1995-0307_ORANGE COUNTY TRANSPORTATION AUTHORITY_Agreement No. C-94-880 1 AGREEMENT NO. C-94-880
2 BETWEEN
3 ORANGE COUNTY TRANSPORTATION AUTHORITY
4 AND
5 CITY OF SAN JUAN CAPISTRANO
// /it('
6 THIS AGREEMENT is entered into this f" day of /` a vd-\ , 1-91-4 by
7 and between the Orange County Transportation Authority, 550 South Main Street,
8 P.O. Box 14184, Orange, California 92613-1584, a public corporation of the state of
9 California (hereinafter referred to as "AUTHORITY") , and City of San Juan Capistrano,
10 32400 Paseo Adelanto, San Juan Capistrano, California 92675 (hereinafter referred to
11 as "CITY")
12 WITNESSETH:
13 WHEREAS, AUTHORITY has recently entered into an agreement with the South Coast
14 Air Quality Management District which provides for funding to implement and monitor
15 transportation programs which will reduce air pollution from motor vehicles ; and
16 WHEREAS, CITY is interested in participating in this program and has developed
17 a project for inclusion; and
18 WHEREAS, AUTHORITY has agreed to provide funds received from the South Coast
19 Air Quality Management District to implement CITY ' s project;
20 NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as
21 follows:
22 ARTICLE 1. COMPLETE AGREEMENT
23 This Agreement, including all exhibits and other documents incorporated herein
24 and made applicable by reference, constitutes the complete and exclusive statement
25 of the terms and conditions of the agreement between AUTHORITY and CITY and it
26 supersedes all prior representations, understandings and communications . The
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1 invalidity in whole or in part of any term or condition of the agreement shall not
2 affect the validity of other terms or conditions . AUTHORITY ' s failure to insist in
3 any one or more instances upon CITY ' s performance of any term(s) or condition(s) of
4 this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY' s
s right to such performance or to future performance of such term(s) or condition(s)
6 and CITY ' s obligation in respect thereto shall continue in full force and effect.
7 Changes hereto shall not be binding upon AUTHORITY except when specifically confirmed
8 in writing by an authorized representative of AUTHORITY and issued in accordance with
9 Article 10 hereof.
to ARTICLE 2. AUTHORITY DESIGNEE
11 The Chief Executive Officer of AUTHORITY, or his designee, shall have the
12 authority to act for and exercise any of the rights of AUTHORITY as set forth in this
13 Agreement, subsequent to, and in accordance with the authorization granted by
14 AUTHORITY' s Board of Directors . The Mayor of CITY or his designee, shall have the
15 authority to act for and exercise any of the rights of CITY as set forth in this
16 Agreement.
17 ARTICLE 3. STATEMENT OF WORK
18 CITY shall furnish all labor, materials, equipment, required licenses, permits,
19 fees, and other appropriate legal authorization from all applicable federal , state
20 and local jurisdictions to perform the work necessary to complete in a manner
21 satisfactory to AUTHORITY the project set forth in Exhibit A, entitled "Scope of
22 Work, " attached to and, by this reference, incorporated in and made a part of this
23 Agreement.
24 ARTICLE 4. TERM OF AGREEMENT
25 This Agreement shall commence upon execution by both parties and shall continue
26 in full force and effect through June 30, 1996, unless earlier terminated as provided
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1 elsewhere in this Agreement. CITY shall complete all work and submit final invoice
2 to AUTHORITY by June 30, 1996. Failure to complete all work or submit final invoice
3 by this deadline may jeopardize CITY' s receipt of final payment or may result in CITY
4 reimbursing of all funds previously paid by AUTHORITY.
s ARTICLE 5. PAYMENT
6 A. For CITY' s full and complete performance of its obligations under this
7 Agreement, AUTHORITY shall pay CITY a firm-fixed sum in accordance with the provisions
8 of this Article.
9 B. The following schedule shall establish the firm-fixed amounts paid to CITY
to by AUTHORITY for each project set forth in the Scope of Work:
11 Project Firm-Fixed Amount
12 Telecommuting Work Center $18,351.00
13 C. CITY shall invoice AUTHORITY for an amount not greater than ninety
14 percent (90%) of the total firm fixed amount upon commencement of work. The remaining
1s ten percent (10%) shall be paid to CITY upon completion of all work, subject to the
16 restrictions specified elsewhere in this article.
17 D. Invoices shall be submitted by CITY in duplicate to AUTHORITY' s Accounts
is Payable office. AUTHORITY shall remit payment within thirty (30) calendar days of
19 the receipt and approval of each invoice. Each invoice shall include the following
20 information:
21 1. Agreement No. C-94-880;
22 2. Project(s) for which payment is being requested;
23 3. Total Invoice (including project-to-date cumulative invoice amount) ;
24 4. Itemized breakdown of allowable costs incurred during the time
25 period; and
26 5. Such other information as requested by AUTHORITY.
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1 E. CITY acknowledges, that as a stipulation for receipt of these
2 "pass-through" funds by the South Coast Air Quality Management District, the project
3 funded under this Agreement must be completed, including the final report submitted
4 and the proper invoice received by AUTHORITY, no later than June 30, 1996. Any funds
s not expended by this date shall be returned to AUTHORITY. CITY further acknowledges
6 that any funds expended on the project or any task, phase, service or work element
7 within an approved project which is not authorized by AUTHORITY shall be the sole
s responsibility of CITY.
9 ARTICLE 6. MAXIMUM OBLIGATION
10 Notwithstanding any provisions of this Agreement to the contrary, AUTHORITY and
11 CITY mutually agree that AUTHORITY' s maximum cumulative payment obligation hereunder
12 (including obligation for CITY ' s profit) shall be Eighteen Thousand, Three Hundred
13 Fifty-One Dollars ($18,351 .00) , including all amounts payable to CITY for its
14 subcontracts, leases, materials and costs arising from, or due to termination of, this
15 Agreement.
16 ARTICLE 7. NOTICES
17 All notices hereunder and communications regarding the interpretation of the
18 terms of this Agreement, or changes thereto, shall be effected by delivery of said
19 notices in person or by depositing said notices in the U.S . mail , registered or
20 certified mail , return receipt requested, postage prepaid and addressed as follows:
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AGREEMENT NO. C-94-880
1 To CITY: To AUTHORITY:
2 City of San Juan Capistrano Orange County Transportation Authority
3 32400 Paseo Adelanto 550 South Main Street
4 San Juan Capistrano, CA 92675 P.O. Box 14184
5 Orange, CA 92613-1584
6 ATTENTION: Jennifer Murray ATTENTION: Contracts Administrator
7 (714/493-1171) (714/560-5623)
8 ARTICLE 8. INDEPENDENT CONSULTANT
9 CITY' s relationship to AUTHORITY in the performance of this Agreement is that of
10 an independent contractor. CITY' s personnel performing services under this Agreement
11 shall at all times be under CITY's exclusive direction and control and shall be
12 employees of CITY and not employees of AUTHORITY. CITY shall pay all wages, salaries
13 and other amounts due its employees in connection with this Agreement and shall be
14 responsible for all reports and obligations respecting them, such as social security,
is income tax withholding, unemployment compensation, workers ' compensation and similar
16 matters.
17 ARTICLE 9. INSURANCE
18 A. During performance hereunder, CITY shall maintain the following insurance,
19 and CITY shall not of its own initiative cause such insurance to be canceled or
20 materially changed during the term of this Agreement.
21 1. Comprehensive General Liability, including Contractual , Independent
22 Contractors, and Products/Completed Operations; and Automobile Liability, including
23 any autos; with at least the following limits of liability:
24 a. Primary Bodily Injury Liability limits of $500,000 per
25 occurrence; and
26 b. Primary Property Damage Liability limits of $500,000 per
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1 occurrence; or
2 c. Combined single limits of liability for Primary Bodily Injury
3 and Primary Property Damage of $1,000,000 per occurrence.
4 2. Workers ' Compensation Insurance with the limits established and
5 required by the state of California.
6 B. Prior to commencement of any work hereunder, CITY shall furnish to
7 AUTHORITY' s Contracts Administrator broker-issued certificate(s) of insurance showing
8 the required insurance coverages for CITY and further providing that:
9 1. AUTHORITY is named as an additional insured on Comprehensive General
io Liability and Automobile Liability insurance with respect to performance hereunder;
11 and
12 2. The coverage shall be primary noncontributory as to any other
13 insurance with respect to performance hereunder; and
14 3. Thirty (30) days prior written notice of cancellation or material
is change in coverage be given to AUTHORITY.
16 C. "Occurrence, " as used herein, means any event or related exposure to
17 conditions which result in bodily injury or property damage.
18 ARTICLE 10. CHANGES
19 By written notice or order, AUTHORITY may, from time to time, order work
20 suspension or make changes in the general scope of this Agreement including, but not
21 limited to, the services furnished to AUTHORITY. If any such change causes an
22 increase or decrease in the price of this Agreement or in the time required for its
23 performance, CITY shall promptly notify AUTHORITY thereof and assert its claim for
24 adjustment within ten (10) days after the change is ordered, and an equitable
25 adjustment shall be negotiated. However, nothing in this clause shall excuse CITY
26 from proceeding immediately with the agreement as changed.
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1 ARTICLE 11. DISPUTES
2 This Agreement shall be construed and all disputes hereunder shall be settled in
3 accordance with the laws of the state of California. Pending final resolution of a
4 dispute hereunder, CITY shall proceed diligently with the performance of this
s Agreement and in accordance with AUTHORITY ' s instructions .
6 ARTICLE 12. TERMINATION
7 A. AUTHORITY may terminate this Agreement for its convenience at any time, in
8 whole or part by giving CITY written notice thereof. Upon such notice, AUTHORITY
9 shall pay CITY its allowable costs incurred to date of termination and those allowable
io costs determined by AUTHORITY to be reasonably necessary to effect such termination.
11 Thereafter, CITY shall have no further claims against AUTHORITY under this Agreement.
12 B. AUTHORITY may terminate this Agreement for CITY ' s default if a federal or
13 state proceeding for the relief of debtors is undertaken by or against CITY, or if
14 CITY makes an assignment for the benefit of creditors, or if CITY breaches any term(s)
is or violates any provision(s) of this Agreement and does not cure such breach or
16 violation within ten (10) days after receipt of written notice thereof by AUTHORITY.
17 CITY shall be liable for any and all reasonable costs incurred by AUTHORITY as the
18 result of such default including, but not limited to, reprocurement costs of the same
19 or similar services defaulted by CITY under this Agreement.
20 ARTICLE 13. INDEMNIFICATION
21 CITY shall indemnify, defend and save harmless AUTHORITY, its officers,
22 directors, employees and agents from and against any and all claims (including
23 attorneys ' fees and reasonable expenses for litigation or settlement) for any loss
24 or damages for bodily injuries, including death, or loss of, damage to or loss of use
25 of property caused by the negligent acts, omissions or willful misconduct by CITY,
26 its officers, directors, employees, agents, subcontractors or suppliers in connection
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1 with or arising out of the performance of this Agreement.
2 ARTICLE 14. ASSIGNMENTS AND SUBCONTRACTING
3 Neither this Agreement nor any interest herein nor claim hereunder may be
4 assigned by CITY either voluntarily or by operation of law, nor may all or any part
5 of this Agreement be subcontracted by CITY, without the prior written consent of
6 AUTHORITY. Consent by AUTHORITY shall not be deemed to relieve CITY of its
7 obligations to comply fully with all terms and conditions of this Agreement.
8 ARTICLE 15. AUDIT AND INSPECTION OF RECORDS
9 A. After receipt of reasonable notice and during the regular business hours
10 of CITY, CITY shall provide AUTHORITY, the South Coast Air Quality Management District
ii or other agents of AUTHORITY, such access to CITY ' s books, records, payroll documents
12 and facilities as such parties deem necessary to examine, audit and inspect all
13 accounting books, records, work data, documents and activities directly related
14 hereto. CITY shall maintain such books, records, data and documents in accordance
is with generally accepted accounting principles and shall clearly identify and make such
16 items readily accessible to such parties during CITY' s performance hereunder and for
17 a period of four (4) years from the date of final payment by AUTHORITY hereunder.
18 CITY agrees to include this requirement in all subcontractor' s agreements as well .
19 B. During the audit process, if funds are determined to have been expended
20 inappropriately, AUTHORITY may withhold any remaining funds to CITY equal to the
21 amount which was inappropriately expended. Such withholding shall not be construed
22 as AUTHORITY ' s sole remedy and shall not relieve CITY of its obligation to perform
23 under the terms of this Agreement.
24 ARTICLE 16. FEDERAL, STATE AND LOCAL LAWS
25 CITY warrants that in the performance of this Agreement, it shall comply with all
26 applicable federal , state and local laws, statutes and ordinances and all lawful
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1 orders, rules and regulations promulgated thereunder.
2 ARTICLE 17. EQUAL EMPLOYMENT OPPORTUNITY
3 In connection with its performance under this Agreement, CITY shall not
4 discriminate against any employee or applicant for employment because of race,
5 religion, color, sex, age or national origin. CITY shall take affirmative action to
6 ensure that applicants are employed, and that employees are treated during their
7 employment, without regard to their race, religion, color, sex, age or national
8 origin. Such actions shall include, but not be limited to, the following:
9 employment, upgrading, demotion or transfer; recruitment or recruitment advertising;
to layoff or termination; rates of pay or other forms of compensation; and selection for
11 training, including apprenticeship.
12 ARTICLE 18. REPORT FORMAT
13 A. CITY shall submit quarterly progress reports to AUTHORITY within five (5)
14 days from the end of the reporting period. Such reports shall detail : 1) work
15 performed during the current reporting period; 2) work planned for the next reporting
16 period; 3) problems identified, solved, and/or unresolved; and 4) the percentage of
17 project(s) completion.
18 B. CITY shall provide AUTHORITY with a comprehensive final report prior to end
19 of the term of this Agreement or on June 30, 1996, whichever date is earlier. Failure
20 to submit the final report by June 30, 1996 may jeopardize CITY ' s funding as specified
21 in Article 5. The final report shall be subject to review by AUTHORITY and the South
22 Coast Air Quality Management District. The report shall document the work performed
23 and the results thereof. It shall also contain, in detail , the amount of reduction
24 of mobile source air pollution emissions that occurred as a result of the project ' s
25 implementation.
26 C. The reports shall be prepared on letter size paper and submitted in the
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1 following manner: recycled paper, stapled (not bound) , black and white, double-sided
2 print, and no three-ring, spiral or plastic binders or cardstock covers .
3 ARTICLE 19. PROHIBITED INTERESTS
4 CITY covenants that, for the term of this Agreement, no director, member, officer
5 or employee of AUTHORITY during his/her tenure in office or for one (1) year
6 thereafter shall have any interest, direct or indirect, in this Agreement or the
7 proceeds thereof.
8 ARTICLE 20. OWNERSHIP OF REPORTS AND DOCUMENTS
9 The originals of all letters, documents, reports and other products and data
10 produced under this Agreement shall be delivered to, and become the property of
11 AUTHORITY. Copies may be made for CITY' s records but shall not be furnished to others
12 without written authorization from AUTHORITY. Such deliverables shall be deemed works
13 made for hire and all rights in copyright therein shall be retained by AUTHORITY.
14 ARTICLE 21. PATENT AND COPYRIGHT INFRINGEMENT
is A. In lieu of any other warranty by AUTHORITY or CITY against patent or
16 copyright infringement, statutory or otherwise, it is agreed that CITY shall defend
17 at its expense any suit or claim against AUTHORITY on account of any allegation that
18 any item furnished under this Agreement or the normal use or sale thereof arising out
19 of the performance of this Agreement, infringes upon any presently existing U.S.
20 letters patent or copyright and CITY shall pay all costs and damages finally awarded
21 in any such suit or claim, provided that CITY is promptly notified in writing of the
22 suit or claim and given authority, information and assistance at CITY ' s expense for
23 the defense of same. However, CITY will not indemnify AUTHORITY if the suit or claim
24 results from: (1) AUTHORITY ' s alteration of a deliverable, such that said deliverable
25 in its altered form infringes upon any presently existing U.S. letters patent or
26 copyright; or (2) the use of a deliverable in combination with other material not
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1 provided by CITY when such use in combination infringes upon an existing U.S. letters
2 patent or copyright.
3 B. CITY shall have sole control of the defense of any such claim or suit and
4 all negotiations for settlement thereof. CITY shall not be obligated to indemnify
5 AUTHORITY under any settlement made without CITY ' s consent or in the event AUTHORITY
6 fails to cooperate fully in the defense of any suit or claim, provided, however, that
7 said defense shall be at CITY ' s expense. If the use or sale of said item is enjoined
8 as a result of such suit or claim, CITY, at no expense to AUTHORITY, shall obtain for
9 AUTHORITY the right to use and sell said item, or shall substitute an equivalent item
10 acceptable to AUTHORITY and extend this patent and copyright indemnity thereto.
11 ARTICLE 22. FORCE MAJEURE
12 Either party shall be excused from performing its obligations under this
13 Agreement during the time and to the extent that it is prevented from performing by
14 a cause beyond its control , including but not limited to: any incidence of fire,
15 flood or strike; acts of God; commandeering of material , products, plants or
16 facilities by the federal , state or local government; national fuel shortage; or a
17 material act of omission by the other party; when satisfactory evidence of such cause
18 is presented to the other party, and provided further that such nonperformance is
19 unforeseeable, beyond the control and is not due to the fault or negligence of the
20 party not performing.
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1 This Agreement shall be made effective upon execution by both parties .
2 IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C-94-880
3 to be executed on the date first above written.
4 CITY OF S, . JUAN CAPISTRANO ORANGE COUNTY T NSPORTATION AUTHORITY
s By / _ By
Stan OfteTie
6 Title Carolyn Nash, Mayor 3/7/95 Chief Executive Officer
7 APPROVED AS TO FO M• APPROVED ,S TO FORM:
8 By , By'k/:4t.,/
sel Kennar• R. Smart, Ji11111
9 -3/A-- General Counsel
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Agreement No. C-94-880
Exhibit A
Scope Of Work
Transportation Control Measures Program
Project Description
Description: The proposed telecenter would serve as an office facility where
employees of diverse companies could go to perform their normal
work duties in a professional working environment. The completed
center would provide area residents with office space, computers,
telephones, a fax machine, and a copier. By providing these
services close to home, many commuters would be able to avoid
long trips along busy arterials and freeways.
The completed center will be located in the Ortega Business Park,
which is easily accessible by transit and non-motorized
transportation. Nearby amenities such as restaurants and
professional services will minimize the need for an automobile to
conduct business during the work day.