Attachment_D_-_Standard_-_SJCOG_Contract_Agreement.pdf

ATTACHMENT D

STANDARD SJCOG CONTRACT AGREEMENT

MASTER CONSULTANT AGREEMENT

BETWEEN

THE SAN JOAQUIN COUNCIL OF GOVERNMENTS

AND

CONSULTANT NAME

PROJECT NAME

PROJECT PHASE (E.G., PROJECT APPROVAL &

ENVIRONMENTAL DOCUMENT)

MASTER CONSULTANT AGREEMENT

BETWEEN

THE SAN JOAQUIN COUNCIL OF GOVERNMENTS

AND

CONSULTANT NAME

This CONSULTANT AGREEMENT (hereinafter “Agreement”), effective as of MONTH DAY, YEAR, is made and entered into by and between SAN JOAQUIN COUNCIL OF GOVERNMENTS a Joint Powers Authority established under California Government Code section 6500 et seq. (hereinafter “SJCOG”) and, CONSULTANT NAME (hereinafter “Consultant”);

I. Witnesseth

WHEREAS, pursuant to the most recent SJCOG Joint Powers Agreement, SJCOG is authorized and empowered to employ Consultants and specialists in the performance of its duties and functions; and

WHEREAS, SJCOG has determined that it is necessary and desirable to secure certain technical and professional services to prepare the PROJECT NAME AND PHASE; and

WHEREAS, Consultant represents it is qualified and willing to provide such services pursuant to the terms and conditions of this Agreement;

NOW, THEREFORE: The parties hereto do mutually agree as follows:

This Agreement is fully comprised of these terms and the attached exhibits which are incorporated herein by reference. The exhibits attached to this Agreement are:

Exhibit A - Work Plan Exhibit B - Project Team Exhibit C – Project Schedule and Deliverables Exhibit D - Compensation

There shall be no change in Consultant's Project Manager, or members of the project team, without prior written approval by SJCOG. The Project Manager shall be responsible for keeping SJCOG informed of the progress of the work and shall be available for meetings with SJCOG Board, and its formal committees.

Consultant shall perform all services required pursuant to this Agreement in the manner according to the standards currently observed by a competent practitioner of Consultant’s profession in California. All products of whatsoever nature which Consultant delivers to the

SJCOG pursuant to this Agreement shall be prepared in a professional manner and conform to the standards to quality normally observed by a person currently practicing in Consultant’s profession. Consultant shall assign only competent personnel to perform.

The Consultant shall document the results of all work to the satisfaction of SJCOG. This may include, but not be limited to, preparation of progress and final reports, calculations, plans, specifications, estimates, evaluations, and other records.

II. Statement of Work

Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to SJCOG the services described in Exhibit “A,” in accordance with the provisions contained in Exhibit “A,” and according to the schedule and budget identified in Exhibits “C” and “D.”

Consultant shall not be compensated for services outside the scope of Exhibit “A” unless otherwise agreed upon pursuant to Section VI of this Agreement.

III. Consultant’s Reports Or Meetings

A. Consultant shall submit progress reports at least once a month. The report should be sufficiently detailed for the Contract Administrator to determine, if consultant is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.

B. Consultant’s Project Manager shall meet with the San Joaquin Council of Government’s

Contract Administrator, as needed, to discuss progress on the contract.

IV. Performance Period

A. This contract shall go into effect on MONTH DAY, YEAR contingent upon approval by the San Joaquin Council of Governments (SJCOG), and consultant shall commence work after notification to proceed by SJCOG’s Contract Administrator. The contract shall end on MONTH DAY, YEAR, unless extended by contract amendment.

B. Consultant is advised that any recommendation for contract award is not binding on

SJCOG until the contract is fully executed and approved by SJCOG

V. Allowable Costs and Payments

A. The method of payment for this contract will be based on actual costs plus a fixed fee.

SJCOG will reimburse Consultant in performance of the work. 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 Consultant Cost Proposal unless additional reimbursement is provided for by contract amendment.

In no event, will Consultant be reimbursed for overhead costs at a rate that exceeds SJCOG’s approved overhead rate set forth in the Cost Proposal. In the event, that SJCOG determines that a change to the work from that specified in the Cost Proposal and contract is required, the contract time or actual costs reimbursable by SJCOG shall be adjusted by contract amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I” shall not be exceeded, unless authorized by contract amendment.

B. The indirect cost rate established for this agreement is extended through the duration of this specific agreement. Consultant’s agreement to the extension of the one-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, SJCOG will pay Consultant a fixed fee of

$XXXX. The fixed fee is nonadjustable for the term of the contract, except in the event of a significant change in the scope of work and such adjustment is made by contract 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, 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 Consultant’s fixed fee will be included in the monthly progress payments. If Consultant fails to submit the required deliverable items according to the schedule set forth in the Statement of Work, SJCOG shall have the right to delay payment or terminate this Contract in accordance with the provisions of Article VI Termination.

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

H. Consultant will be reimbursed, as promptly as fiscal procedures will permit upon receipt by SJCOG’s Contract Administrator of itemized invoices in triplicate. Invoices shall be submitted no later than 45 calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this contract number and project title. Final invoice must contain the final cost and all credits due to SJCOG including any equipment purchased under the provisions of Article XI Equipment Purchase of this contract. The final invoice should be submitted within 60 calendar days after completion of Consultant's work. Invoices shall be mailed to SJCOG’s Contract Administrator at the following address:

San Joaquin Council of Governments

Attn: SJCOG STAFFPERSON 555 East Weber Avenue

Stockton, CA 95202

I. The total amount payable by SJCOG including the fixed fee shall not exceed $XXXX.

J. Salary increases will be reimbursable if the new salary is within the salary range identified in the approved Cost Proposal and is approved by SJCOG’s Contract Administrator. 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.

K. All subcontracts in excess of $25,000 shall contain the above provisions.

L. Billing Format and Content: Requisitions for payment shall refer to PROJECT NAME

AND PHASE, or as may be specified in a written notice by SJCOG. All billings shall be in the same format as Exhibit “D.” Specific budget category detail is given below:

1. Hourly Labor Rates: This project will be billed on an actual cost plus fixed fee basis, up to the Agreement maximum. All labor charges shall be billed on an hourly rate basis by class of employee, rate per hour, and a number of hours. (Anticipated personnel cost-of-living or merit increases, if any, should be reflected in the budget).

2. Subconsultant/Subcontractor Charges: All subconsultant/subcontractor billings (as applicable) shall identify the name of the subconsultant/subcontractor, the amount of work performed (as categorized in the budget), the reimbursement rate, the total amount billed, and the date and amount paid by Consultant. A copy of the sub consultant’s invoice is required.

3. Overhead: All overhead shall be included in the fixed billing rate.

4. Direct Costs: All direct costs billed shall be specifically identified. Any travel costs shall not exceed the per diem and mileage rates payable to SJCOG employees. Any direct costs not specifically identified in the Agreement budget cannot be reimbursed.

5. Fixed Fee: A pro rata portion of Consultant’s fixed fee will be included in the monthly progress payments.

M. Final billing shall be received by SJCOG no later than 45 days after the end date of this

Agreement. This Agreement will be closed no later than 90 days following the end date of this Agreement.

VI. Termination

A. The San Joaquin Council of Governments reserves the right to terminate this contract upon thirty (30) calendar days written notice to consultant with the reasons for termination stated in the notice.

B. The San Joaquin Council of Governments may terminate this contract with consultant should consultant fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, consultant may proceed with the work in any manner deemed proper by SJCOG. If SJCOG terminates this contract with consultant, the San Joaquin Council of Governments shall pay consultant the sum due to consultant under this contract prior to termination, unless the cost of completion to SJCOG exceeds the funds remaining in the contract. In which case the overage shall be deducted from any sum due consultant under this contract and the balance, if any, shall be paid to consultant upon demand.

C. The maximum amount for which the San Joaquin Council of Governments shall be liable if this contract is terminated is $XXXX.

VII. Cost Principles and Administrative Requirements

A. Consultant agrees that the Contract Cost Principles and Procedures, 48 CFR, Federal

Acquisition Regulations System, Chapter 1, Part 31.000 et seq., shall be used to determine the cost allowability of individual items.

B. Consultant also agrees to comply with federal procedures in accordance with 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.

C. Any costs for which payment has been made to consultant that are determined by subsequent audit to be unallowable under 49 CFR, Part 18 and 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31.000 et seq., are subject to repayment by consultant to the San Joaquin Council of Governments.

D. All subcontracts in excess of $25,000 shall contain the above provisions.

VIII. Retention of Records/Audit

For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the contract pursuant to Government Code 8546.7; consultant, sub-consultants, and the San Joaquin Council of Governments shall maintain and make available for inspection all books, documents, papers, accounting records, and other evidence pertaining to the performance of the contract, including but not limited to, the costs of administering the contract. All parties shall make such materials available at their respective offices at all reasonable times during the contract period and for three years from the date of final payment under the contract. The State, State Auditor, the San Joaquin Council of Governments, FHWA, or any duly authorized representative of the Federal Government shall have access to any books, records, and documents of consultant and it’s certified public accountants (CPA) work papers that are pertinent to the contract and indirect cost rates (ICR) for audit, examinations, excerpts, and transactions, and copies thereof shall be furnished if requested. Subcontracts in excess of $25,000 shall contain this provision.

IX. Audit Review Procedures

A. Any dispute concerning a question of fact arising under an interim or post-audit of this contract that is not disposed of by agreement shall be reviewed by the San Joaquin Council of Government’s Chief Financial Officer.

B. Not later than 30 days after issuance of the final audit report, consultant may request a review by the San Joaquin Council of Government’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.

C. Neither the pendency of a dispute nor its consideration by SJCOG will excuse consultant from full and timely performance, in accordance with the terms of this contract.

D. Consultant and sub-consultant contracts, including cost proposals and ICR, are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the contract, 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 consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The contract, cost proposal, and ICR shall be adjusted by consultant and approved by SJCOG’s contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the contract by this reference if directed by SJCOG at its sole discretion. Refusal by consultant to incorporate audit or review recommendations, or to ensure that the federal, state or local governments have access to CPA work papers, will be considered a breach of contract terms and cause for termination of the contract and disallowance of prior reimbursed costs.

X. Subcontracting

A. Nothing contained in this contract or otherwise, shall create any contractual relationship between the San Joaquin Council of Governments and any subconsultant(s), and no subcontract shall relieve consultant of its responsibilities and obligations hereunder.

Consultant agrees to be as fully responsible to SJCOG 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 consultant. Consultant’s obligation to pay its subconsultant(s) is an independent obligation from the San Joaquin Council of Government’s obligation to make payments to the consultant.

B. Consultant shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this contract shall be subcontracted without written authorization by the San Joaquin Council of Government’s Contract Administrator, except that, which is expressly identified in the approved Cost Proposal.

C. Consultant shall pay its subconsultants within ten (10) calendar days from receipt of each payment made to consultant by the San Joaquin Council of Governments.

D. Any subcontract in excess of $25,000 entered into as a result of this contract shall contain all the provisions stipulated in this contract to be applicable to subconsultants.

E. Any substitution of subconsultant(s) must be approved in writing by the San Joaquin

Council of Government’s Contract Administrator prior to the start of work by the subconsultant(s).

XI. Equipment Purchase

A. Prior authorization in writing, by the San Joaquin Council of Government’s Contract

Administrator, shall be required before consultant enters into any unbudgeted purchase order, or subcontract exceeding $5,000 for supplies, equipment, or consultant services.

Consultant shall provide an evaluation of the necessity or desirability of incurring such costs.

B. For purchase of any item, service, or consulting work not covered in consultant’s Cost

Proposal and exceeding $5,000 prior authorization by the San Joaquin Council of Government’s Contract Administrator; three competitive quotations must be submitted with the request, or the absence of bidding must be adequately justified.

C. Any equipment purchased as a result of this contract is subject to the following:

“consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is sold or traded in, the San Joaquin Council of Governments shall receive a proper refund or credit at the conclusion of the contract, or if the contract is terminated, consultant may either keep the equipment and credit SJCOG in an amount equal to its fair market value or sell such equipment at the best price obtainable at a public or private sale, in accordance with established SJCOG procedures; and credit SJCOG in an amount equal to the sales price.

If consultant elects to keep the equipment, fair market value shall be determined at consultant’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be obtained from an appraiser mutually agreeable to by the San Joaquin Council of Governments and consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by the San Joaquin Council of Governments.” 49 CFR, Part 18 requires credit to Federal funds when participating in equipment with a fair market value greater than $5,000 is credited to the project.

D. All subcontracts in excess of $25,000 shall contain the above provisions.

XII. State Prevailing Wage Rates

A. Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the work.

B. Any subcontract entered into as a result of this contract, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Article.

C. When prevailing wages apply to the services described in the scope of work, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov.

XIII. Conflict of Interest

A. Consultant shall disclose any financial, business, or other relationship with the San Joaquin Council of Governments that may have an impact upon the outcome of this contract, or any ensuing SJCOG construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this contract, or any ensuing SJCOG construction project, which will follow.

B. Consultant hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this contract.

C. Any subcontract in excess of $25,000 entered into as a result of this contract, shall contain all of the provisions of this Article.

XIV. Rebates, Kickbacks or Other Unlawful Consideration

Consultant warrants that this contract was not obtained or secured through rebates kickbacks or other unlawful consideration, either promised or paid to any the San Joaquin Council of Government’s employee. For breach or violation of this warranty, the San Joaquin Council of Governments shall have the right in its discretion; to terminate the contract without liability; to pay only for the value of the work actually performed; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback, or other unlawful consideration.

XV. Prohibition of Expending SJCOG State or Federal Funds for Lobbying

A. Consultant certifies to the best of his or her knowledge and belief that:

1. No state, federal or SJCOG appropriated funds have been paid, or will be paid by-or-on behalf of consultant to any person for influencing or attempting to influence an http://www.dir.ca.gov/ officer or employee of any state or federal agency; a Member of the State Legislature or United States Congress; an officer or employee of the Legislature or Congress; or any employee of a Member of the Legislature or Congress, in connection with the awarding of any state or federal contract; the making of any state or federal grant; the making of any state or federal loan; the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any state or federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any federal agency; a Member of Congress; an officer or employee of Congress, or an employee of a Member of Congress; in connection with this federal contract, grant, loan, or cooperative agreement; consultant shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying”, in accordance with its instructions.

B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

C. Consultant also agrees by signing this document that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000 and that all such sub-recipients shall certify and disclose accordingly.

XVI. Statement of Compliance

A. CONSULTANT’s signature affixed herein and dated, shall constitute a certification under penalty of perjury under the laws of the State of California that CONSULTANT has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.

B. During the performance of this Contract, Consultant and its subconsultants shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age (over 40), marital status, and denial of family care leave. Consultants and subconsultants shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultants and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 (a-f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Contract by reference and made a part hereof as if set forth in full. Consultant and its subconsultants shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.

XVII. Debarment and Suspension Certification

A. CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that CONSULTANT has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (non-procurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, director, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three

(3) years; does not have a proposed debarment pending, and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years. Any exceptions to this certification must be disclosed to SJCOG.

B. Exceptions will not necessarily result in denial of recommendation for the award but will be considered in determining CONSULTANT responsibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.

C. Exceptions to the Federal Government Excluded Parties List System maintained by the

General Services Administration are to be determined by the Federal Highway Administration.

XVIII. Funding Requirements

A. It is mutually understood between the parties that this contract 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 contract were executed after that determination was made.

B. This contract is valid and enforceable only if sufficient funds are made available to

SJCOG for the purpose of this contract. In addition, this contract is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or SJCOG governing board that may affect the provisions, terms, or funding of this contract in any manner.

C. It is mutually agreed that if sufficient funds are not appropriated, this contract may be amended to reflect any reduction in funds.

D. SJCOG has the option to void the contract under the 30-day termination clause pursuant to Article VI, or by mutual agreement to amend the contract to reflect any reduction of funds.

XIX. Term

Time is of the essence in this Agreement. The term of this Agreement is MONTH DAY, YEAR, through MONTH DAY, YEAR, unless an extension of time is granted in writing by SJCOG.

The various phases involved in this project shall be completed as indicated in Exhibit "C", Schedule and Deliverables. Notwithstanding any other provisions of this Agreement, the Consultant shall not have liability for or be deemed in breach because of delays caused by any factor outside of its reasonable control, including but not limited to natural disasters, pandemics, adverse weather, or acts of the Client, third parties, or governmental agencies.

During the performance of this Agreement, the representative project managers for SJCOG and Consultant will be:

SJCOG: NAME AND TITLE

Consultant: NAME AND TITLE

Consultant shall not assign any interest in this Agreement, and shall not transfer the same, without the prior written consent of SJCOG. No alteration, modification or deviation of the terms of this Agreement shall be valid unless made in writing and signed by both parties. No oral understanding or agreement not incorporated herein shall be binding on any of the parties.

SJCOG may request, at any time, amendments to this Agreement and will notify Consultant in writing regarding changes. Upon a minimum of ten (10) days notice, Consultant shall determine the impact on both time and compensation of such changes and notify SJCOG in writing. Upon agreement between SJCOG and Consultant as to the extent of these impacts on time and compensation, an amendment to this Agreement shall be prepared describing such changes.

Such amendments shall be binding on the parties if signed by SJCOG and Consultant and shall be effective as of the date of the amending document unless otherwise indicated.

XX. Contingent Fee

CONSULTANT warrants, by execution of this contract that no person or selling agency has been employed, or retained, to solicit or secure this contract upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, SJCOG has the right to annul this contract without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the contract price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.

XXI. Disputes

Not later than 30 days after completion of all deliverables necessary to complete the plans, specifications, and estimate, CONSULTANT may request a review by SJCOG Governing Board of unresolved claims or disputes, other than an audit. The request for review will be submitted in writing.

Except as otherwise provided in this Agreement, any dispute concerning a question of fact which is not disposed of by mutual agreement shall be decided by a court of competent jurisdiction in California.

XXII. Hold Harmless

Consultant agrees to indemnify, defend (upon request of SJCOG) and hold harmless SJCOG, its officers, agents, and employees from any and all actions, causes of action, claims, demands, costs, liabilities, judgments, penalties, losses, damages, and expenses of whatsoever kind and nature (including attorney's fees) for injuries to or death of any person or persons, or damage to property of third persons arising out of, pertaining to, or relating to the negligent acts, errors or omissions, recklessness, or willful misconduct of the Consultant, its subcontractors, sub-consultants or agents, and their respective employees in the performance of the work to be provided pursuant to this Agreement. The duty of Consultant to indemnify and defend as set forth herein is limited for design professional services as provided in section 2782.8 of the California Civil Code.

XXIII. Inspection of Work

Consultant, and any subcontractors, shall permit SJCOG the opportunity to review and inspect the project activities at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis.

XXIV. Safety

A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall comply with safety instructions issued by SJCOG Safety Officer and other SJCOG representatives.

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, LOCAL

AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. 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 contract, shall contain all of the provisions of this Article.

XXV. Insurance

On or before beginning any of the services or work called for by any term of this Agreement, Consultant, at its own cost and expense, shall procure, carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to SJCOG the insurance specified in subsections A through C below with insurers and under forms of insurance satisfactory in all respects to the SJCOG. Consultant shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Consultant has also been obtained for the subcontractor. Verification of this insurance shall be submitted and made part of this Agreement prior to execution.

A. Workers’ Compensation

Consultant shall, at Consultant’s sole cost and expense, procure and maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. Said Statutory Workers' Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than the amount required by law. In the alternative, Consultant may rely on a self-insurance program to meet these requirements provided that the program of self-insurance complies fully with the provisions of the California Labor Code. The insurer, if insurance is provided, or the Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation against SJCOG for loss arising from work performed under this Agreement. In signing this CONTRACT, the Consultant certifies under section 1861 of the California Labor Code that Consultant is aware of the Workers Compensation provisions contained in section 3700 et seq. of the Labor Code.

B. Commercial General and Automobile Liability Insurance

Consultant, at Consultant’s own cost and expense, shall procure and maintain commercial general and automobile liability insurance for the period covered by this Agreement in an amount not less than One Million Dollars ($1,000,000) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non-owned automobiles.

Coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) and Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1 (any auto). Each of the following shall be included in the insurance coverage or added as an endorsement to the policy:

1. SJCOG, its officers, employees, agents, and volunteers are to be covered as an additional insured with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insider’s general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied or used by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to SJCOG, its officers, employees, agents, or volunteers.

2. The insurance shall cover on an occurrence or an accident basis, and not on a claim made basis.

3. An endorsement must state that coverage is primary insurance and that no other insurance affected by SJCOG shall be called upon to contribute to a loss under the coverage.

4. Any failure of Consultant to comply with reporting provisions of the policy shall not affect coverage provided to SJCOG and its officers, employees, agents, and volunteers.

5. Insurance is to be placed with California-admitted insurers with a Best’s rating of no less than A: VII.

6. Notice of cancellation or non-renewal must be received by SJCOG at least thirty days prior to such change.

C. Professional Liability Insurance

Consultant, at Consultant’s own cost and expense, shall procure and maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than One Million Dollars ($1,000,000) per claim made and per policy aggregate covering the licensed professionals’ errors and omissions, as follows:

1. Any deductible or self-insured retention shall not exceed $150,000 per claim.

2. Notice of cancellation, material change, or non-renewal must be received by SJCOG at least thirty days prior to such change and shall be included in the coverage or added as an endorsement to the policy.

3. The following provisions shall apply if the professional liability coverages are written on a claim made form:

a) The retroactive date of the policy must be shown and must be before the date of the Agreement.

b) Insurance must be maintained, and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates.

c) If coverage is canceled or not renewed and it is not replaced with other claims made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. SJCOG shall have the right to exercise at the Consultant’s cost, any extended reporting provisions of the policy should the Consultant cancel or not renew the coverage.

d) A copy of the claim reporting requirements must be submitted to SJCOG prior to the commencement of any work under this Agreement.

D. Deductibles and Self-Insured Retentions

Consultant shall disclose the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, upon express written authorization of SJCOG’s Project Manager, Consultant may increase such deductibles or self-insured retentions with respect to SJCOG, its officers, employees, agents, and volunteers. SJCOG may condition approval of an increase in deductible or self-insured retention levels upon a requirement that Consultant procures a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that are satisfactory in all respects to each of them.

E. Notice of Reduction in Coverage

In the event that any coverage required under subsections A, B, or C of this section of the Agreement is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to SJCOG at Consultant’s earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage.

F. Additional and Alternative Remedies

In addition to any other remedies SJCOG may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, SJCOG may, at its sole option:

1. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;

2. Order Consultant to stop work under this Agreement or withhold any payment which becomes due to Consultant hereunder, or both stop work and withhold any payment until Consultant demonstrates compliance with the requirements hereof;

3. Terminate this Agreement.

Exercise of any of the above remedies, however, is an alternative to other remedies SJCOG may have and is not the exclusive remedy for Consultant‘s breach.

XXVI. Ownership of Data

Aerial photos, topographic mapping, tracings, plans, specifications, as-built plans, electronic files, technical data, evaluations, and all other documents prepared, assembled, or obtained by the Consultant under this Agreement shall be delivered to and become properties of SJCOG upon completion of the work pursuant to this Agreement. The basic survey notes and sketches, aerial photos, topographic maps, charts, computations, and other data assembled and prepared under this Agreement shall be made available, at any time, upon request to SJCOG without restriction or limitation on their use.

A. Upon completion of all work under this contract, ownership, and title to all reports, documents, plans, specifications, and estimates produce as part of this contract will automatically be vested in San Joaquin Council of Governments, and no further agreement will be necessary to transfer ownership to the San Joaquin Council of Governments. Consultant shall furnish the San Joaquin Council of Government all necessary copies of data needed to complete the review and approval process.

B. It is understood and agreed that all calculations, drawings, and specifications, whether in hard copy or machine-readable form, are intended for one-time use in the construction of the project for which this contract has been entered into.

C. Consultant is not liable for claims, liabilities, or losses arising out of, or connected with the modification, or misuse by the San Joaquin Council of Governments of the machine-readable information and data provided by Consultant under this contract;

further, Consultant is not liable for claims, liabilities, or losses arising out of, or connected with any use by the San Joaquin Council of Governments of the project documentation on other projects for additions to this project, or for the completion of this project by others, except only such use as may be authorized in writing by Consultant.

D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).

E. The San Joaquin Council of Governments may permit copyrighting reports or other agreement products. If copyrights are permitted; the agreement shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.

F. Any subcontract in excess of $25,000 entered into as a result of this contract, shall

G. Any and all reports published by Consultant shall acknowledge that it was prepared in cooperation with SJCOG. Articles, reports, or works reporting on the work provided for herein or on portions thereof which are published by Consultant shall contain in the forward, preface, or footnote the following statement:

“The contents of this report reflect the views of the author who is responsible for the facts and the accuracy of the data presented herein.

The contents do not necessarily reflect the official views or policies of the San Joaquin Council of Governments. This report does not constitute a standard, specification, or regulation.”

XXVII. Claims Filed by SJCOG’s Construction Contractor

A. If claims are filed by SJCOG’s construction contractor relating to work performed by

CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULTANT agrees to make its personnel available for consultation with

SJCOG’S construction contract administration and legal staff and for testimony, if necessary, at depositions and trial or arbitration proceedings.

B. CONSULTANT’s personnel that SJCOG considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from SJCOG. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this contract.

C. Services of CONSULTANT’s personnel in connection with SJCOG’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this contract in order to resolve the construction claims.

D. Any subcontract in excess of $25,000 entered into as a result of this contract, shall

XXVIII. Confidentiality of Data

A. All financial, statistical, personal, technical, or other data and information relative to

SJCOG’s operations, which are designated confidential by SJCOG and made available to CONSULTANT in order to carry out this contract, shall be protected by CONSULTANT from unauthorized use and disclosure.

B. Permission to disclose information on one occasion, or public hearing held by SJCOG relating to the contract, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.

C. CONSULTANT shall not comment publicly to the press or any other media regarding the contract or SJCOG’s actions on the same, except to SJCOG’s staff, CONSULTANT’s own personnel involved in the performance of this contract, at public hearings or in response to questions from a Legislative committee.

D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this contract without prior review of the contents thereof by SJCOG, and receipt of SJCOG’S written permission.

E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.

F. All information related to the construction estimate is confidential and shall not be disclosed by CONSULTANT to any entity other than SJCOG.

XXIX. National Labor Relations Board Certification

In accordance with Public Contract Code Section 10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.

XXX. Evaluation of Consultant

CONSULTANT’s performance will be evaluated by SJCOG. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the contract record.

XXXI. Equal Employment Opportunity/Nondiscrimination

Consultant shall comply with Title VI of the Civil Rights Act of 1964, as amended, and with the provisions contained in Title 49, Code of Federal Regulations (CFR), Part 21 through Appendix C, and 23 CFR 170.405(b). During the performance of this Agreement, Consultant, for itself, its assignees and successors in interest, agrees as follows:

A. Compliance with Regulations

Consultant shall comply with the regulations relative to nondiscrimination in federally-assisted programs of the United States Department of Transportation (hereinafter "DOT") 49 CFR 21, as they may be amended from time to time (hereinafter referred to as the “Regulations”), which are herein incorporated by reference and made a part of this Agreement.

B. Nondiscrimination

Consultant, with regard to the work performed by it during the Agreement, shall not discriminate on the grounds of race, religion, color, disability, sex, age, or national origin in the selection or retention of subcontractors, including procurements of materials and leases of equipment.

Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the Agreement covers a program set forth in Appendix B of the Regulations.

C. Solicitations for Subcontractors, including Procurements of Materials and Equipment

On all solicitations, either by competitive bidding or negotiations made by Consultant for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by Consultant of Consultant's obligations under this Agreement, and the Regulations relative to nondiscrimination on the grounds of race, religion, color, disability, sex, age or national origin.

D. Information and Reports

Consultant shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by SJCOG to be pertinent to ascertain compliance with such regulations, orders, and instructions. Where any information required of Consultant is in the exclusive possession of another who fails or refuses to furnish this information, Consultant shall so certify to SJCOG, as appropriate, and shall set forth what efforts it has made to obtain the information.

E. Sanctions for Noncompliance

In the event of Consultant's noncompliance with the nondiscrimination provisions of this Agreement, SJCOG shall impose such sanctions as it may determine to be appropriate, including, but not limited to:

1. Withholding of payments to Consultant under this Agreement until Consultant complies; and/or

2. Cancellation, termination, or suspension of the Agreement, in whole or in part.

F. Incorporation of Provisions

Consultant shall include the provisions of subsections A through F of this section in every subcontract, including procurements of materials and leases of equipment, unless exempt from the regulations, or directives issued pursuant thereto.