CC - Item 4L - Approval of Second Amendment to Professional Services Agreement with St. Francis Electric for Traffic Signal Maintenance ServicesROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: BEN KIM, CITY MANAGER
DATE: JUNE 13, 2023
SUBJECT: APPROVAL OF SECOND AMENDMENT TO PROFESSIONAL
SERVICES AGREEMENT WITH ST. FRANCIS ELECTRIC FOR
TRAFFIC SIGNAL MAINTENANCE SERVICES
SUMMARY
On June 14, 2022, the City Council approved a one-year extension to the original three-year
agreement including two one-year extensions, with St. Francis Electric to perform traffic signal
and traffic control device maintenance services. The agreement is scheduled to expire on June
30, 2023, and Staff is requesting the Council's approval to exercise the second one-year option to
a new expiration date of June 30, 2024. Staff is also requesting to ratify the cost of additional
and unforeseen emergency traffic signal repair work performed in FY 2022-2023 in the amount
of $56,000 due to a traffic collision.
DISCUSSION
On June 11, 2019, the City Council approved a three-year agreement including two one-year
options with St. Francis Electric to perform routine preventative maintenance, scheduled repairs
and emergency repairs to traffic signals, traffic signal equipment, safety streetlights, flashing
beacons, speed feedback signs, in -pavement flashing crosswalk lights, and other related
equipment by duly trained and qualified personnel. On June 14, 2022, the City Council approved
a one-year extension to the original agreement to an expiration date of June 30, 2023.
St. Francis Electric has performed maintenance services for the City since 2016, and has
developed a comprehensive understanding of the City's traffic signal/control devices and traffic
operations. Throughout the term of this and past agreements, St. Francis Electric has exceeded
the expectations of staff. They have monitored and communicated well in their recommendations
to keep all City traffic signals operating efficiently and effectively. St. Francis Electric has been
responsive during emergencies, even going so far as to loan the City temporary traffic signal
poles. They have also provided a timely response in repairing traffic control boxes that have been
damaged in vehicle collisions. Staff is recommending that the agreement is extended for an
additional one-year term to June 30, 2024.
AGENDA ITEM 4.1,
City Council Meeting
June 13, 2023
Page 2 of 3
During Fiscal Year 2022-23, St. Francis responded to emergency services call out to the
intersection of San Gabriel and Hellman to assist the City in resolving damage to a traffic signal
and traffic signal cabinet as a result of a car accident. The traffic signal and cabinet were
ultimately replaced after an assessment of the damage and the total cost for the response and
repair services was $55,918. Staff is requesting to ratify the FY 2022-23 compensation authority
from $56,000 to $216,000 to cover the costs of the necessary emergency repairs. The increase
will utilize available Street Light District funds within the Public Works Department FY 22-23
operating budget.
ENVIRONMENTAL REVIEW
City staff has determined, in accordance with Section 15061(b)(3) of the California
Environmental Quality Act (CEQA) Guidelines, that this project is not subject to CEQA review
because it can be seen with certainty that there is no possibility that the traffic signal services
will have a significant effect on the environment because it is only traffic signal maintenance
activities that are a part of the work.
STAFF RECOMMENDATION
It is recommended that the City Council:
1) Authorize an amendment to the agreement with St. Francis to ratify the emergency repair
work caused by a traffic accident in the amount of $56,000 increasing the compensation
amount from $160,000 to $216,000 for FY 2022-23.
2) Authorize a second one-year extension with St. Francis Electric for the scope of services
per the original contract to June 30, 2024.
3) Find that the Project is exempt from CEQA review pursuant to Section 15061(b)(3) of the
California Environmental Quality Act (CEQA) Guidelines
FISCAL IMPACT
The additional funding for Traffic Signal Maintenance services is included in the approved
Fiscal Year 2022-23 Budget within the Public Works Department operating budget, field
services division, Street Light District Fund.
STRATEGIC PLAN IMPACT
This item is consistent with the City's 2030 Strategic Plan Goal A — Safety, which focuses on
enhancing public safety by providing safe access to public facilities, expanding neighborhood
safety programs, and improving quality of life.
City Council Meeting
June 13, 2023
Page 3 of 3
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Prepared by:
Danielle Garcia, Public Works Fiscal and Project Manager
Submitted by:
Ben Ki city Manager
Attachment A: Second Amendment to PSA
Attachment B: St. Francis Electric Invoice for Emergency Services
Attachment C: Traffic Signal Maintenance Services Agreement with St. Frances Electric
Attachment A
Second Amendment to the
Professional Services Agreement
SECOND AMENDMENT
TO TRAFFIC SIGNAL MAINTENANCE SERVICES AGREEMENT
(ST FRANCIS ELECTRIC)
This SECOND AMENDMENT ("Amendment') is made and entered into this
day of 2023 ("Effective Date"), by and between the City of Rosemead, a
municipal organization, organized under the laws of the State of California with its principal
place of business at 8838 East Valley Blvd., Rosemead, California 91770 ("City') and St.
Francis Electric, with its principal place of business at 1420 Citrus Street, Riverside CA
92507 ("Contractor"). City and Contractor are sometimes individually referred to herein
as "Party" and collectively as "Parties."
WHEREAS, City and Contractor entered into an agreement on July 1, 2019, for Traffic
Signal Maintenance Services (the "Agreement') the Agreement was for a 3 -year term with
two, one-year extensions; and
WHEREAS, on June 14, 2022, the City and Contractor executed a one-year extension
to the expiration date of June 30, 2023; and
WHEREAS, in 2022 the City requested that the Contractor provide additional emergency
traffic signal maintenance services caused by a vehicular traffic accident which was an
unexpected and additional cost outside of the contract services and it also exceeded the annual
compensation for the Agreement by $56,000; and
WHEREAS, City desires to ratify the added emergency repair work in 2022 of Fifty -Six
Thousand Dollars ($56,000) which exceeded the compensation amount of $160,000 to be a total
of $216,000 in FY 2023-22,
NOW, THEREFORE, the Parties agree as follows:
SECTION 1. Section 3.1.2 Term shall be amended to read:
3.1.2 Term. The term of this Agreement shall be from July 1, 2019
to June 30, 2024, unless earlier terminated as provided herein.
Consultant shall complete the Services within the term of this Agreement
and shall meet any other established schedules and deadlines. The
Parties may, by mutual, written consent, extend the term of this
Agreement if necessary.
St Francis Electric
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SECTION 2. The compensation amount under Section 3.3.1 for FY 2022-23 shall
be increased from $160,000 to $216,000 to ratify the emergency repair work
performed in the amount of $56,000 caused by a traffic accident. For FY 2023-24,
the compensation authority shall remain at the original $160,000.
SECTION 3. All other terms, conditions, and provisions of the Original Agreement not in conflict
with this Addendum, shall remain in full force and effect.
SECTION 4. The City Clerk shall certify to the adoption of this Addendum and hereafter the
same shall be in full force and effect.
IN WITNESS WHEREOF, City and Contractor have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first above written.
{SIGNATURES ON NEXT PAGE]
St Francis Electric
Page 3 of 3
CITY OF ROSEMEAD
Ben Kim, City Manager Date
Attest:
Ericka Hernandez, City Clerk Date
Approved as to Form:
Rachel Richman, City Attorney Date
ST FRANCIS ELECTRIC
Signature Date
Print
Title:
[If Corporation, TWO SIGNATURES, President
OR Vice President AND Secretary, AND
CORPORATE SEAL OF CONTRACTOR
REQUIRED]
M
Name:
Title:
Attachment B
St. Francis Electric Invoice for
Emergency Services
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Attachment C
Traffic Signal Maintenance Services
Agreement with St. Francis Electric
C2,06 01
TRAFFIC SIGNAL MAINTENANCE SERVICES AGREEMENT
(ST. FRANCIS ELECTRIC)
PARTIES AND DATE.
This Agreement is made and entered into this _1st_ day of July , 2019
by and between the City of Rosemead, a municipal corporation of the State of California,
located at 8838 E. Valley Blvd., Rosemead, California 91770, ("City") and St. Francis
Electric, a limited liability corporation, with its principal place of business at 975 Carden
Street, San Leandro, CA 94577 (hereinafter referred to as "Contractor"). City and
Contractor are sometimes individually referred to as "Party" and collectively as 'Parties"
in this Agreement.
2. RECITALS.
2.1 Contractor.
Contractor desires to perform and assume responsibility for the provision of certain
maintenance services required by the City on the terms and conditions set forth in this
Agreement. Contractor represents that it is experienced in providing Traffic Signal
Maintenance services to public clients, that it and its employees or subcontractors have
all necessary licenses and permits to perform the Services in the State of California, and
that is familiar with the plans of City.
2.2 Project.
City desires to engage Contractor to render such services for the City Wide Traffic
Signal Maintenance (`Project') as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Contractor promises and agrees to
furnish to the Owner all labor, materials, tools, equipment, services, and incidental and
customary work necessary to fully and adequately supply the professional Traffic Signal
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maintenance services necessary for the Project ("Services"). The Services are more
particularly described in Exhibit "A" attached hereto and incorporated herein by reference.
All Services shall be subject to, and performed in accordance with, this Agreement, the
exhibits attached hereto and incorporated herein by reference, and all applicable local,
state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from July 1, 2019 to June
30, 2022 with the option of two one-year extentions, at the City's sole discretion, unless
earlier terminated as provided herein. Contractor shall complete the Services within the
term of this Agreement, and shall meet any other established schedules and deadlines.
The Parties may, by mutual, written consent, extend the term of this Agreement if
necessary to complete the Services.
3.2 Responsibilities of Contractor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The
Services shall be performed by Contractor or under its supervision. Contractor will
determine the means, methods and details of performing the Services subject to the
requirements of this Agreement. City retains Contractor on an independent contractor
basis and not as an employee. Contractor retains the right to perform similar or different
services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Contractor shall also not be
employees of City and shall at all times be under Contractor's exclusive direction and
control. Contractor shall pay all wages, salaries, and other amounts due such personnel
in connection with their performance of Services under this Agreement and as required
by law. Contractor shall be responsible for all reports and obligations respecting such
additional personnel, including, but not limited to: social security taxes, income tax
withholding, unemployment insurance, disability insurance, and workers' compensation
insurance.
3.2.2 Schedule of Services. Contractor shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "B" attached hereto and incorporated herein by reference.
Contractor represents that it has the professional and technical personnel required to
perform the Services in conformance with such conditions. In order to facilitate
Contractor's conformance with the Schedule, City shall respond to Contractor's submittals
in a timely manner. Upon request of City, Contractor shall provide a more detailed
schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Contractor shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Contractor has represented to City
that certain key personnel will perform and coordinate the Services under this Agreement.
Should one or more of such personnel become unavailable, Contractor may substitute
other personnel of at least equal competence upon written approval of City. In the event
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that City and Contractor cannot agree as to the substitution of key personnel, City shall
be entitled to terminate this Agreement for cause. As discussed below, any personnel
who fail or refuse to perform the Services in a manner acceptable to the City, or who are
determined by the City to be uncooperative, incompetent, a threat to the adequate or
timely completion of the Project or a threat to the safety of persons or property, shall be
promptly removed from the Project by the Contractor at the request of the City.
3.2.5 City's Representative. The City hereby designates the City
Manager, or his or her designee, to act as its representative for the performance of this
Agreement ("City's Representative"). City's Representative shall have the power to act
on behalf of the City for all purposes under this Contract. Contractor shall not accept
direction or orders from any person other than the City's Representative or his or her
designee.
3.2.6 Contractor's Representative. Contractor hereby designates Area
Manager Jill Petrie, or his or her designee, to act as its representative for the performance
of this Agreement ("Contractor's Representative"). Contractor's Representative shall
have full authority to represent and act on behalf of the Contractor for all purposes under
this Agreement. The Contractor's Representative shall supervise and direct the Services,
using his/her best skill and attention, and shall be responsible for all means, methods,
techniques, sequences and procedures and for the satisfactory coordination of all
portions of the Services under this Agreement.
3.2.7 Coordination of Services. Contractor agrees to work closely with City
staff in the performance of Services and shall be available to City's staff, consultants and
other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Contractor shall
perform all Services under this Agreement in a skillful and competent manner, consistent
with the standards generally recognized as being employed by professionals in the same
discipline in the State of California. Contractor represents and maintains that it is skilled
in the professional calling necessary to perform the Services. Contractor warrants that
all employees and subcontractors shall have sufficient skill and experience to perform the
Services assigned to them. Finally, Contractor represents that it, its employees and
subcontractors have all licenses, permits, qualifications and approvals of whatever nature
that are legally required to perform the Services, including a City Business License, and
that such licenses and approvals shall be maintained throughout the term of this
Agreement. As provided for in the indemnification provisions of this Agreement,
Contractor shall perform, at its own cost and expense and without reimbursement from
the City, any services necessary to correct errors or omissions which are caused by the
Contractor's failure to comply with the standard of care provided for herein. Any employee
of the Contractor or its sub -contractors who is determined by the City to be uncooperative,
incompetent, a threat to the adequate or timely completion of the Project, a threat to the
safety of persons or property, or any employee who fails or refuses to perform the
Services in a manner acceptable to the City, shall be promptly removed from the Project
by the Contractor and shall not be re-employed to perform any of the Services or to work
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on the Project.
3.2.9 Laws and Regulations. Contractor shall keep itself fully informed of
and in compliance with all local, state and federal laws, rules and regulations in any
manner affecting the performance of the Project or the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. Contractor shall be liable for all
violations of such laws and regulations in connection with Services. If the Contractor
performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the City, Contractor shall be solely responsible for all costs
arising therefrom. Contractor shall defend, indemnify and hold City, its officials, directors,
officers, employees and agents free and harmless, pursuant to the indemnification
provisions of this Agreement, from any claim or liability arising out of any failure or alleged
failure to comply with such laws, rules or regulations.
3.2. 10 Insurance.
3.2.10.1 Time for Compliance. Contractor shall maintain prior to the
beginning of and for the direction of this Agreement insurance coverage as specified in
Exhibit D attached to and part of this agreement.
3.2.11 Safety. Contractor shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out its Services, the Contractor
shall at all times be in compliance with all applicable local, state and federal laws, rules
and regulations, and shall exercise all necessary precautions for the safety of employees
appropriate to the nature of the work and the conditions under which the work is to be
performed. Safety precautions as applicable shall include, but shall not be limited to: (A)
adequate life protection and life saving equipment and procedures; (B) instructions in
accident prevention for all employees and subcontractors, such as safe walkways,
scaffolds, fall protection ladders, bridges, gang planks, confined space procedures,
trenching and shoring, equipment and other safety devices, equipment and wearing
apparel as are necessary or lawfully required to prevent accidents or injuries; and (C)
adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.12 Prevailing Wages. Contractor is aware of the requirements of
California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code
of Regulations, Title 8, Section 1600, et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on "public
works" and "maintenance" projects. If the Services are being performed as part of an
applicable "public works" or "maintenance" project, as defined by the Prevailing Wage
Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully comply
with such Prevailing Wage Laws. City shall provide Contractor with a copy of the
prevailing rates of per diem wages in effect at the commencement of this Agreement.
Contractor shall make copies of the prevailing rates of per diem wages for each craft,
classification or type of worker needed to execute the Services available to interested
parties upon request, and shall post copies at the Contractor's principal place of business
and at the project site. Contractor shall defend, indemnify and hold the City, its elected
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officials, officers, employees and agents free and harmless from any claim or liability
arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
3.2.13 Bonds.
3.2.13.1 Performance Bond. If specifically requested by City in Exhibit
"D" attached hereto and incorporated herein by reference, Contractor shall execute and
provide to City concurrently with this Agreement a Performance Bond in the amount of
the total, not -to -exceed compensation indicated in this Agreement, and in a form provided
or approved by the City. If such bond is required, no payment will be made to Contractor
until it has been received and approved by the City.
3.2.13.2 Payment Bond. If required by law or otherwise specifically
requested by City in Exhibit "D" attached hereto and incorporated herein by reference,
Contractor shall execute and provide to City concurrently with this Agreement a Payment
Bond in the amount of the total, not -to -exceed compensation indicated in this Agreement,
and in a form provided or approved by the City. If such bond is required, no payment will
be made to Contractor until it has been received and approved by the City.
3.2.13.3 Bond Provisions. Should, in City's sole opinion, any bond
become insufficient or any surety be found to be unsatisfactory, Contractor shall renew
or replace the affected bond within 10 days of receiving notice from City. In the event the
surety or Contractor intends to reduce or cancel any required bond, at least thirty (30)
days prior written notice shall be given to the City, and Contractor shall post acceptable
replacement bonds at least ten (10) days prior to expiration of the original bonds. No
further payments shall be deemed due or will be made under this Agreement until any
replacement bonds required by this Section are accepted by the City. To the extent, if
any, that the total compensation is increased in accordance with the Agreement, the
Contractor shall, upon request of the City, cause the amount of the bonds to be increased
accordingly and shall promptly deliver satisfactory evidence of such increase to the City.
To the extent available, the bonds shall further provide that no change or alteration of the
Agreement (including, without limitation, an increase in the total compensation, as
referred to above), extensions of time, or modifications of the time, terms, or conditions
of payment to the Contractor, will release the surety. If the Contractor fails to furnish any
required bond, the City may terminate this Agreement for cause.
3.2.13.4 Surety Qualifications. Only bonds executed by an admitted
surety insurer, as defined in Code of Civil Procedure Section 995.120, shall be accepted.
The surety must be a California -admitted surety with a current A.M. Best's rating no less
than A:VIII and satisfactory to the City. If a California -admitted surety insurer issuing
bonds does not meet these requirements, the insurer will be considered qualified if it is in
conformance with Section 995.660 of the California Code of Civil Procedure, and proof of
such is provided to the City.
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3.3 Fees and Payments.
3.3.1 Compensation. Contractor shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates
set forth in Exhibit C attached hereto and incorporated herein by reference. The total
compensation shall not exceed One hundred sixty thousand dollars ($160,000.00) per
fiscal year, without advance written approval of City's project manager. Extra Work may
be authorized, as described below, and if authorized, will be compensated at the rates
and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Contractor shall submit to City a monthly
itemized statement which indicates work completed and hours of Services rendered by
Contractor. The statement shall describe the amount of Services and supplies provided
since the initial commencement date, or since the start of the subsequent billing periods,
as appropriate, through the date of the statement. City shall, within 45 days of receiving
such statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Contractor shall not be reimbursed
for any expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Contractor perform Extra Work. As used herein, "Extra Work" means any
work which is determined by City to be necessary for the proper completion of the Project,
but which the parties did not reasonably anticipate would be necessary at the execution
of this Agreement. Contractor shall not perform, nor be compensated for, Extra Work
without written authorization from City's Representative.
3.3.5 Prevailing Wages. Contractor is aware of the requirements of
California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code
of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require
the payment of prevailing wage rates and the performance of other requirements on
"public works" and maintenance projects. If the Services are being performed as part
of an applicable "public works" or "maintenance" project, as defined by the Prevailing
Wage Laws, and if the total compensation is $1,000 or more, Contractor agrees to fully
comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the
prevailing rates of per diem wages in effect at the commencement of this Agreement.
Contractor shall make copies of the prevailing rates of per diem wages for each craft,
classification or type of worker needed to execute the Services available to interested
parties upon request, and shall post copies at the Contractor's principal place of business
and at the project site. Contractor shall defend, indemnify and hold the City, its elected
officials, officers, employees and agents free and harmless from any claim or liability
arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
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3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Contractor shall maintain complete
and accurate records with respect to all costs and expenses incurred under this
Agreement. All such records shall be clearly identifiable. Contractor shall allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of such records and any other documents created pursuant to this
Agreement. Contractor shall allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of final
payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice
to Contractor, terminate the whole or any part of this Agreement at any time and without
cause by giving written notice to Contractor of such termination, and specifying the
effective date thereof, at least seven (7) days before the effective date of such termination.
Upon termination, Contractor shall be compensated only for those services which have
been adequately rendered to City, and Contractor shall be entitled to no further
compensation. Contractor may not terminate this Agreement except for cause.
3.5.1.2 Effect of Termination. If this Agreement is terminated
as provided herein, City may require Contractor to provide all finished or unfinished
Documents and Data and other information of any kind prepared by Contractor in
connection with the performance of Services under this Agreement. Contractor shall be
required to provide such document and other information within fifteen (15) days of the
request.
3.5.1.3 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms and
in such manner as it may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
CONTRACTOR:
St. Francis Electric
975 Carden Street
San Leandro, CA 94577
Attn: Guy Smith, Vice -President
Tel: (510) 639-0639
St. Francis Electric
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CITY:
City of Rosemead
P.O. Box 399
8838 E. Valley Boulevard
Rosemead, CA 91770
Attn: Robert Chavez, Public Works
Such notice shall be deemed made when personally delivered or when mailed,
forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address. Actual notice shall be deemed adequate
notice on the date actual notice occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Document & Data; Licensing of Intellectual Property. This
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify,
reuse, or sublicense any and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or
works of authorship fixed in any tangible medium of expression, including but not limited
to, physical drawings or data magnetically or otherwise recorded on computer diskettes,
which are prepared or caused to be prepared by Contractor under this Agreement
("Documents & Data"). Contractor shall require all subcontractors to agree in writing that
City is granted a non-exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement. Contractor represents and warrants that
Contractor has the legal right to license any and all Documents & Data. Contractor makes
no such representation and warranty in regard to Documents & Data which were prepared
by design professionals other than Contractor or provided to Contractor by the City. City
shall not be limited in any way in its use of the Documents and Data at any time, provided
that any such use not within the purposes intended by this Agreement shall be at City's
sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Contractor
in connection with the performance of this Agreement shall be held confidential by
Contractor. Such materials shall not, without the prior written consent of City, be used by
Contractor for any purposes other than the performance of the Services. Nor shall such
materials be disclosed to any person or entity not connected with the performance of the
Services or the Project. Nothing furnished to Contractor which is otherwise known to
Contractor or is generally known, or has become known, to the related industry shall be
deemed confidential. Contractor shall not use City's name or insignia, photographs of the
Project, or any publicity pertaining to the Services or the Project in any magazine, trade
paper, newspaper, television or radio production or other similar medium without the prior
written consent of City.
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3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be
necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees. If either party commences an action against the
other party, either legal, administrative or otherwise, arising out of or in connection with
this Agreement, the prevailing party in such litigation shall be entitled to have and recover
from the losing party reasonable attorney's fees and all other costs of such action.
3.5.6 Indemnification. Contractor shall defend, indemnify and hold the
City, its officials, officers, employees, volunteers and agents free and harmless from any
and all claims, demands, causes of action, costs, expenses, liability, loss, damage or
injury, in law or equity, to property or persons, including wrongful death, in any manner
arising out of or incident to any alleged acts, omissions or willful misconduct of Contractor,
its officials, officers, employees, agents, consultants and contractors arising out of or in
connection with the performance of the Services, the Project or this Agreement, including
without limitation the payment of all consequential damages and attorneys fees and other
related costs and expenses. Contractor shall defend, at Contractor's own cost, expense
and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind
that may be brought or instituted against City, its directors, officials, officers, employees,
agents or volunteers. Contractor shall pay and satisfy any judgment, award or decree
that may be rendered against City or its directors, officials, officers, employees, agents or
volunteers, in any such suit, action or other legal proceeding. Contractor shall reimburse
City and its directors, officials, officers, employees, agents and/or volunteers, for any and
all legal expenses and costs incurred by each of them in connection therewith or in
enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be
restricted to insurance proceeds, if any, received by the City, its directors, officials officers,
employees, agents or volunteers.
3.5.7 Entire Agreement. This Agreement contains the entire Agreement
of the parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Agreement may only be modified by
a writing signed by both parties.
3.5.8 Governing Law. This Agreement shall be governed by the laws of
the State of California. Venue shall be in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
3.5.10 City's Right to Employ Other Contractors. City reserves right to
employ other contractors in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
St. Francis Electric
Page 10 of 11
3.5.12 Assignment or Transfer. Contractor shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for or
against any Party. Any term referencing time, days or period for performance shall be
deemed calendar days and not work days. All references to Contractor include all
personnel, employees, agents, and subcontractors of Contractor, except as otherwise
specified in this Agreement. All references to City include its elected officials, officers,
employees, agents, and volunteers except as otherwise specified in this Agreement. The
captions of the various articles and paragraphs are for convenience and ease of reference
only, and do not define, limit, augment, or describe the scope, content, or intent of this
Agreement.
3.5.14 Amendment; Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the other
Party any contractual rights by custom, estoppel, or otherwise.
3.5.16 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. Contractor maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee
working solely for Contractor, to solicit or secure this Agreement. Further, Contractor
warrants that it has not paid nor has it agreed to pay any company or person, other than
a bona fide employee working solely for Contractor, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, City shall have the
right to rescind this Agreement without liability. For the term of this Agreement, no
member, officer or employee of City, during the term of his or her service with City, shall
have any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising therefrom.
St. Francis Electric
Page 11 of 11
3.5.19 Equal Opportunity Employment. Contractor represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited
to, all activities related to initial employment, upgrading, demotion, transfer, recruitment
or recruitment advertising, layoff or termination. Contractor shall also comply with all
relevant provisions of City's Minority Business Enterprise program, Affirmative Action
Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder, Contractor certifies
that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Worker's Compensation or to
undertake self-insurance in accordance with the provisions of that Code, and agrees to
comply with such provisions before commencing the performance of the Services.
3.5.21 Authority to Enter Agreement. Contractor has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement.
Each Party warrants that the individuals who have signed this Agreement have the legal
power, right, and authority to make this Agreement and bind each respective Party.
3.5.22 Counterparts. This Agreement may be signed in counterparts, each
of which shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Contractor shall not subcontract any
portion of the work required by this Agreement, except as expressly stated herein, without
prior written approval of City. Subcontracts, if any, shall contain a provision making them
subject to all provisions stipulated in this Agreement.
[signatures on next page]
St. Francis Electric
Page 12 of 11
CITY OF ROSEMEAD
B
oria Molleda, City Manager
Attest:
r -AL
Ericka Hernandez
City Clerk
Approved as to Form:
Rachel Richman
I '&-�
City Attorney
02/08
Documentl2
St. Francis Electric
�3
By:
Name:
Title:
[If Corporation, TWO SIGNATURES, President
OR Vice President AND Secretary, AND
CORPORATE SEAL OF CONTRACTOR
REQUIRED]
By:
Name:
Title: