900. 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 4845 - 6718- 3385v1 _2_ LAC104706083 responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONSULTANT agrees to provide workers' compensation insurance for CONSULTANT'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation 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) 4845 - 6718- 3385v1 LAC104706083 -� - with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements set forth below. Professional Liability Insurance written on a claims made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non - renewed, and not replaced with another claims -made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning of the contract work, CONSULTANT must purchase so called "extended reporting" or "tail" coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY'S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONSULTANT is not CITY'S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: 9 CITY will not withhold FICA (Social Security) from CONSULTANT'S payments; 6 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; Y CITY will not obtain workers' compensation insurance on behalf of CONSULTANT. 4845 -6718- 3385v1 _4_ LAC104706083 ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of Consultant's Business/ Death of Consultant. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit A, Subsection V.I., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. B. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONSULTANT'S failure to professionally and /or timely perform any of the services contemplated by this Agreement. 2. CONSULTANT'S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work satisfactorily completed through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C" which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONSULTANT'S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY may have, CONSULTANT shall 4845 - 6718- 3385v1 LAC104706083 -5- 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 use due professional care to comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ( "the Act ") in its current form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation attorneys' fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable 4845 - 6718- 3385v1 _6_ LAC104706083 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. 4845 - 6718- 3385u1 LAC104706083 -7- 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.I. 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: Benaat Engineering,. Inc. By: Name: Scott Onishuk. PE Title: Director Social Security or Taxpayer Identification Number 20- 2027764 4845 - 6718- 3385v1 LAC104706083 -8- CITY: A A{X�. 111)99, ' -T— Fro T�� r °. Approved as to Form City Attorney 4845 - 6718- 3385v1 _9_ LAC104706083 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 Scott Onishuk P.E., who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to satisfactorily complete the Services required herein. II. NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written "Notice to Proceed ", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e -mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, David Stubchaer, P.E. shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided in the Section V.I. ( "Notices ") of this Exhibit "A ". B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has satisfactorily completed all of the Services, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has satisfactorily completed all of the Services and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not satisfactorily completed all of such Services, CITY shall so inform CONSULTANT within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C ". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. 4845 - 6718- 3385v1 _ 1 LAC104706083 Direct expenses are charges and fees not included in Exhibit "B ". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. CONSULTANT'S SERVICES TO BE APPROVED BY A REGISTERED PROFESSIONAL ENGINEER All civil (including structural and geotechnical) engineering plans, calculations, specifications and reports shall be prepared by, or under the responsible charge of, a licensed civil engineer and shall include his or her name and license number. Interim documents shall include a notation as to the intended purpose of the document, such as "preliminary" or "for review only." All civil engineering plans and specifications that are permitted or that are to be released for construction shall bear the signature and seal of the licensee and the date of signing and sealing or stamping. All final civil engineering calculations and reports shall bear the signature and seal or stamp of the licensee, and the date of signing and sealing or stamping. B. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT'S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well - organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. C. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. The CITY'S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with 4845 - 6718- 3385v1 _2_ LAM04706083 applicable law for all damages to CITY caused by CONSULTANT'S negligent performance of any of the services furnished under this Agreement. D. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. E. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT'S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. F. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. G. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.E of this Exhibit "A ". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. 4845 -6718- 33850 _3 LAC104706083 H. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. I. NOTICES. Notices are to be sent as follows: CITY: Rick Smelser, City Engineer. City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Scott Onishuk Bengal Engineering, Inc 250 Big Sur Drive Goleta. CA 93117 J. 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.J. apply. ®' If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.J. do not apply. 1. DBE Program CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City - adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONSULTANT warrants that he /she has not employed or retained any company or person, other than a bona fide employee working for the CONSULTANT, to solicit or secure this Agreement, and that he /she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or 4845 - 6718- 3385v1 _4_ LAC \04706083 consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 4845 - 6718 -33850 LAC104706083 -5- EXHIBIT "B" SCOPE OF SERVICES 4845- 6718- 3385v1 LAM04706083 D� ��]' Earth Systems Pacific February 5, 2016 Mr. Scott Onishuk, P.E. Bengal Engineering, Inc. 250 Big Sur Drive Goleta, CA 93117 PROJECT: MILLER PARK RESTROOM BUILDING MILLER PARK, BETWEEN CARMEL AND PRINCEVALLE STREETS GILROY, CALIFORNIA SUBJECT: Proposal for a Geotechnical Engineering Investigation Dear Mr. Onishuk: 500 Park Center Clove, Ste.1 Holster, CA 95023 Ph: 831- 637 -2133 esp@earthsystems.com wwvicearthsystems.com Earth Systems Pacific is pleased to present this proposal to conduct a geotechnical engineering investigation for the replacement restroom building at Miller Park in Gilroy. We understand that the building will be an approximately 17 by 20 -foot precast concrete structure placed atop compacted soil and aggregate base, and located in the same area as the existing restroom. Foundation footings are not planned for the building. We anticipate that some exterior flatwork such a sidewalks will be associated with the restroom building. A minor amount of grading will be necessary to develop the site. We assumed that the project will be subject to State Prevailing Wage regulations. Scope of Services To evaluate subsurface conditions, we plan to drill one boring at the site using a truck - mounted drill rig. The boring will be drilled to an approximate depth of 15 feet below the existing ground surface. Soils encountered in the boring will be classified in general accordance with the Unified Soil Classification System. A Copy of the boring log will be included in the report. In accordance with the requirements of the Santa Clara Valley Water District, the boring will be backfilled with cement grout. Soil samples will be obtained using a ring -lined barrel sampler, standard penetration tests will be performed at selected intervals, and a bulk sample will be obtained from the auger cuttings. Soil samples will be tested in the laboratory to identify properties such as moisture and density, grain size distribution, and plasticity index. The actual types and numbers of tests performed will depend on the subsurface conditions encountered. ®r-460F Miller Park Restroom Building 2 February 5, 2016 Gilroy, California The field and laboratory data will be reviewed by a registered geotechnical engineer and evaluated with respect to development of criteria for site preparation and grading, utility trenches, site drainage and finish improvements, and geotechnical observation and testing. The geotechnical engineering report will be intended to be in accordance with Sections 1803.2 through 1803.6 and J104.3 of the 2013 California Building Code (CBQ, and common geotechnical engineering practice in this area at this time under similar conditions. The following items will be addressed in the report: • Soil and groundwater conditions encountered, • Expansion potential of the soil, • liquefaction potential of the site, • Preparation of the site prior to grading, • Grading criteria, • Seismic coefficients for the site, • Total and differential settlement, • Resistance to lateral loads, • Subslab ground treatment, • Exterior concrete flatwork, • Utility trenches, • Surface drainage and finish improvements, • Geotechnical observation and testing. FEES We propose to perform the Geotechnical Engineering Investigation on a fixed -fee basis; Geotechnical Engineering Investigation $4,400.00 An advance retainer of $1,500.00 is requested. SCHEDULE AND CONDITIONS The fees and conditions of this proposal will remain in effect for a period of 90 days. It is anticipated that the field investigation can be scheduled within 15 working days of authorization (weather permitting), with the final report available approximately 20 working days after completion of field operations. Preliminary information can be provided to the client and design professionals as soon as it is available. 0A Miller Park Restroom Building 3 February 5, 2016 Gilroy, California Prior to initiating the subsurface investigation, Underground Service Alen will be contacted to locate utilities that fall within their scope of services. However, responsibility for accurate location of underground utilities lies with the client, and Earth Systems Pacific shall not be held responsible for damage resulting from the incomplete or inaccurate identification of underground utilities. If the client finds the proposed scope of work, terms (attached), and fees satisfactory, the return of the attached work order, signed and dated by the party responsible for payment, along with the requested retainer, will constitute authorization for work on the project to begin. This agreement can be terminated by either party upon notification in writing. Earth Systems Pacific's responsibility for the project will end upon completion of the services described herein or termination of the agreement, unless authorization to perform additional work and agreement for payment thereof is provided by the client. Thank you for your consideration of this proposal. If you have any questions or require additional information, please feel free to contact this office at your convenience. Sincerely, Earth 50s George Bar rktt, GE 2309 Senior Vice President Attachments: Work Order Terms Doc. No.: 1602 -026.PRP /hw Earth Systems ftcifiC 500 Park Ceraer Drive, Ste.l MINOR HoBisLer, CA 95023 Ph: 831 -637 -2133 WORK ORDER esp @earttsystems.rnm www.earthsystems.com EARTH SYSTEMS PACIFIC (`CONSULTANTO) AND CLIENT AGREE TO A WORK ASSIGNMENT FOR EARTH SYSTEMS PACIFIC AS FOLLOWS: Date: February 5, 2016 Doc. Number:1602 -026.PRP Name of Project: Miller Park Restroom Building Order Received by: Brett Faust Client Name: Bengal Engineering, Inc., Attn.: Mr. Scott Onishuk, P.E. Client Address: 250 Big Sur Drive, Goleta, CA 93117 Location of Project: Miller Park, Between Carmel and Princevalle Streets, Gilroy, California Scope of Services: Geotechnical Engineering Investigation Fees to be Charged: $4,400.00, per Proposal dated February 5, 2016' Advance Retainer: $1,500.00 I have read and agree to all terms of this document, including the attached terrns for services (2/2015). AGREED TO AND ACCEPTED: Earth S cific DIR P i �rks R iSt tion No. 1000003643 Bengal Engineering, Inc. Client (Party responsible for payment) George J. BarnetttE 2309 Senior Vice President February 5, 2016 Date PLEASE RETURN A SIGNED COPY To EARTH SYSTEMS PACIFIC by Authorized Representative (please print) Signature and Title Date Telephone Number scott@bengalenizineering.com Email Address IF THE CLIENT DOES NOT OWN THE PROPERTY, PLEASE FILL IN THE PROPERTY OWNER'S NAME AND ADDRESS: Name: Add Rates are subject to change due to changes in prevailing wage law or its application. In the event that it is determined or alleged that Prevailing Wage law applies to any additional aspect of the project, the client agrees to pay Earth Systems Pacific (Consultant) any and all additional compensation necessary to adjust Consultant's wage, to pay any penalties that may be levied against Consultant due to alleged noncompliance with the Prevailing Wage law, and to pay for apprentices, supervision, certified payrolls, and other administrative costs as necessary to comply with Prevailing Wage Law. In the event that work thought to be subject to prevailing wage is determined not to be subject to prevailing wage, no refund of fees will be given. January 2016 Fee Schedule 1. INVESTIGATION, MONITORING & INSPECTION if the services include monitoring or inspection of soil, construction and /or materials, Client shall authorize and pay for Consultant to provide sufficient observation and professional inspection to permit Consultant to form opinions according to accepted statistical sampling methods as to whether the work has been performed in accordance with recommendations. Such opinions, while statistically valid, do not guaranty uniformity of conditions or materials. Similarly, soils and geology investigations do not guaranty uniformity of subsurface conditions. Client hereby represents and warrants that it has provided and shall provide to Consultant all information and sufficient advance notice necessary in order for Consultant to perform the appropriate level of services. No statement or action of Consultant can relieve Client's contractors of their obligation to perform their work properly. Consultant has no authority to stop the work of others. 2. SITE ACCESS & UTILITIES Client has sole responsibility for securing site access and locating utilities. 3. BILLING AND PAYMENT Client will pay Consultant the proposal amount or, if none is stated, according to the fee schedule attached to the proposal. Payment is due on presentation of invoices, and is delinquent if Consultant has not received payment within thirty (30) days from date of an invoice. Client will pay an additional charge of 1112 (1.5) percent per month (or the maximum percentage allowed by law, whichever is lower) on any delinquent amount, excepting any portion of the invoiced amount that is disputed in good faith. Each payment will first be applied to accrued interest, costs and fees and then to the principal unpaid amount. All time spent and expenses incurred (including any in -house or outside attorney's fees) in connection with collection of any delinquent amount will be paid by the Client to Consultant per Consultant's current fee schedule. Services to be performed by Consultant hereunder which are not set forth in this proposal and /or Work order are additional services. Any additional services provided by Consultant shall be subject to the terms of this contract and charged per Consultant's current fee schedule. 4. OWNERSHIP OF DOCUMENTS Consultant owns all documents it creates and grants Client limited license to use the documents for the purposes stated in the documents. Consultant reserves the right to withhold delivery of documents to Client until payment in full of current invoices has been received. S. TERMINATION This agreement may be terminated by either party effective 7 days from the date of written notice, or if the client suspends the work for three (3) months. In the event of termination, Consultant will be paid for services performed prior to the date of termination plus reasonable termination expenses. If Consultant has not received payment for any invoice within 30 days from the date of the invoice, or in the event of anticipatory breach by Client, Consultant may suspend performance of its services immediately and may terminate this contract. 6. RISK ALLOCATION In order for Client to obtain the benefit of a fee which includes a lesser allowance for compensating Consultant for its litigation risk, Client agrees to indemnify, hold harmless and defend Consultant, its agents, employees, or officers, from and against any and all loss, claim, expenses, including attorney's fees, injury, damages, liability or costs arising out of non - design services (i.e., services other than as defined by Civil Code Section 2784) performed by Consultant on this project, except where such loss injury, damage, liability, cost, expenses or claims are the result of the sole negligence or willful misconduct of Consultant. Regarding any loss due to the negligence or willful misconduct of Consultant, or any loss due to design defects, Client agrees to limit the total aggregate liability of Consultant, its agents, employees, and officers to Client, and to all construction contractors and subcontractors on the entire project, to the greater of $25,000.00 or total fees charged by Consultant. Client further agrees to require of the contractor and his subcontractors an identical limitation of Consultant's liability for damage suffered by the contractor or the subcontractor arising from any alleged breach or negligence of Consultant. You should consult with an attorney experienced in construction contracts and litigation regarding this provision. 7. HAZARDOUS MATERIALS Consultant is responsible only for hazardous materials brought by Consultant onto the site. Client retains ownership and responsibility in all respects for other hazardous materials and associated damage. B. ASSIGNS AND THIRD PARTIES Neither the client nor Consultant may delegate, assign or transfer his duties or %rights in this Agreement without the written consent of the other party. This Agreement is intended only to benefit of the parties hereto. No person who is not a signatory to this agreement shall have any rights hereunder to rely on this contract or on any of Consultant's services or reports without the express written authorization of Consultant. 9. GOVERNING LAW, SURVIVAL AND FORUM SELECTION The contract shall be governed by laws of the Federal Government. If any of the provisions contained in this agreement are held invalid, the enforceability of the remaining provisions will not be impaired. Limitations of liability, indemnities, representations and warranties by Client will survive termination of this agreement. The signatories represent and warrant that they are authorized by the entities on whose behalf they sign to enter into this contract and that their principals have filed fictitious business name statements, if required. All disputes between Consultant and client related to this agreement will be submitted to the court of the county where Consultant's principal place of business is located and client waives the right to remove the action to any other county or judicial jurisdiction. 2/2015 HANDWRITTEN CHANGES NOT VALID Page 2 EXHIBIT "C" MILESTONE SCHEDULE N/A 4835- 2267 -0361v1 _ 1 LAC104706083 EXHIBIT "D" PAYMENT SCHEDULE Bengal Engineering will be paid monthly for services performed pursuant to this contract and invoices. 4835 - 2267 -0361v1 LAC\04706G83 CERTIFICATE OF LIABILITY INSURANCE DATE 09 /02/2016I� 09/02/2016 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). PRODUCER Tina Jackson Insurance Services, Inc CONTACT Tina Jackson NAME: MINE 8059662500 a N01:8055635328 ADDRL ESS: tins � I tins acksonins.com ADDR 3834 Pemm PI INSURERS AFFORDING COVERAGE NAIC # Santa Barbara, CA 93110 INSURERA: International Ins Co of Hannover 08/06 /2016 08 /06/2017 INSURED INSURERS: U.S. Specialty Insurance Company Bengal Engineering, Inc INSURERc.: Hanover Insurance Group INSURERD: The Hartford 250 Big Sur Drive Santa Barbara CA 93117 INSURER E: $ 300,000 INSURER F: MED EXP (Any one person) COVERAGES ' CERTIFICATE NUMBER: REVISION NUMBER: 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. INSK LTR TYPE OF INSURANCE ADDL SUER POLICYNUMBER POLICY EFF MM/DD POLICY EXP MMIDD LIMBS A X COMMERCIAL GENERAL LIABILITY Y Y I G012002813 -00 08/06 /2016 08 /06/2017 EACH OCCURRENCE $ 1,000,000 CLAIMS -MADE 7XI OCCUR _15A�ITGE TO RENTED PREMISES Ea occurrence $ 300,000 MED EXP (Any one person) $ 10,000 PERSONAL& ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2;000,000 POLICY ❑ PRO- JECT LOC PRODUCTS - COMP/OP AGG $ 21000,000 $ OTHER: C AUTOMOBILE LIABILITY AW3A50250500 12/12/15 12/12/16 EOMaBBIINdEDtSINGLE LIMIT $ 1,,000,000. X BODILY INJURY (Per person) $ ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS - BODILY INJURY (Per accident) $ X- PROPERTY DAMAGE Per accident $ HIRED NON -OWNED AUTOS ONLY X AUTOS ONLY UMBRELLALIAS OCCUR EACH OCCURRENCE 1$ P AGGREGATE $ XCESS LIAB CLAIMS -MADE ED__— I _RETENTION$ $ D WORKERSCOMPENSATION AND EMPLOYERS- LIABILITY ANYPROPRIETORIPARTNER/EXECUTIVE YIN OFFICER/MEMBEREXCLUDED? (Mandatory In NH) NIA 72WEC9783OH -003 05/15/16 05/15/17 X STATUTE ERH E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE' $ 1,000,000 If yyes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - .POLICY LIMIT �.$. _ ..1 ,000,000 B Professional Liability USS1627037 09/17/1 09/17/17 $1,000,000 Per [aim Retroactive 9/17/97 $2,000,000 Aggregate DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is required) City of Gilroy, its officials, officers and employees are listed as Additional Insured in respects to general " liability. Coverage is primary and non - contributory. Waiver of subrogation applies. "structural engineering assessment on CIP projects" t,tK'IIrIGAit MULUtK GANGtLLAt1UN City of Gilroy SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 7351 Rosanna Street ACCORDANCE WITH THE POLICY PROVISIONS. Gilroy, CA 95020 AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) ©1 The ACORD name and logo are registered marks of ACORD All rights reserved. POLICY NUMBER: MP0004008007195 COMMERCIAL GENERAL LIABILITY CG 20 37 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Location And Description Of Completed Operations Or Organization(s) City of Gilroy, its officers, elected and appointed employees and agents 7351 Rosanna St Gilroy, CA 95020 THIS INSURANCE SHALL BE PRIMARY AND NON- CONTRIBUTORY, BUT ONLY IN THE EVENT OF A NAMED INSURED'S SOLE NEGLIGENCE. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. 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, 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 the Schedule of this endorsement performed for that additional insured and included in the "products- completed operations hazard ". However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 37 0413 © Insurance Services Office, Inc., 2012 Page 1 of 1 INSURED Twenty /Mile Insurance Services, Binder DATE: 08/10/2016 Commercial General Liability (Occurrence) form [ISO 12/07] including products & Completed Operations Deductible: $5,000.00 per occurence including loss adjustment expenses $1,000,000.00 Occurrence / $2,000,000.00 General Aggregate / $2,000,000.00 Product Aggregate Personal Injury $1,000,000.00 Fire Damage Legal Liability $50,000.00 Medical Payments $5,000.00 TERMS AND CONDITIONS Producer / Broker is responsible for all surplus lines filings, taxes and fees. You are authorized to instruct your agent that Certificates of Insurance will be accepted subject to the following criteria: The licensed insurance producer is authorized to issue certificates of insurance if this policy is written. The certificate will be an accurate representation of the coverage form. They are not authorized to strike out the "will endeavor" clause. They may not type additional wording of any kind except for explanatory wording in the "description" area of the certificate. Any modification of the ACORD Certificate of Insurance, or the issuance of a non - ACORD Certificate of Insurance is not permitted. Certificates of Insurance do not amend, extend or otherwise alter coverage afforded under this policy. The Company does not recognize Certificates of Insurance as endorsements or policy change requests. COVERAGES. EXCLUSIONS AND RESTRICTIONS DESCRIPTION OF FORM: [ X ] Commercial General Liability (Occurrence) Form (ISO 12/07) including Products / Completed Operations with defense in addition to the limit of liability. [ ] Commercial General Liability (Occurrence) Form (ISO 12/07) including Products / Completed Operations with defense included in the limit of liability. AMENDATORY ENDORSEMENTS: Form A Please see attached Form A ADDITIONAL ENDORSEMENTS: Service of (Suit) Process TMGL 203 1011 Additional Ins'd- Premises w /primary & non - contributory wording TMGL,172 1011 Additional Ins'd- Comp. Operations- Residential w /primary & non - contributory TMGL 175 1011 Exclusion- Colorado Operations CG 2134 0187 Page:1 INSURED PHONE: WORK: Bengal Emgineering Inc 250 Big Sur Ave Goleta, CA 93117 - BINDER# DESCRIPTION OF OPERATION General Liability FROM: 08 /06/2016 1 112:01 pm TO: 09/05/2016 1 X 12:01 am POLICY # IG012002813 -00 EFFECTIVE: 08/06/2016 LIMITS COMPANY Int. Ins Co. of Hannover EXPIRATION: 08/06/2017 Commercial General Liability (Occurrence) form [ISO 12/07] including products & Completed Operations Deductible: $5,000.00 per occurence including loss adjustment expenses $1,000,000.00 Occurrence / $2,000,000.00 General Aggregate / $2,000,000.00 Product Aggregate Personal Injury $1,000,000.00 Fire Damage Legal Liability $50,000.00 Medical Payments $5,000.00 TERMS AND CONDITIONS Producer / Broker is responsible for all surplus lines filings, taxes and fees. You are authorized to instruct your agent that Certificates of Insurance will be accepted subject to the following criteria: The licensed insurance producer is authorized to issue certificates of insurance if this policy is written. The certificate will be an accurate representation of the coverage form. They are not authorized to strike out the "will endeavor" clause. They may not type additional wording of any kind except for explanatory wording in the "description" area of the certificate. Any modification of the ACORD Certificate of Insurance, or the issuance of a non - ACORD Certificate of Insurance is not permitted. Certificates of Insurance do not amend, extend or otherwise alter coverage afforded under this policy. The Company does not recognize Certificates of Insurance as endorsements or policy change requests. COVERAGES. EXCLUSIONS AND RESTRICTIONS DESCRIPTION OF FORM: [ X ] Commercial General Liability (Occurrence) Form (ISO 12/07) including Products / Completed Operations with defense in addition to the limit of liability. [ ] Commercial General Liability (Occurrence) Form (ISO 12/07) including Products / Completed Operations with defense included in the limit of liability. AMENDATORY ENDORSEMENTS: Form A Please see attached Form A ADDITIONAL ENDORSEMENTS: Service of (Suit) Process TMGL 203 1011 Additional Ins'd- Premises w /primary & non - contributory wording TMGL,172 1011 Additional Ins'd- Comp. Operations- Residential w /primary & non - contributory TMGL 175 1011 Exclusion- Colorado Operations CG 2134 0187 Page:1 Twenty Mile Insurance Services, Waiver of Transfer of Right Deductible Endorsement Exclude your work involving bridges, canals Exclude construction mgrs E &O, exclude Arch & Eng E &O 1 MM in prof E &O limits required NOTICE Binder DATE: 08/10/2016 INSURED PHONE: WORK: Bengal Emgineering Inc 250 Big Sur Ave Goleta, CA 93117- CG 2404 1093 CG 0300 0196 Please see attached Rancho Pacific Invoice * *Minimum Earned: 25% of Premium + Fully Earned Fees ** NO Flat Cancellations. $25 for a return check. SUMMARY DISCLOSURE PRHWUNt 7.500.00 Our authorization or binder is based on the forms and endorsements indicated and does not attempt to comply with the specifications shown or implicated on the application. Please review the above terms and conditions carefully as they may not provide coverages or terms you requested. Page:2