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PW 2nd & 3rd Street Operations with SMART ExtensionAGREEMENT FOR PROFESSIONAL SERVICES WITH KIMLEY-HORN AND ASSOCIATES, INC., FOR PRELIMINARY EVALUATION OF SECOND AND THIRD STREET OPERATIONS WITH SMART EXTENSION This Agreement is made and entered into this J/..rH-day of .:Dec.e:H85 it , 2017, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and KIMLEY-HORN AND ASSOCIATES, INC., a corporation authorized to do business in California (hereinafter "CONSULTANT"). RECITALS WHEREAS, in connection with the Sonoma Marin Area Rail Transit District (SMART) project to extend its commuter rail service to Larkpsur Landing, the CITY has detennined that a professional evaluation of the potential traffic impacts that will result from the proposed train crossings at Second and Third Street in order to detennine which traffic control improvements will be necessary; and WHEREAS, the CONSULTANT has agreed to render such services; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. The Director of Public Works is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONSULTANT'S Project Director. CONSULTANT shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Kevin Aguigui is hereby designated as the PROJECT DIRECTOR for CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONSULTANT shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONSULTANT. CONSULTANT shall perform the duties and/or provide the services described in CONSULTANT'S proposal dated December 8, 2017, marked as Exhibit "A," attached hereto, and incorporated herein. 3. DUTIES OF CITY. CITY shall compensate CONSULTANT as provided in Paragraph 4, and shall provide assistance and site access to CONSULTANT as described in Exhibit "A" attached hereto and incorporated herein. 2L\S 4. COMPENSATION. For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT on a lump sum basis for services rendered in accordance with Exhibit "A" attached, in a lump sum amount of$19,950. Payment wiII be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONSULTANT. 5. TERM OF AGREEMENT. The tenn of this Agreement shall commence upon the date of execution of this Agreement and end on December 31, 2019 when the work shall have been completed, unless the parties agree to extend this Agreement for another 90 days, as approved in writing by City Manager. 6. TERMINATION. A . Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause ofthe tennination, to the reasonable satisfaction ofthe party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of tennination, neither party shall incur additional obligations under any provision ofthis Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONSULTANT and any and all of CONSULTANT's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after tennination. 7. OWNERSHIP OF DOCUMENTS. Upon completion of all work under this Agreement, ownership and title to all reports, documents, plans, specifications, and estimates produced as part of this Agreement will automatically be vested in the CITY; and no further agreement will be necessary to transfer ownership to the CITY. CONSULTANT shall furnish to CITY all necessary copies of data needed to complete the review and approval process . 8. INSPECTION AND AUDIT. Upon reasonable notice, CONSULTANT shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONSULTANT in connection with its performance of 2 its duties under this Agreement. CONSULTANT shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10 . INSURANCE. A. Scope of Coverage. During the tenn of this Agreement, CONSULTANT shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury , personal injury, or property damage . 2. An automobile liability (owned, non-owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per claim/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONSULT ANT's perfonnance of services under this Agreement. Where CONSULT ANT is a professional not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section. 4 . If it employs any person, CONSULTANTshall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily inj ury or disease . CONSULTANT's worker's compensation insW"ance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability and Worker's Compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 3 2. The additional insured coverage under CONSULTANT'S insurance policies shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONSULTANT'S policies shall be at least as broad as ISO form CG20 010413 . 3. Except for professional liability insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4 . By execution of this Agreement, CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years . 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthennore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONSULTANT's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attomey, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment oflosses and related investigations, claims administration, attomey's fees and defense expenses. 4 D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONSULTANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to fonn and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. Except as otherwise provided in Paragraph B., CONSULTANT shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to reasonable attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONSULTANT'S perfonnance of its obligations or conduct of its operations under this Agreement. The CONSULTANT's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONSULTANT's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONSULTANT's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONSULTANT'S perfonnance of or operations under this Agreement, CONSULTANT shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. Where the services to be provided by CONSULTANT under this Agreement are design professional services to be performed by a design professional as that term is defined under Civil Code Section 2782.8, CONSULTANT shall, to the fullest extent permitted by law, indemnify, release, defend and hold harmless the City Indemnitees from and against any CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT in the perfonnance of its duties and obligations under this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such CLAIM which is caused by the sole negligence or willful misconduct of CITY. 5 C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONSULTANT shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the perfonnance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONSULTANT shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the perfonnance of its duties and obligations under this Agreement. CONSULTANT shall perfonn all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONSULTANT shall release, defend, indemnify and hold hannless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any applicable laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONSULTANT do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the tenns and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or pennitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: TO CONSULTANT's Project Director: Bill Guerin Director of Public Works City of San Rafael 111 Morphew Street San Rafael, CA 94901 Kevin Aguigui Kimley-Horn and Associates, Inc . 1300 Clay Street, Suite 325 Oakland, CA 94612 6 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONSULTANT and CITY expressly intend and agree that the status of CONSULTANT, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT --AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter ofthis Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONSULTANT and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The tenns and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONSULTANT and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT under this Agreement, any monies which CONSULTANT owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any tenn, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, perfonnance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. 7 The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the perfOlmance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONSULTANT shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work perfonned under this Agreement, until CONSULTANT has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws ofthe State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL CONSULTANT --11 Printed Name: 3:>1{ \ ~ <b~~ Title of Corporate Officer: J t' c....e f( p ~I' d...LA:::t ATTEST: and, h~ c::.,~,e~ ESTHER C. BEIRNE, City Clerk By:~ __ ~~~~ __ ~ ______ __ $'U~y ~~ APPROVED AS TO FORM: Title of Corporate OfficerASSr~. Se..t.. r" ~M'y 8 Kimley») Horn December 8,2017 Mr. Hunter Young, P.E. City of San Rafael Public Works Department 111 Morphew Street San Rafael, CA 94901 1300 Clay Street, Suite 325 Oakland, CA 94612 (510) 625-0712 RE: Proposal for Professional Services for the Preliminary Evaluation of 2 nd and 3rd Streets Operations with the SMART Extension Dear Hunter: Kimley-Horn is pleased to submit our proposal and fee estimate to provide professional engineering services for the initial evaluation of 2 nd and 3rd Streets with the Sonoma-Marin Area Rail Transit (SMART) extension into Larkspur. This evaluation will assess traffic operations along these two streets with SMART rail operations. The intent is to determine how the traffic operations will function when the rail is extended crossing 2 nd and 3rd Streets, and whattype of traffic control will be needed at the rail crossings such as a queue cutter or pre-s ignal. Attached is our detailed scope of services, schedule, and fee estimate for your review . We appreciate the opportunity to work with you on this project. If you have any questions, please do not hesitate to call me at (510) 350-0217 (office) or (510) 393-6232 (cell). Very truly yours, KIMLEY-HORN AND ASSOCIA TES, INC. Kevin Aguigui, P.E ., T.E., E.E., CSEP Project Manager EXI-HBil" A Kimley») Horn PROJECT UNDERSTANDING SMART anticipates and is working on extending their service from downtown San Rafael to the Larkspur Landing (slated for the end of 2018). As part of this extension, SMART plans on using the existing at- grade crossings on Second and Third Streets. Second and Third Street are the main east and west corridors through downtown San Rafael. In order to provide the safest traffic systems possible along these roadways with the SMART extension, in particular strategies to prevent vehicles from stopping on the rail tracks, a preliminary study is necessary to determine if a separate queue cutter signal or a pre-signal is warranted for the at-grade crossings along these roadways. SCOPE OF WORK Task 1: Project Management and Coordination This task includes project management related activities including meetings, preparation of invoices, budget oversight, adherence to project scheduling, and general project coordination. We will work with the City at the start of the project to establish the project schedule and the completion of the initial deliverables. A kick-off meeting will be arranged with City staff to review a nd discuss some of the elements associated with project and to review project schedule, the deliverables, and the overall project approach. As necessary, Kimley-Horn will coordinate with SMART, Caltrans, and the CPUC, including any needed meetings with these external agencies to gather information as part of the preliminary evaluation. Task 2.0: Preliminary Evaluation Study KimleY-Horn will conduct a multimodal analysis of the proposed rail crossings with the purpose of identifying and validating the necessary, appropriate, and reasonable facilities and improvements to keep vehicles from stopping on the SMART tracks on 2 nd and 3rd Streets. We will evaluate conformance with the CPUC regulations, the California Manual on Uniform Traffic Control Devices (CA MUTeD), and other best practices for transportation safety. We will examine current traffic data, site constraints, and current State and Federal regulatory codes to determine whether the existing traffic signals could be modified to achieve the safety operations necessary to prevent vehicles from stopping on the tracks. The outcome of the study will be to identify the recommended improvements which could include Queue Cutter signals and/or Pre-signals. We will utilize existing traffic counts and existing traffic models that have been prepared for the project intersections which includes: • 2nd Street and Tamalpais Avenue • 2nd Street and Hetherton Street Kimley») Horn • 3rd Street and Tamalpais Avenue • 3rd Street and Hetherton Street We will assess the potential traffic operations with the at-grade crossings including traffic control, vehicular queuing, traffic signal infrastructure, vehicle-rail interactions, and pedestrian and bicycle access/circulation . As part of the evaluation will develop up to three (3) alternatives for traffic signal improvements for the at-grade crossings and identify a preferred alternative. Oeliverables: • Draft Preliminary Study (technical memorandum) • Final Preliminary Study SCHEDULE Kimley-Horn is prepared to begin work immediately upon receipt ofthe notice to proceed (NTP) and will endeavor to meet your scheduling needs. KimleY-Horn will conduct our services in accordance with the schedule and milestones as follows: Task Time Kick-off Meeting With in one week after NTP Prepare Preliminary Evaluation Study (draft techn ic al memorandum) Four (4) weeks after kick-off meeting PROFESSIONAL FEE Kimley-Horn will provide the Scope of Services for a Firm Fixed Price fee of $19,500. The fee includes labor cost, direct and indirect expenses incurred in performing these services. Fees will be invoiced monthly based upon the percent completed as of the invoice date. Materials expenditures shall be billed at cost with no mark-ups applied . Those services other than those set forth in the Scope of Services shall constitute extra services . Extra services, such as attendance at meetings other than those included in the Scope of Services and evaluation of additional intersections, shall be performed only with your authorization, and for additional fees to be negotiated prior to authorization. CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER Contracting Department: Public Works Project Manager: KM Extension: 3389 Project Name: 2nd & 3rd St Queue Cutters Contractor's Contact: Kimley Hom Associates Inc. Contract's Email: Kevin.aguigui@kirnley-horn.com RESPONSIBLE Step DEPARTMENT DESCR[PT[ON a. Email PINS Introductory Notice to Contractor b. Emai[ Contract (in Word) & attachments to City Attorney clo I Project Manager Laraine.Gittens @cityofsanrafae[.org a. Review, revise and comment on draft agreement and return to Project Mana~er b. Confirm insurance requirements, create Job on PINS, send PINS 2 City Attorney insurance notice to contractor. Forward three (3) originals of final agreement to contractor for their 3 Project Manager signature . When necessary, • contractor-signed agreement agendized for Council approval • PSA > $20,000 or Purchase> $35,000: or Public Works Contract> 4 Project Manager $125,000 PRINT CONTIN UE ROUT ING PROCE SS WI T H HARD COPY Fonvard signed original agreement to City Attorney with printed copy of 5 Project Mana~er this routing form 6 City Attorney Review and approve hard copy of signed agreement Review and approve insurance in PINS, and bonds (for public works 7 City Attorney contracts) City 8 ManagerlMayor Agreement executed by Council authorized official Attest signatures, retains original agreement and fonvards copies to 9 City Clerk project manager 10 Project Manager Forward Final Copy to Contractor COMPLETED DATE [ II29/20[7 [ II[9/2017 1214/20[7 12/4/2017 12/4/2017 N/A 12113/2017 l2-/l3/ n 1~}~Jlt 12/-/'i~ () \).._'~,17 REV[EWER Initial KM KM LG LG KM KM HY &: ~