Agreement_Professional Services_FEDERAL_Final.pdf

ATTACHMENT B

[THIS TEMPLATE IS FOR FEDERAL PROFESSIONAL SERVICES AGREEMENTS]

PROFESSIONAL SERVICES AGREEMENT NO. [#]

BETWEEN

THE CONTRA COSTA TRANSPORTATION AUTHORITY

AND

[INSERT BUSINESS/AGENCY NAME]

NOTE to the Preparer: Please refer to LAPM for Exhibit 10-C (to use as a guide for the RFP and current agreement requirements) and Exhibit 10-A (to ensure all required documentation is submitted to Caltrans Audits & Investigations and that the agreement is not executed until they have completed their review [for contracts over $150k]).

http://www.dot.ca.gov/hq/LocalPrograms/lam/forms/lapmforms.htm

This Agreement No. [#] is made and entered into as of this [insert day] day of [insert month], [insert year] (Agreement), by and between the Contra Costa Transportation Authority, a transportation authority established under Public Utilities Code Sections 180000 et seq. with its principal place of business at 2999 Oak Road, Suite 100, Walnut Creek, CA 94597 (Authority), and [insert business/agency name], a [insert type of entity – corporation, partnership, sole proprietorship or other legal entity] with its principal place of business at [insert address] ([Contractor or Consultant]). The Authority and [Contractor or Consultant] are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS

A. The Authority is an agency organized under the laws of the State of California and is in need of professional services for the following project:

[insert full project name] (Project [insert project number]) (Project).

B. [Contractor or Consultant] is duly licensed and has the necessary qualifications to provide such services.

C. [Contractor or Consultant] desires to perform and assume responsibility for the provision of certain professional services required by the Authority on the terms and conditions set forth in this Agreement.

http://www.dot.ca.gov/hq/LocalPrograms/lam/forms/lapmforms.htm

Agreement No. [#] [insert business/agency name] [insert agreement date]

D. The Authority desires to engage [Contractor or Consultant] to render such services for the Project as set forth in this Agreement.

E. The Parties desire by this Agreement to establish the terms for the Authority to retain [Contractor or Consultant] to provide the services described herein.

F. This Agreement is wholly or partially funded by federal funds administered by the California Department of Transportation (Caltrans) on behalf of the Federal Highway Administration (FHWA).

AGREEMENT

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services and Additional Services

a. [Contractor or Consultant] promises and agrees to furnish to the Authority all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional services necessary for the full and adequate completion of the Project consistent with the provisions of this Agreement (Services). The Services are more particularly described throughout this Agreement, including Exhibit A attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, any exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. All Services performed by [Contractor or Consultant] shall be subject to the sole and discretionary approval of the Authority, which approval shall not be unreasonably withheld.

b. At the Authority’s request, [Contractor or Consultant] may be asked to perform additional services not otherwise included in this Agreement, not included within the scope of services listed in Exhibit A attached hereto, and/or not customarily furnished in accordance with generally accepted practices applicable to [Contractor or Consultant]’s profession. If changes in the scope of services are required by the Authority, it shall be processed in the following manner: (1) the Authority shall communicate the requested additional services to [Contractor or Consultant] in writing; (2) if [Contractor or Consultant] has the capacity and ability to perform the additional services, [Contractor or Consultant] shall prepare a letter outlining the changes, which shall be forwarded to the Authority by [Contractor or Consultant] with a statement of estimated changes in fee or time schedule;

(3) an amendment to this Agreement shall be prepared by the Authority and executed by both Parties before performance of such additional services. [Contractor or Consultant]

[insert agreement date] shall not perform any additional services prior to execution of a written amendment to this Agreement memorializing the additional services. Once additional services are approved pursuant to a written amendment executed by the Parties, such additional services shall be deemed a part of the Services and shall be subject to the same terms and conditions of this Agreement as if the additional services had originally been included in the scope of services listed in Exhibit A. Any written amendment adding additional services to the scope of services listed in Exhibit A shall not render ineffective or invalidate unaffected portions of this Agreement.

c. As used herein, “additional services” mean: (1) any services, which are determined by the Authority to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary for [Contractor or Consultant] to perform at the execution of this Agreement; or (2) any work listed as additional services in Exhibit A attached hereto. [Contractor or Consultant] shall not perform, nor be compensated for, additional services without prior written authorization from the Authority and without an agreement between the Authority and [Contractor or Consultant] as to the compensation to be paid for such additional services. The Authority shall pay [Contractor or Consultant] for any approved additional services, pursuant to the compensation provisions herein, so long as such additional services are not made necessary through the acts or omissions of [Contractor or Consultant].

2. Allowable Costs and Payments [NOTE: THIS SECTION IS SET UP FOR

ACTUAL COST PLUS FIXED FEE – IF YOU INTEND ON USING A DIFFERENT

COMPENSATION FORMAT, PLEASE INSERT APPROPRIATE LANGUAGE FROM LAPM

EXHIBIT 10-R]

a. The method of payment for this Agreement will be based on actual cost plus a fixed fee. The Authority will reimburse [Contractor or Consultant] for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by [Contractor or Consultant] in performance of the work.

[Contractor or Consultant] will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved [Contractor or Consultant]’s Cost Proposal, unless additional reimbursement is provided for by an amendment to this Agreement. In no event, will [Contractor or Consultant] be reimbursed for overhead costs at a rate that exceeds the Authority’s approved overhead rate set forth in the Cost Proposal. In the event that the Authority determines that a change to the work from that specified in the Cost Proposal and Agreement is required, the Agreement time or actual costs reimbursable by the Authority

[insert agreement date] shall be adjusted by an amendment to the Agreement to accommodate the changed work.

The maximum total cost as specified in Section 2.i below shall not be exceeded, unless authorized by Agreement amendment.

b. The indirect cost rate established for this Agreement is extended through the duration of this Agreement. [Contractor or Consultant]’s agreement to the extension of the 1 year applicable period shall not be a condition or qualification to be considered for the work or Agreement award.

c. In addition to the allowable incurred costs, the Authority will pay [Contractor or Consultant] a fixed fee of [insert written dollar amount] dollars ($[insert dollar number amount]). The fixed fee is nonadjustable for the term of the Agreement, except in the event of a significant change in the scope-of-work and such adjustment is made by Agreement amendment.

d. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.

e. When milestone cost estimates are included in the approved Cost Proposal, [Contractor or Consultant] shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.

f. Progress payments will be made monthly in arrears based on Services provided and allowable incurred costs. A pro rata portion of [Contractor or Consultant]’s fixed fee will be included in the monthly progress payments. If [Contractor or Consultant] fails to submit the required deliverable items according to the schedule set forth in the scope of services, the Authority shall have the right to delay payment or terminate this Contract in accordance with the provisions of Section 21, Termination.

g. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this Agreement.

h. [Contractor or Consultant] will be reimbursed, as promptly as fiscal procedures will permit upon receipt by the Authority’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than forty-five (45) calendar days after the performance of work for which [Contractor or Consultant] is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for in the approved Cost Proposal and shall reference this Agreement number and project title. The final invoice must contain the final cost and all

[insert agreement date] credits due to the Authority including any equipment purchased under the provisions of Section 27 (Equipment Purchase) of this Agreement. The final invoice shall be submitted within sixty (60) calendar days after completion of [Contractor or Consultant]’s work.

Invoices shall be mailed to the Authority’s Contract Administrator at:

Contra Costa Transportation Authority 2999 Oak Road, Suite 100 Walnut Creek, CA 94597

Attn: Contract Administrator

i. The total amount payable by the Authority including the fixed fee shall not exceed [insert written dollar amount] dollars ($[insert dollar number amount]).

j. The rates may be adjusted annually to reflect [Contractor or Consultant]’s adjustments to individual compensation and for personnel subject to predetermined increases to prevailing wage rates established under the California Labor Code. To request a change in rates, [Contractor or Consultant] shall submit a written request to the Authority no later than thirty (30) days of the requested effective date.

[Contractor or Consultant] shall obtain the Authority’s approval in writing prior to any rate increase, which shall not exceed the average Consumer Price Index (CPI-U) for the San Francisco-Oakland-San Jose region for the last calendar year.

k. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates, are reimbursable.

3. Funding Requirements

a. It is mutually understood between the Parties that this Agreement may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both Parties, in order to avoid program and fiscal delays that would occur if the Agreement were executed after that determination was made.

b. This Agreement is valid and enforceable only if sufficient funds are made available to the Authority for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the federal government, State Legislature, or the Authority governing board that may affect the provisions, terms, or funding of this Agreement in any manner.

[insert agreement date]

c. It is mutually agreed that if sufficient funds are not appropriated by the Authority, this Agreement may be amended to reflect any reduction in funds.

d. The Authority has the option to void the Agreement under the thirty (30)-day termination clause pursuant to Section 20, or by mutual agreement to amend the Agreement to reflect any reduction of funds.

4. Retention of Funds

a. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section.

[AUTHORITY MUST INCLUDE ONE OF B, C, OR D, DELETE THE OTHER TWO AND

RENUMBER]

b. The Authority shall hold retainage of five percent (5%) from [Contractor or Consultant] and shall make prompt and regular incremental acceptances of portions, as determined by the Authority, of the contract work, and pay retainage to [Contractor or Consultant] based on these acceptances. [Contractor or Consultant], or subconsultant, shall return all monies withheld in retention from a subconsultant within thirty (30) days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Authority. Federal law (49 CFR 26.29) requires that any delay or postponement of payment over thirty (30) days may take place only for good cause and with the Authority’s prior written approval. Any violation of this provision shall subject the violating [Contractor or Consultant] or subconsultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to [Contractor or Consultant] or subconsultant in the event of a dispute involving late payment or nonpayment by [Contractor or Consultant], deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE [Contractor or Consultant] and subconsultants.

c. No retainage will be withheld by the Authority from progress payments due [Contractor or Consultant]. Retainage by [Contractor or Consultant] or subconsultants is prohibited, and no retainage will be held by [Contractor or Consultant] from progress due subconsultants. Any violation of this provision shall subject the violating [Contractor or Consultant] or subconsultants to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code. This requirement shall not

[insert agreement date] be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to [Contractor or Consultant] or subconsultant in the event of a dispute involving late payment or nonpayment by [Contractor or Consultant] or deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE [Contractor or Consultant] and subconsultants.

d. No retainage will be held by the Authority from progress payments due [Contractor or Consultant]. Any retainage held by [Contractor or Consultant] or subconsultants from progress payments due subconsultants shall be promptly paid in full to subconsultants within thirty (30) days after the subconsultant’s work is satisfactorily completed. Federal law (49 CFR 26.29) requires that any delay or postponement of payment over the thirty (30) days may take place only for good cause and with the Authority’s prior written approval. Any violation of this provision shall subject the violating [Contractor or Consultant] or subconsultant to the penalties, sanctions and other remedies specified in Section 7108.5 of the Business and Professions Code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to [Contractor or Consultant] or subconsultant in the event of a dispute involving late payment or nonpayment by [Contractor or Consultant], deficient subconsultant performance, or noncompliance by a subconsultant. This provision applies to both DBE and non-DBE [Contractor or Consultant] and subconsultants.

5. Retention of Records/Audit

For the purpose of determining compliance with Government Code § 8546.7, [Contractor or Consultant], subconsultants, and the Authority shall maintain all books, documents, papers, accounting records, Independent Certified Public Accountant (CPA) Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the Agreement including, but not limited to, the costs of administering the Agreement. All parties, including [Contractor or Consultant]’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the Agreement period and for three (3) years from the date of final payment under the Agreement. The Authority, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under federal laws or regulations (including the basis of federal funding in whole or in part) shall have access to any books, records, and documents of [Contractor or Consultant], subconsultants, and [Contractor or Consultant]’s Independent CPA, that are pertinent to the Agreement for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.

[insert agreement date]

6. Audit Review Procedures

a. Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by the Authority’s Chief Financial Officer.

b. Not later than thirty (30) days after issuance of the final audit report, [Contractor or Consultant] may request a review by the Authority’s Chief Financial Officer of unresolved audit issues. The request for review shall be submitted in writing.

c. Neither the pendency of a dispute nor its consideration by the Authority will excuse [Contractor or Consultant] from full and timely performance, in accordance with the terms of this Agreement.

d. [Contractor or Consultant] and subconsultant agreements, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is [Contractor or Consultant]’s responsibility to ensure federal, the Authority, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The agreement, cost proposal, and ICR shall be adjusted by [Contractor or Consultant] and approved by the Authority Contract Administrator to conform to the audit or review recommendations. [Contractor or Consultant] agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by the Authority at its sole discretion. Refusal by [Contractor or Consultant] to incorporate audit or review recommendations, or to ensure that the federal, the Authority or local governments have access to CPA work papers, will be considered a breach of the Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.

e. [Contractor or Consultant]’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by Caltrans Audits and Investigation (A&I).

Caltrans A&I, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by [Contractor or Consultant] and approved by the Authority’s Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by [Contractor or Consultant] to incorporate the Work Paper

[insert agreement date]

Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.

1. During the Caltrans A&I’s review of the ICR audit work papers created by [Contractor or Consultant]’s independent CPA, Caltrans A&I will work with the CPA and/or [Contractor or Consultant] toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If Caltrans A&I identifies significant issues during the review and is unable to issue a cognizant approval letter, the Authority will reimburse [Contractor or Consultant] at an accepted ICR until a Federal Acquisition Regulation (FAR) compliant ICR {e.g. 48 CFR Part 31; Generally Accepted Auditing Standards (GAGASs); Cost Accounting Standards (CAS), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials Audit Guide; and other applicable procedures and guidelines is received and approved by A&I. Accepted rates will be as follows:

a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.

b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.

c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.

2. If Caltrans A&I is unable to issue a cognizant letter per subsection e.1 above, Caltrans A&I may require [Contractor or Consultant] to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. Caltrans A&I will then have up to six (6) months to review [Contractor or Consultant]’s and/or the independent CPA’s revisions.

3. If [Contractor or Consultant] fails to comply with the provisions of this subsection e, or if Caltrans A&I is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in subsection e.1 above for all rendered Services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement.

[insert agreement date]

4. [Contractor or Consultant] may submit to the Authority final invoice only when all of the following items have occurred: (1) Caltrans A&I accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of the Authority; and (3) Caltrans A&I has issued its final ICR review letter. [Contractor or Consultant] must submit its final invoice to the Authority no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this Agreement and all other agreements executed between the Parties, either as a prime or subconsultant, with the same fiscal period ICR.

7. Performance Period

a. This Agreement shall go into effect on [insert date], contingent upon approval by the Authority, and [insert date] shall commence work after the Notification to Proceed (NTP) by the Authority’s Contract Administrator. This Agreement shall end on [insert date], unless extended by written amendment. The Authority shall have the unilateral option, at its sole discretion, to renew this Agreement for no more than two (2) additional one (1)-year terms.

b. [Contractor or Consultant] is advised that any recommendation for the Agreement award is not binding on the Authority until this Agreement is fully executed and approved by the Authority.

c. The NTP shall set forth the date of commencement of work.

[Contractor or Consultant] shall not proceed with performance of any Services under this Agreement unless and until the Authority provides the NTP. [Contractor or Consultant] shall meet any established schedules and deadlines as specified in Exhibit C. [Contractor or Consultant] shall perform all Services hereunder as expeditiously as is consistent with professional skill and care, as well as the orderly progress of the Project work so as not to be the cause, in whole or in part, of delays in the completion of the Project or in the achievement of any Project milestones, as provided herein. Specifically, [Contractor or Consultant] shall perform its Services so as to allow for the full and adequate completion of the Project within the time required by the Authority and within any completion schedules adopted for the Project. [Contractor or Consultant] agrees to coordinate with the Authority’s staff, contractors and consultants in the performance of the Services, and shall be available to the Authority’s staff, contractors and consultants at all reasonable times.

d. [Contractor or Consultant] shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by the Authority’s Contract Administrator.

[insert agreement date]

8. Delays in Performance

a. Neither Party shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.

b. Should such circumstances occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.

9. Compliance with Law

a. [Contractor or Consultant] shall comply with all applicable laws, ordinances, codes and regulations of the federal, State and local government, including the California Division of Occupational Safety and Health requirements.

b. If required, [Contractor or Consultant] shall assist the Authority, as requested, in obtaining and maintaining all permits required of [Contractor or Consultant] by federal, State and local regulatory agencies.

c. If applicable, [Contractor or Consultant] is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of its Services or operations performed under this Agreement.

10. Standard of Care

[Contractor or Consultant] shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the Services in the same discipline in the State of California, and shall be responsible to the Authority for damages sustained by the Authority and delays to the Project as specified in the indemnification provision of this Agreement. Without limiting the foregoing, [Contractor or Consultant] shall be fully responsible to the Authority for any increased costs incurred by the Authority as a result of any such delays to the Project. [Contractor or Consultant] represents and maintains that it is skilled in the professional calling necessary to perform the Services. [Contractor or Consultant] warrants and represents that all of its employees, experts and subconsultants

[insert agreement date] shall have sufficient skill and experience to perform the Services assigned to them. Finally, [Contractor or Consultant] represents that it, its employees, experts and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services assigned to or rendered by them and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, [Contractor or Consultant] shall perform, at its own cost and expense and without reimbursement from the Authority, any services necessary to correct errors or omissions, which are caused by [Contractor or Consultant]’s failure to comply with the standard of care provided for herein. Any employee or subconsultant who is determined by the Authority to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee or subconsultant who fails or refuses to perform the Services in a manner acceptable to the Authority, shall be promptly removed from the Project by [Contractor or Consultant] and shall not be re-employed to perform any of the Services or to work on the Project.

11. Key Personnel

[Contractor or Consultant] has represented to the Authority that certain additional key personnel and subconsultants will perform the Services under this Agreement. Should one or more of such personnel or subconsultants become unavailable, [Contractor or Consultant] may substitute others of at least equal competence upon written approval of the Authority. In the event that the Parties cannot agree as to the substitution of key personnel or subconsultants, the Authority shall be entitled to terminate this Agreement for cause.

As discussed below, any personnel or subconsultants who fail or refuse to perform the Services in a manner acceptable to the Authority, or who are determined by the Authority to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by [Contractor or Consultant] at the request of the Authority. The key personnel and subconsultants for performance of this Agreement are as follows:

Name Title License Number (if applicable) [insert first last name] [insert title] [insert license number] [insert first last name] [insert title] [insert license number]

[insert agreement date]

12. Subcontracting

a. Nothing contained in this Agreement or otherwise, shall create any contractual relation between the Authority and any subconsultant(s), and no subcontract shall relieve [Contractor or Consultant] of its responsibilities and obligations hereunder.

[Contractor or Consultant] agrees to be as fully responsible to the Authority for the acts and omissions of its subconsultant(s) and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by [Contractor or Consultant]. [Contractor or Consultant]’s obligation to pay its subconsultant(s) is an independent obligation from the Authority’s obligation to make payments to [Contractor or Consultant].

b. [Contractor or Consultant] shall perform the Services with resources available within its own organization and no portion of the Services shall be subcontracted without written authorization by the Authority’s Contract Administrator, except that, which is expressly identified in [Contractor or Consultant] Cost Proposal attached hereto.

c. [Contractor or Consultant] shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to [Contractor or Consultant] by the Authority.

d. All subcontracts entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement to be applicable to subconsultants.

e. Any substitution of subconsultant(s) must be approved in writing by the Authority’s Contract Administrator prior to the start of work by the subconsultant(s).

13. Independent Contractor

[Contractor or Consultant] is retained as an independent contractor and is not an employee of the Authority. No employee or agent of [Contractor or Consultant] shall become an employee of the Authority. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from the Authority as herein provided.

14. Insurance

[Contractor or Consultant] shall not commence work for the Authority until it has provided evidence satisfactory to the Authority it has secured all insurance required under this Section. In addition, [Contractor or Consultant] shall not allow any subconsultant to

[insert agreement date] commence work on any subcontract until it has secured all insurance required under this Section.

a. Commercial General Liability

(i) [Contractor or Consultant] shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the Authority.

(ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:

(1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent.

(iii) Commercial General Liability Insurance must include coverage for the following:

(1) Bodily Injury and Property Damage

(2) Personal Injury/Advertising Injury

(3) Premises/Operations Liability

(4) Products/Completed Operations Liability

(5) Aggregate Limits that Apply per Project

(6) Explosion, Collapse and Underground exclusion deleted

(7) Contractual Liability with respect to this Agreement

(8) Property Damage

(9) Independent [Contractor or Consultant]’s Coverage

(iv) The policy shall contain no endorsements or provisions limiting coverage for: (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.

(v) The policy shall give the Authority, its officials, officers, employees, agents and the Authority’s designated volunteers additional insured status using Insurance Services Office (ISO) endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.

[insert agreement date]

(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the Authority, and provided that such deductibles shall not apply to the Authority as an additional insured.

b. Automobile Liability

(i) At all times during the performance of the work under this Agreement, [Contractor or Consultant] shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the Authority.

(ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).

(iii) The policy shall give the Authority, its officials, officers, employees, agents and the Authority’s designated volunteers additional insured status.

(iv) The business automobile liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the Authority, and provided that such deductibles shall not apply to the Authority as an additional insured.

c. Workers’ Compensation/Employer’s Liability

(i) [Contractor or Consultant] certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code, which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.

(ii) To the extent [Contractor or Consultant] has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, [Contractor or Consultant] shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. [Contractor or Consultant] shall

[insert agreement date] require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this Section.

d. Professional Liability (Errors and Omissions)

At all times during the performance of the work under this Agreement [Contractor or Consultant] shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the Authority and in an amount indicated herein. This insurance shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of [Contractor or Consultant]. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.

e. Pollution Liability [DELETE SECTION IF NOT APPLICABLE]

(i) Pollution Liability is required should any of the Services involve pollutants or hazardous materials. Liability coverage shall include coverage for the environmental risks associated with the Project and expenses related to such, including bodily injury, property damage, on and off-site clean-up, transporting, carrying or storing pollutants, and coverage for non-owned disposal sites.

(ii) The policy shall give the Authority, its officials, officers, employees, agents and the Authority’s designated volunteers additional insured status.

(iii) The pollution liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the Authority, and provided that such deductibles shall not apply to the Authority as an additional insured.

f. Minimum Policy Limits Required

(i) The following insurance limits are required for the Agreement:

Combined Single Limit

Commercial General Liability $2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal injury, and property damage

Automobile Liability $1,000,000 combined single limit

[insert agreement date]

Employer’s Liability $1,000,000 per occurrence

Professional Liability $3,000,000 per claim and aggregate (errors and omissions)

Pollution Liability $1,000,000 each loss/$2,000,000 aggregate

[DELETE SECTION IF NOT APPLICABLE]

(ii) Defense costs shall be payable in addition to the limits.

(iii) Requirements of specific coverage or limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.

g. Evidence Required

Prior to execution of the Agreement, [Contractor or Consultant] shall file with the Authority evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.

h. Policy Provisions Required

(i) [Contractor or Consultant] shall provide the Authority at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that [Contractor or Consultant] shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, [Contractor or Consultant] shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the Authority at least ten (10) days prior to the effective date of cancellation or expiration.

(ii) The Commercial General Liability Policy, Automobile Liability Policy and Pollution Liability Policy shall each contain a provision stating that [Contractor

[insert agreement date] or Consultant]’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the Authority or any named insureds shall not be called upon to contribute to any loss.

(iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. [Contractor or Consultant] shall maintain such coverage continuously for a period of at least three (3) years after the completion of the work under this Agreement. [Contractor or Consultant] shall purchase a one (1) year extended reporting period if: A) the retroactive date is advanced past the effective date of this Agreement; B) the policy is cancelled or not renewed; or C) the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.

(iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the Authority, its officials, officers, employees, agents, and volunteers or shall specifically allow [Contractor or Consultant] or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. [Contractor or Consultant] hereby waives its own right of recovery against the Authority, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve [Contractor or Consultant] from liability in excess of such coverage, nor shall it limit [Contractor or Consultant]’s indemnification obligations to the Authority and shall not preclude the Authority from taking such other actions available to the Authority under other provisions of the Agreement or law.

i. Qualifying Insurers

(i) All policies required shall be issued by acceptable insurance companies, as determined by the Authority, which satisfy the following minimum requirements:

(1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place

[insert agreement date] insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.

j. Additional Insurance Provisions

(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by [Contractor or Consultant], and any approval of said insurance by the Authority, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by [Contractor or Consultant] pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.

(ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, the Authority has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the Authority will be promptly reimbursed by the [Contractor or Consultant] or the Authority will withhold amounts sufficient to pay premium from [Contractor or Consultant] payments. In the alternative, the Authority may cancel this Agreement.

(iii) The Authority may require [Contractor or Consultant] to provide complete copies of all insurance policies in effect for the duration of the Project.

(iv) Neither the Authority nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.

k. Subconsultant Insurance Requirements [Contractor or Consultant] shall not allow any subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the Authority that they have secured all insurance required under this Section. Policies of commercial general liability insurance provided by such subconsultants shall be endorsed to name the Authority as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by [Contractor or Consultant], the Authority may approve in writing different scopes or minimum limits of insurance for particular subconsultants.

15. Safety

a. [Contractor or Consultant] shall comply with California Occupational Safety and Health Administration (CAL-OSHA) regulations applicable to [Contractor or

[insert agreement date]

Consultant] regarding necessary safety equipment or procedures. [Contractor or Consultant] shall comply with safety instructions issued by the Authority Safety Officer and other Authority representatives. [Contractor or Consultant] personnel shall wear hard hats and safety vests at all times while working on the construction Project site.

b. Pursuant to the Authority contained in Section 591 of the Vehicle Code, the Authority has determined that such areas are within the limits of the Project and are open to public traffic. [Contractor or Consultant] shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. [Contractor or Consultant] shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.

c. Any subcontract entered into as a result of this Agreement, shall contain all of the provisions of this Section.

d. [Contractor or Consultant] must have a CAL-OSHA permit(s), as outlined in California Labor Code Sections 6500 and 6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches ,which are five feet or deeper.

16. Indemnification

a. For all matters not arising out of [Contractor or Consultant]’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8) and to the fullest extent permitted by law, [Contractor or Consultant] shall defend (with counsel of the Authority’s choosing), indemnify and hold the Authority, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of [Contractor or Consultant], its officials, officers, employees, subconsultants or agents in connection with the performance of [Contractor or Consultant]’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. [Contractor or Consultant]'s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by [Contractor or Consultant], the Authority, its officials, officers, employees, agents, or volunteers.

[insert agreement date]

b. If [Contractor or Consultant]’s obligation to defend, indemnify, and/or hold harmless arises out of [Contractor or Consultant]’s performance of “design professional” services (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, [Contractor or Consultant]’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of [Contractor or Consultant], and, upon [Contractor or Consultant] obtaining a final adjudication by a court of competent jurisdiction, [Contractor or Consultant]’s liability for such claim, including the cost to defend, shall not exceed [Contractor or Consultant]’s proportionate percentage of fault.

17. California Labor Code Requirements

a. No [Contractor or Consultant] or subconsultant may be awarded an Agreement containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire term of this Agreement, including any subsequent amendments.

b. [Contractor or Consultant] shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages.