AttachmentK_SampleAgreement.pdf

ATTACHMENT K – SAMPLE AGREEMENT

CI 5585 – MUNICIPAL SERVICE CENTER MICROGRID AND BACKUP

POWER

Project Name: CI 5585 MUNICIPAL SERVICE CENTER MICROGRID AND BACKUP POWER

AGREEMENT FOR

MICROGRID AND BACKUP GENERATOR

BETWEEN THE CITY OF THOUSAND OAKS

AND

(Insert Name of CONTRACTOR)

THIS AGREEMENT is made and entered into this _______ day of _______, 20__, by and between CITY OF THOUSAND OAKS, a municipal corporation ("City"), and insert type of business: corporation, LLC, DBA, etc ("Contractor").

City and Contractor agree as follows:

1. RETENTION OF CONTRACTOR

City hereby retains Contractor, and Contractor hereby accepts such engagement, to perform the services described in Section 2. Contractor warrants it has the qualifications, experience, and facilities to properly and timely perform said services.

2. DESCRIPTION OF SERVICES

The services to be performed by Contractor are as follows:

Professional services in conjunction with design, fabrication, permitting, installation, training and 1 year operations/maintenance of solar photovoltaic carport and/or rooftop structures at various City facilities. Services are more particularly set forth in the Scope of Work, attached as Exhibit “A,” which is incorporated herein by reference.

3. COMPONENT PARTS OF THE CONTRACT DOCUMENTS

The “Contract Documents” include only the following documents, each of which is incorporated into this Agreement by reference:

a. Request for Proposals (the RFP)

b. Proposal & Proposal Forms

c. All Addenda to the Request for Proposals

d. Performance and Payment Bonds

e. Prevailing Wage Determination

f. General Conditions

g. RFP Attachments A through N

h. Greenbook Standard Specifications (Sections 1-9 Excluded)

i. Standard Plans (City Road/Water/Wastewater Standards, plus Caltrans

Standard Plans Most Recent Edition; Sections 1-9 Excluded)

The Contractor shall complete the Work in strict accordance with all of the Contract Documents. In case of conflicts between the Contract Documents, the order of precedence shall be as set forth in the General Conditions.

All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all.

This Contract shall supersede any prior agreement of the parties, whether written or oral. The Contract can be modified only by a written Change Order executed in accordance with the Contract Documents.

4. COMPENSATION AND PAYMENT

a. Maximum and Rate. The total compensation payable to Contractor by City for the services under this Agreement SHALL NOT EXCEED the sum of $ (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis: by percentage of work completed, in accordance with each line item in the Contractor’s price proposal and associated Schedule of Values.

b. Payment. Contractor shall provide City with written verification of the actual compensation earned, in a form satisfactory to City's Project Manager. Invoices shall be made no more frequently than on a monthly basis, and describe the work performed. All payments shall be made within 30 days after City’s approval of the invoice.

c. Extra Services. Additional work not reasonably encompassed by the

Scope of Services described in Section 2 may be agreed upon only by execution of a written Change Order Amendment to this Agreement. No liability or right to compensation for extra services shall exist without such Amendment. Change Orders shall be treated as called out in Article 43 of the General Conditions.

5. CITY PROJECT MANAGER

The services to be performed by Contractor shall be accomplished under the general direction of, and coordinate with, City's "Project Manager", as that staff person is designated by City from time to time, and who presently is Kenneth Wang.

6. TERMS AND CONDITIONS OF PERFORMANCE

Non-Exclusivity. This Agreement is non-exclusive. City reserves the rights to retain, employ, or contract with other qualified services providers during the term of this Agreement on such occasions and in such circumstances as City shall determine are appropriate.

Ability to Perform. Contractor warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations.

Laws to be Observed. Contractor shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws as well as with Ventura County and City of Thousand Oaks ordinances, regulations and adopted codes during its performance of the work.

Payment of Taxes. The contract prices shall include provision for all taxes that Contractor is required to pay. Contractor is responsible for all taxes required to be paid under this Agreement.

Permits and Licenses. Contractor shall procure all permits and licenses, pay all charges and fees (other than City of Thousand Oaks Building and Electrical Permits), and give all necessary or legally required notices.

Prevailing Wage. Contractor is obligated to pay prevailing wages under the California Labor Code. Contractor agrees to indemnify, defend and hold City harmless from any claim that prevailing wages should have been paid, and shall be liable for the payment of the same and any penalties thereon. It is the responsibility of Contractor to be familiar with the California Labor Code, and failure or neglect of Contractor to understand the California Labor Code shall in no way relieve Contractor from any obligations.

Department of Industrial Relations Requirements. The Work is subject to the payment of not less than prevailing wages under California Labor Code Section 1770 et seq. The work is subject to compliance monitoring and enforcement by the Department of Industrial Relations. No contractor or subcontractor may be awarded a contract for public work on a public works project unless currently registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.

Apprenticeship. If the contractor or subcontractor employs four or more employees, 15% of the labor hours spent on a BESS facility that began construction in 2024 or later must be performed by qualified apprentices. A qualified apprentice is defined as an employee who participates in an apprenticeship program under the National Apprenticeship Act.

Safety Provisions. Contractor shall conform to the rules and regulations pertaining to safety established by Occupational Safety & Health Administration (OSHA) and the California Division of Industrial Safety.

Preservation of City Property. Contractor shall provide and install suitable safeguards, approved by City, to protect City property from injury or damage. If City property is injured or damaged as a result of Contractor's operations, it shall be replaced or restored within a reasonable time at Contractor's expense. The facilities shall be replaced or restored to a condition as good as when Contractor began work.

Subcontractors. Contractor shall be solely responsible for ensuring that any subcontractors used in completing tasks under the Agreement comply with all pertinent laws and regulations as well as the relevant terms of this Agreement. City shall have no obligation to monitor or oversee subcontractors.

Contractor Non-Discrimination. In the performance of this work, Contractor agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons.

Retention - The Contract Documents call for monthly progress payments based upon percentage of work completed. The City will retain five percent (5%) of each progress payment as provided by the Contract Documents. At the request and expense of the successful Proposer, the Contractor may substitute securities for the amount so retained in accordance with Public Contract Code Section 22300.

Inspection. Contractor shall furnish City with every reasonable opportunity for City to ascertain that the services of Contractor are being performed in accordance with the requirements and intentions of this Agreement. All work done and all materials furnished, if any, shall be subject to City's inspection and approval. The inspection of such work shall not relieve Contractor of any of its obligations to fulfill its contract requirements.

Audit. Contractor shall maintain, in accordance with generally accepted accounting principles, complete and accurate records of all activities and operations relating to this Agreement. Records, including but not limited to, timecards, employment records, work progress reports, reimbursements, invoices, project records, proprietary data and information, as well as licensed software and any electronic records shall be kept for a period of four years beyond the termination or expiration of this Agreement. Contractor agrees that City, or its authorized representative, shall have the right to examine, audit, excerpt, copy or transcribe any of the records pertaining to this Agreement at any time during normal business hours. Contractor shall reimburse City for all reasonable costs of the audit, including travel time and auditor costs, should such audit reveal an overcharge of five (5) percent or more. Any overcharge will be considered a breach of this Agreement and could be cause for termination. The obligations of this section shall be explicitly included in any subcontracts or other agreements entered into by Contractor with respect to this Agreement, if allowed by this Agreement.

PERFORMANCE BOND AND PAYMENT (LABOR AND MATERIALS) BOND

REQUIREMENTS - WITHIN THE TIME SPECIFIED IN THE CONTRACT DOCUMENTS,

THE SUCCESSFUL PROPOSER SHALL DELIVER TO THE CITY THE

PERFORMANCE BOND AND PAYMENT (LABOR AND MATERIALS) BOND IN THE

FORM SUPPLIED BY THE CITY AND INCLUDED IN THE CONTRACT DOCUMENTS.

THE SURETY SUPPLYING THE BOND MUST BE AN ADMITTED SURETY INSURER,

AS DEFINED IN CODE OF CIVIL PROCEDURE SECTION 995.120, AUTHORIZED TO

DO BUSINESS IN THE STATE OF CALIFORNIA AND SATISFACTORY TO THE CITY.

THE PERFORMANCE BOND AND THE PAYMENT (LABOR AND MATERIALS) BOND

SHALL BE FOR ONE HUNDRED PERCENT (100%) OF THE TOTAL PROPOSAL

PRICE.

SALES AND OTHER APPLICABLE TAXES, PERMITS, LICENSES AND FEES -

CONTRACTOR AND ITS SUBCONTRACTORS PERFORMING WORK UNDER THIS

CONTRACT WILL BE REQUIRED TO PAY CALIFORNIA SALES TAX AND OTHER

APPLICABLE TAXES, AND TO PAY FOR PERMITS, LICENSES AND FEES

REQUIRED BY THE AGENCIES WITH AUTHORITY IN THE JURISDICTION IN WHICH

THE WORK WILL BE LOCATED, UNLESS OTHERWISE EXPRESSLY PROVIDED BY

THE CONTRACT DOCUMENTS. PROPOSERS SHALL INCLUDE ALL APPLICABLE

TAXES AND FEES IN THEIR PROPOSAL. PROPOSER SHALL PROCURE A

BUSINESS TAX CERTIFICATE FROM THE CITY AND PAY ALL APPLICABLE LOCAL

BUSINESS TAXES AS SET FORTH IN THE THOUSAND OAKS MUNICIPAL CODE.

7. TERM, PROGRESS AND COMPLETION

The term of this Agreement is from the date first written above to

______________________, unless term of this Agreement is extended or the Agreement is terminated as provided for herein.

Contractor shall not commence work on the services to be performed under the Agreement until (i) Contractor furnishes proof of insurance as required by Article 11 below, and (ii) City’s Project Manager gives written authorization to proceed with the work.

All services shall be completed within the term of this.

8. OWNERSHIP OF DOCUMENTS

All drawings, designs, data, photographs, reports and other documentation (other than Contractor’s drafts, notes and internal memorandum), including duplication of same prepared by Contractor in the performance of these services, are the property of City. City shall be entitled to immediate possession of the same upon completion of the work under this Agreement, or at any earlier or later time when requested by City. City agrees to hold Contractor harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans, specifications, graphics, brochures, reports, and other documentation for purposes other than those described in this Agreement, unless written authorization of Contractor is first obtained.

9. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTS

This Agreement is for professional services, which are personal to City.

(Name of Contractor employee name) is deemed to be especially experienced and is a key member of Contractor's firm, and shall be directly involved in performing, supervising or assisting in the performance of this work. This key person shall communicate with, and periodically report to, City on the progress of the work. Should said individual be removed from assisting in this contracted work for any reason, City may terminate this Agreement.

10. HOLD HARMLESS AND INDEMNITY

a. Hold Harmless for Contractor's Damages. Contractor holds City, its elected officials, officers, agents, employees and volunteers, harmless from all of Contractor's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to Contractor, to Contractor’s employees, to Contractor’s contractors or subcontractors, or to the owners of Contractor’s firm, which damages, losses, injuries or liability occur during the work or services required under this Agreement, or performance of any activity or work required under this Agreement.

b. Defense and Indemnity of Third Party Claims/Liability. To the maximum extent allowed by law, Contractor shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, agents, employees and volunteers from and against all liability including, but not limited to, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Contractor’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in the Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of City.

Should conflict of interest principles preclude a single legal counsel from representing both City and Contractor, or should City otherwise find Contractor’s legal counsel unacceptable, then Contractor shall reimburse City its costs of defense, including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation. The Contractor shall promptly pay City any final judgment rendered against City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of Contractor’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.

Contractor’s obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee.

However, without affecting the rights of City under any provision of this Agreement, Contractor shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of the Contractor shall be for that entire portion or percentage of liability not attributable to the active negligence of City.

c. Nonwaiver. City does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by City, or the deposit with City, of any insurance certificates or policies described in Section 9.

11. MINIMUM SCOPE AND LIMIT OF INSURANCE

Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide, and maintain at its own expense during the term of this Agreement, and any extension thereof, policies of insurance of the type and amounts described below and in a form that is satisfactory to City.

Coverage shall be at least as broad as:

a. Commercial General Liability (CGL): Contractor shall, at Contractor’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry General Liability insurance coverage at least as broad as Insurance Services form CG 00 01 in an amount not less than $5,000,000 per occurrence, $10,000,000 general aggregate for bodily injury, personal and advertising injury and property damage, including without limitation, blanket contractual liability.

b. Automobile Liability: Contractor shall, at Contractor’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry Automobile Liability insurance coverage at least as broad as Insurance Services form CA 00 01 or the exact equivalent covering bodily injury and property damage for all activities of Contractor arising out of or in connection with the work to be performed under this Agreement, including coverage of any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

c. Worker’s Compensation: Contractor shall, at Contractor’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry workers’ compensation statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for bodily injury or disease. Contractor shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its elected officials, officers, agents, employees and volunteers for all work performed by Contractor, its employees, agents and subcontractors.

d. Professional Errors and Omissions Insurance: Contractor shall, at

Contractor’s sole cost and expense throughout the term of this Agreement, and any extensions thereof, carry professional errors and omissions coverage of no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate, with tail coverage for an extended reporting period of three (3) years.

e. Builder’s Risk (Course of Construction): Contractor shall, at Contractor’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry and maintain Builder’s Risk insurance as specified below. The named insureds shall be Contractor, all Subcontractors (excluding those solely responsible for design work) of any tier, suppliers, and City, its officers, officials, agents, employees and volunteers. Contractor shall not be required to maintain property insurance for any portion of the Project following transfer of control thereof to City. Policy shall be provided for replacement value on an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. Policy must include: (1) coverage for any ensuring loss from faulty workmanship, nonconforming work, omission or deficiency in design or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris, and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the project; (4) transit coverage, including ocean marine coverage (unless insured by the supplier), with sub-limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits sufficient to insure the full replacement value of any property or equipment stored either on or off the site. Such insurance shall be on a form acceptable to the City to ensure adequacy of terms and sublimits.

Contractor may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear

If Contractor maintains higher limits than the minimum shown above, City requires and shall be entitled to coverage for the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status City, its elected officials, officers, agents, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Contractor’s insurance (at least as broad as ISO Form CG 20 38 04 13 AND CG 20 10 11 85 or if not available, through the addition of both CG 20 10 10 01 and CG 20 37 10 01 if a later edition is used).

The provision shall also apply to any excess liability policies. In addition, Contractor shall ensure that the automobile liability policy contains a provision covering City as an additional insured, and shall obtain an endorsement to that effect if it does not.

Excess Insurance The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Umbrella or excess policies shall provide coverage at least as broad as specified for underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf” with defense costs payable in addition to policy limits. There shall be no cross-liability exclusion of claims or suits by one insured against the other. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and no-contributory basis for the benefit of City as required in written contract or agreement before City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

City’s Rights of Enforcement In the event any policy of insurance required under this Agreement does not comply with these specifications or is cancelled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor, or City will withhold amounts sufficient to pay premium from Contractor’s payments. In the alternative, City may cancel this Agreement.

City’s Right to Revise Specifications City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor’s compensation.

Primary and Non-Contributory Coverage For any claims related to this Agreement, Contractor’s insurance coverage shall be primary insurance as respects City, its elected officials, officers, agents, employees and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees or volunteers shall be excess of Contractor’s insurance and shall not contribute with it and shall be at least as broad as CG 20 01 04 13.

Notice of Cancellation Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to City.

Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by City. City may require Contractor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Acceptability of Insurers All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with a current A.M. Best’s rating of no less than A:VII, (unless otherwise acceptable to City).

Waiver of Subrogation All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected officials, officers, agents, employees or volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications - to waive their right of recovery prior to a loss. Contractor hereby waives his own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to City prior to commencement of work.

Claims Made Policies If any of the required policies provided coverage on a claims-made basis:

1. The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the work required under this Agreement.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Agreement effective date, Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.

Verification of Coverage Contractor shall provide City with copies of certificates (on City certificate form or an Accord form as modified per City direction) for all policies, with the appropriate named additional insured coverage and an endorsement that they are not subject to cancellation without 30 days prior written notice to City. All certificates and endorsements are to be received and approved by City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive Contractor’s obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.

12. RELATION OF THE PARTIES

a. Contractor is and shall at all times remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City nor any of its officers, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor’s officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner.

b. No employee benefits shall be available to Contractor in connection with the performance of this Agreement. Except for the fees paid to Contractor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for City. City shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing services hereunder.

13. CORRECTIONS

In addition to the above indemnification obligations, Contractor shall correct, at its expense, all errors in the work that may be disclosed during City's review of Contractor’s report or plans. Should Contractor fail to make such correction in a reasonably timely manner, such correction shall be made by City, and the cost thereof shall be charged to Contractor or withheld from any funds due to Contractor hereunder.

14. TERMINATION BY CITY

City may terminate without cause any or all of the services agreed to be performed under this Agreement upon 30 calendar days’ written notice. If termination is for cause, no advance notice need be given. In the event of termination, Contractor shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by City to Contractor within 30 days following submission of a final statement by Contractor unless termination is for cause. In such event, Contractor shall be compensated only to the extent required by law.

15. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE

The acceptance by Contractor of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Contractor for anything done, furnished, or relating to Contractor’s work or services.

Acceptance of payment shall be any negotiation of City's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check.

However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Contractor, its employees, subcontractors, agents and Contractors for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Contractor, its employees, subcontractors, agents and Contractors.

16. AUDIT OF RECORDS

Contractor shall maintain, in accordance with generally accepted accounting principles, complete and accurate records of all activities and operations relating to this Agreement. Records, including but not limited to, timecards, employment records, work progress reports, reimbursements, invoices, project records, proprietary data and information, as well as licensed software and any electronic records shall be kept for a period of four years beyond the termination of this Agreement. Contractor agrees that City, or its authorized representative, shall have the right to examine, audit, excerpt, copy or transcribe any of the records pertaining to this Agreement at any time during normal business hours. Contractor shall reimburse City for all reasonable costs of the audit, including travel time and auditor costs, should such audit reveal an overcharge of five (5) percent or more. Any overcharge will be considered a breach of this Agreement and could be cause for termination. The obligations of this section shall be explicitly included in any subcontracts or other agreements entered into by Contractor with respect to this Agreement.

17. WAIVER; REMEDIES CUMULATIVE

Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.

18. CONFLICT OF INTEREST

Contractor is unaware of any City employee or official that has a financial interest in Contractor’s business. During the term of this Agreement and/or as a result of being awarded this Agreement, Contractor shall not offer, encourage or accept any financial interest in Contractor’s business by any City employee or official.

19. CONSTRUCTION OF LANGUAGE OF AGREEMENT

The provisions of this Agreement shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.

20. MITIGATION OF DAMAGES

In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

21. GOVERNING LAW

This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California. Should litigation occur, venue shall be in Superior Court of Ventura County.

22. TAXPAYER IDENTIFICATION NUMBER

Contractor shall provide City with a complete Request for Taxpayer Identification Number and Certification, Form W-9, as most recently issued by the Internal Revenue Service.

23. NON-APPROPRIATION OF FUNDS

Payments due and payable to Contractor for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of City funds. In the event City has not appropriated sufficient funds for payment of Contractor’s services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the current fiscal year.

24. MODIFICATION/AMENDMENT OF AGREEMENT

Any amendment, modification, or variation of the terms or tasks of this Agreement shall be in writing and shall be effective only upon the mutual written approval of the City and Contractor.

25. USE OF THE TERM “CITY”

Reference to “City” in this Agreement includes the City Manager or any authorized representative acting on behalf of City.

26. PERMITS AND LICENSES

Contractor, at its sole expense, shall obtain and maintain during the term of this Agreement all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement.

27. CAPTIONS

The captions or headings in this Agreement are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the Agreement.

28. AUTHORIZATION

Each party has expressly authorized the execution of this Agreement on its behalf and binds said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint ventures, insurance carriers and any others who may claim through it to this Agreement.

29. ENTIRE AGREEMENT BETWEEN PARTIES

Except for Contractor’s proposals and submitted representations for obtaining this Agreement, this Agreement supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services and contains all of the covenants and agreements between the parties with respect to said services.

30. PARTIAL INVALIDITY

If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

31. FEDERAL REQUIREMENTS

Contractor acknowledges that federal funds are being used for this Agreement and that Contractor is required to comply with all material obligations required by federal or state law in reporting work completed with said funds, and certifies that Contractor and its subcontractors are eligible to participate in the Federally funded contract, pursuant to the “System for Award Management (SAM)” database, as maintained by the General Services Administration and required by 2 CFR, part 180.

Contractor shall also comply with the federal Americans with Disability Act, Public Law 101-336, and observe the disability discrimination prohibitions of such laws in the performance of the work required under this Agreement.

32. NOTICES

Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY: Attention: Kenneth Wang Public Works Department kwang@toaks.gov

City of Thousand Oaks 2100 Thousand Oaks Blvd, Thousand Oaks, CA 91362

TO CONTRACTOR: _________________

33. SIGNATURES

(a) Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument.

(b) Scanned Signatures. In the event that any signature is delivered by facsimile transmission or submitted electronically as a scanned image (i.e. files with .pdf, .tiff or .jpeg extensions), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or scanned signature page were an original thereof.

(c) Digital/Electronic Signatures. This Agreement may be executed through the use of digital or electronic signatures provided they meet the requirements of the Electronic Signatures in Global and National Commerce (ESIGN) Act and the California Uniform Electronic Transactions Act (UETA) and are produced using a City-approved method. The presence of an electronic signature on this document shall be construed as the parties’ consent to do business electronically.

34. LEVINE ACT COMPLIANCE

California Government Code section 84308 (Levine Act) prohibits any Thousand Oaks

City Council member from participating in any action related to a contract, agreement, or franchise agreement if the councilmember receives a campaign contribution totaling more than $500 (aggregated) from the party to the contract, agreement, or franchise agreement, an agent of the party, or any financially interested participant who actively supports or opposes the matter within the previous twelve (12) months. Councilmembers must also disclose any eligible campaign contribution received on the record of the proceeding.

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Councilmembers are also prohibited from soliciting, accepting or directing campaign contributions totaling more than $500 (aggregated) from the applicant or party, an agent of the applicant/party, or any financially interested participant who actively supports or opposes the matter within the previous twelve (12) months, and for twelve (12) months following the date a final decision on the contract/agreement is made.

The Levine Act also requires parties to a contract, agreement, or franchise agreement to disclose any campaign contribution over $500 (aggregated) within the preceding twelve

(12) months by the party to the agreement, contract, or franchise agreement. The Levine

Act does not apply to contracts under $50,000, competitively bid, labor, or personal employment contracts. An agent to the Party/Consultant/Service Provider is prohibited from making any contributions whatsoever during this time period.

In order to assure compliance with these requirements, Party/Consultant/Service

Provider has provided the disclosure requirements identified in the Levine Act Disclosure

Form, attached as Exhibit “C,” incorporated herein by reference, and

Party/Consultant/Service Provider verifies by its signature that it has completed Exhibit

“C” in compliance of these requirements.

Party/Consultant/Service Provider shall also be responsible for understanding and complying with requirements of Government Code section 84308, which prohibits parties to a contract/agreement, as well as their agents and representatives, from contributing more than $500 (aggregated) to a City Council member of the City of Thousand Oaks for the 12 months prior to the award of this Contract/Agreement, and for the 12 months following award of this Contract/Agreement. An agent to the Party/Consultant/Service

Provider is prohibited from making any contributions whatsoever during this time period.

Where applicable, Party/Consultant/Service Provider shall disclose any post award campaign contributions prior to seeking an amendment to this Contract/Agreement.

In concurrence and witness whereof, this Agreement has been executed by the parties effective on the date and year first above written.

CONTRACTOR

By:

Title:

By:

Title:

CITY OF THOUSAND OAKS

David Newman, Mayor

ATTEST:

Laura B. Maguire, City Clerk

APPROVED AS TO ADMINISTRATION:

Andrew P. Powers, City Manager

APPROVED BY DEPARTMENT HEAD:

Nader Heydari, Public Works Director

APPROVED AS TO FORM:

Office of the City Attorney

By: Tracy Friedl, Assistant City Attorney