AGREEMENT WITH INDEPENDENT CONTRACTOR

 

This Agreement entered this 4th day of February, 2003, by and between the COUNTY OF SAN MATEO, a political subdivision of the State of California, hereinafter called "County," and KLEINFELDER, INC., hereinafter called "Contractor."

 

W I T N E S S E T H

 

WHEREAS, the County has the authority to engage independent contractors to perform sundry services for the County, with or without the furnishing of materials; and

 

WHEREAS, it is necessary and desirable that Contractor be engaged by County for the purpose of performing services hereinafter described.

 

NOW, THEREFORE, IT IS HEREBY AGREED by the parties as follows:

 

1.

Services to be Performed by Contractor. In consideration of the payments hereinafter set forth, Contractor shall perform services for County in accordance with the terms, conditions and specifications set forth herein and in Exhibit "A" attached hereto and by this reference made a part hereof. Contractor shall ensure compliance with all state, federal and local laws or rules applicable to performance of the work required under this contract.

   

2.

Payments. In consideration of the services rendered in accordance with all terms, conditions and specifications set forth herein and in Exhibit "A," County shall make payment to Contractor in the manner specified in Exhibit "A." County will pay completed invoices within 30 days after the invoice date. In the event that the County makes any advance payments, Contractor agrees to refund any amounts in excess of the amount owed by the County at the time of contract termination. The County reserves the right to withhold payment if the County determines that the quantity or quality of the work performed is unacceptable.

   

3.

Relationship of the Parties. It is expressly understood that this is an Agreement by and between independent contractors and is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of independent contractors. Contractor expressly acknowledges and accepts his/her tax status and the tax consequences of an independent contractor. Further, as an independent contractor, Contractor expressly acknowledges and accepts that he/she has no rights, benefits, privileges and/or claims in any form whatsoever under, from, through and/or pursuant to the San Mateo County Civil Service Rules.

   

4.

Assignments and Subcontracts. Contractor shall not assign this Agreement or any portion thereof to a third party without the prior written consent of County, and any attempted assignment without such prior written consent, in violation of this section, shall automatically terminate this Agreement.

   
 

Contractor shall not employ subcontractors or consultants to carry out the responsibilities undertaken pursuant to this contract without the prior written consent of the County. All assignees, subcontractors, or consultants approved by the County shall be subject to the same terms and conditions applicable to Contractor under this Agreement, and Contractor shall be liable for the assignee's, subcontractor's or consultant's act and/or omissions. All agreements between Contractor and subcontractor and/or assignee for services pursuant to this Agreement shall be in writing and shall be provided to the County.

   

5.

Hold Harmless. The Contractor shall indemnify and save harmless the County, its officers, agents, employees, and servants from all claims, suits or actions of every name, kind and description, brought for, or on account of injuries to or death of any person, including Contractor, or damage to property of any kind whatsoever and to whomsoever belonging to the extent resulting from the negligent acts, errors, omissions or willful misconduct of Contractor in the performance of any work required by this Agreement of Contractor, its officers, agents, employees and/or servants, provided that this shall not apply to injuries or damage for which County has been found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.

   
 

The duty of the Contractor to indemnify and save harmless, as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.

   

6.

Insurance. The Contractor shall not commence work under this Agreement until all insurance required under this section has been obtained and such insurance has been approved by the Director of the Environmental Services Agency. The Contractor shall furnish the Environmental Services Agency with Certificates of Insurance evidencing the required coverage and there shall be a specific contractual liability endorsement extending the Contractor's coverage to include the contractual liability assumed by the Contractor pursuant to this Agreement. These Certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to the Environmental Services Agency of any pending change in the limits of liability or of any cancellation or modification of the policy.

   
 

In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, County, at its option, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.

   
 

a.

Workers' Compensation and Employer Liability Insurance. The Contractor shall have in effect, during the entire life of this Agreement, Workers' Compensation and Employer Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor makes the following certification, required by Section 1861 of the California Labor Code:

     
   

I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I will comply with such provisions before commencing the performance of the work of this Agreement.

     
   

I have no employees and, therefore, will not submit a Certificate of Workers' Compensation.

     
     
     
     

Contractor Signature

     

(Sign only if Contractor has no employees)

     
 

b.

Liability Insurance. The Contractor shall take out and maintain during the life of this Agreement such Bodily Injury Liability and Property Damage Liability Insurance as shall protect him while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as any and all operations under this Agreement, whether such operations be by himself or any subcontractor or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall not be less than the amount specified below.

     
   

Such insurance shall include:

     
   

(1)

Comprehensive General Liability

$1,000,000

         
   

(2)

Motor Vehicle Liability Insurance

$1,000,000

         
   

(3)

Professional Liability

$1,000,000

         
   

After one (1) year from the date this Agreement is first executed, the County may, at its sole discretion, require an increase in the amount of liability insurance to the level then customary in similar County agreements by giving sixty (60) days' notice to Contractor. If so requested for additional insurance by County, the parties will negotiate who will pay. County and its officers, agents, employees and servants shall be named as additional insured. Each insurance shall also contain a provision that the insurance afforded thereby to the County, its officers, agents, employees and servants shall be primary insurance to the full limits of liability of the policy, and that if the County or its officers and employees have other insurance against the loss covered by such a policy, such other insurance shall be excess insurance only.

     
   

In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, the County of San Mateo, at its option, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.

     

7.

Payment of Permits/Licenses. It shall be the Contractor's responsibility to obtain any license, permit or approval required from any agency for work/services to be performed at his/her own expense, prior to commencement of said work/services or forfeit any right to compensation under this Agreement.

   

8.

Non-discrimination.

   
 

a.

General. No person shall, on the grounds of race, color, creed, national origin, religious affiliation or non-affiliation, sex, sexual orientation, marital status, age (over forty), pregnancy, childbirth or related conditions, medical condition (including but not limited to AIDS, HIV positive diagnosis, or cancer), mental or physical disability, veteran's status, union membership, or political affiliation, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under this Agreement. Contractor shall ensure full compliance with federal, state and local laws, directives and executive orders regarding non-discrimination for all employees and subcontractors under this Agreement.

     
 

b.

Employment. Contractor shall ensure equal employment opportunity based on objective standards of recruitment, selection, promotion, classification, compensation, performance evaluations, and management relations, for all employees under this Agreement. Contractor's personnel policies shall be made available to County upon request.

     
 

c.

Violation. Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject Contractor to penalties, to be determined by the County Manager, including, but not limited to:

     
   

(1)

Termination of this Agreement;

       
   

(2)

Disqualification of Contractor from bidding on or being awarded a County contract for a period of up to three (3) years;

       
   

(3)

Liquidated damages of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) per violation;

       
   

(4)

Imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.

       
   

To effectuate the provisions of this paragraph, the County Manager shall have the authority to:

     
   

(1)

Examine Contractor's employment records with respect to compliance with this paragraph;

       
   

(2)

Set off all or any portion of the amount described in this paragraph against amounts due to Contractor under the Agreement or any other contract between Contractor and County.

       
   

Contractor shall report to the County Manager the filing by any person in any court of any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission or any other entity charged with the investigation of allegations within thirty (30) days of such filing, provided that within such thirty (30) days such entity has not notified Contractor that such charges are dismissed or otherwise unfounded. Such notification shall include the name of the complainant, a copy of such complaint, and a description of the circumstance. Contractor shall provide County with a copy of its response to the complaint when filed.

     

9.

Equal Benefits. With respect to the provision of employee benefits, Contractor shall comply with the County Ordinance which prohibits contractors from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.

   

10.

Accessibility of Services to Handicapped Persons. If the Contractor will be providing services directly to the public on behalf of San Mateo County, Contractor shall assure compliance with Section 504 of the Rehabilitation Act of 1973 by submitting a signed letter of assurance of compliance (Attachment I). Contractor shall be prepared to submit a self-evaluation and compliance plan to the County upon request within one (1) year of the execution of this Agreement.

   

11.

Work Products. Any system or documents developed, produced or provided under this contract are the sole property of the County. At the County's written request, Contractor shall provide any such system or document to County within thirty (30) calendar days unless directed otherwise by County. Upon termination of this Agreement, all finished or unfinished documents, data, studies, reports and materials prepared by Consultant under this Agreement shall become the property of the County and shall be promptly delivered to County within thirty (30) calendar days unless otherwise directed by County. Upon termination, Consultant may make and retain a copy of such materials subject to the confidentiality requirements below.

   

12.

Confidentiality. All data produced or compiled by Contractor shall be considered confidential unless it can be obtained as public record and shall not be shared with a third party without the prior written consent of County. All financial, statistical, personal, technical, and other data and information relating to the County's operations which are made available to the Contractor in order to carry out this Agreement shall be presumed to be confidential. Contractor shall protect said data and information from unauthorized use and disclosure by the observance of the same or more effective procedures as the County requires of its own personnel. The Contractor shall not, however, be required by this paragraph to keep confidential any data or information which is or becomes publicly available, is already rightfully in the Contractor's possession, is independently developed by the contract outside the scope of the Agreement or is rightfully obtained from third parties.

Consultant may not retain information contained in, or derived from, the confidential information and records provided by County after the conclusion, termination, or nonrenewal of this Agreement. Consultant shall purge and return to the County any confidential records, whether originals, copies, or electronic copies, provided by the County or otherwise obtained by the Contractor within thirty (30) calendar days of the conclusion, termination, or nonrenewal of the contract.

   

13.

Interpretation and Enforcement. Any notice, request, demand or other communication required or permitted hereunder shall be deemed to be properly given when deposited in the United States mail, postage prepaid, or when deposited with a public telegraph company for transmittal, charges prepaid, addressed:

   
 

a.

In the case of County, to:

     
   

Terry Burnes, Planning Administrator

   

San Mateo County

   

Environmental Services Agency

   

Planning and Building Division

   

455 County Center, 2nd Floor

   

Redwood City, CA 94063

     
   

Or to such person or address as County may, from time to time, furnish to Contractor.

     
 

b.

In the case of Contractor, to:

     
   

Paul Baginski

Regional Manager

1362 Ridder Park Drive

San Jose, CA 95131

     

14.

Termination of Agreement. The County may, at any time from the execution of the Agreement, terminate this Agreement, in whole or in part, for the convenience of the County, by giving written notice specifying the effective date and scope of such termination. Termination shall be effective on a date not less than thirty (30) days from notice. In the event of termination, all finished or unfinished documents, data, studies, maps, photographs, reports, and materials (hereafter referred to as materials) prepared by the Contractor under this Agreement shall become the property of the County and shall be promptly delivered to the County. In the event of termination, Contractor shall be paid for all work satisfactorily performed until termination, except where the County determines the quality or quantity of the work performed is unacceptable. Such payment shall be that portion of the full payment which is determined by comparing the work/services completed to the work/services required by the Agreement.

   

15.

Retention of Records. Contractor shall maintain all records related to this Agreement for no less than three (3) years after the County makes final payment or after termination of this contract and all other pending matters are closed. All records shall be subject to the examination and/or audit by agents of the County, the State of California and/or Federal grantor agencies.

   

16.

Merger Clause. This Agreement, including Exhibit "A " attached hereto and incorporated herein by reference, constitutes the sole agreement of the parties hereto and correctly states the rights, duties and obligations of each party as of the document's date. Any prior agreement, promises, negotiations or representations between the parties not expressly stated in this document are not binding. All subsequent modifications shall be in writing and signed by the County. In the event of a conflict between the terms, conditions or specifications set forth herein and those in the Exhibits attached hereto, the terms, conditions or specifications set forth herein shall prevail. This Agreement, or facsimile proposal of the Agreement, constitutes the entire Agreement between County and Contractor.

   

IN WITNESS WHEREOF, the parties hereto on the day and year first above written have executed this Agreement in two counterparts, each of which shall be deemed an original thereof.

 
 

COUNTY OF SAN MATEO

 

A political subdivision of the

 

State of California

   
   
   
   
 

BY

 
   

President, Board of Supervisors

   

ATTEST:

 
   
   
   
   

Clerk of the Board

 
   
   
   
   
   
 

CONTRACTOR

   

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1/17/03