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Attachment 1Page 1 of 8 Agreement for Services – Pacific Water Art July 1, 2018 -June 30, 2023 ATTACHMENT 1 Agreement for Services THIS AGREEMENT is dated for identification this 1 st of July 2018 and is made by and between TOWNAOFALOSAG TOS,AaACaliforniaAmunicipalAcorporation,A(“Town”)AandAPacificAWaterA rt,AInc.,A (“ServiceAProvider”),AwhoseAaddressAisA1244ABirchwoodADrive,ASunnyvale,AC A94089.AAThisA Agreement is made with reference t o the following facts. I. RECITALS 1.1 The Town desires to engage Service Provider to provide fountain maintenance and repair services. 1.2 The Service Provider represents and affirms that it is willing to perform the desired work pursuant t o this Agreement. 1.3 Service Provider warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement. Service Provider acknowledges Town has relied u pon these warranties to retain Service Provider. II. AGREEMENT 2.1 Scope of Services . Service Provider shall provide services as described in that certain Proposal sent to the Town on May 25 , 2018, which is hereby incorporated by reference and attached a s Exhibit A. 2.2 Term and Time of Performance . The effective date of this Agreement shall begin on July 1, 2018 and will continue through June 30, 2023 , subject to appropriation of funds, notwithstanding any other provision in this agreement. 2.3 Comp liance with Laws . The Service Provider shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Service Provider represents and warrants to Town that it has all licenses, permits, qualification s and approvals of whatsoever nature which are legally required for Service Provider to practice its profession. Service Provider shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Re sponsibility . Service Provider shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 2.5 Information/Report Handling . All documents furnished to Service Provider by the Town and all reports and supportive data prepared by the Service Provider under this Agreement are theATown’sApropertyAandAshallAbeAdeliveredAtoAtheATownAuponAtheAcompletionAofAservicesAorA at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Service Provider in connection with the performance of its services pursuant Page 2 of 8 Agreement for Services – Pacific Water Art July 1, 2018 -June 30, 2023 ATTACHMENT 1 to this Agreement are confidential until released by the Town to the public, and the Servi ce Provider shall not make any of these documents or information available to any individual or organization not employed by the Service Provider or the Town without the written consent of the Town before such release. The Town acknowledges that the repor ts to be prepared by the Service Provider pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Service Provider in connection with other projects shall be solely at Town's risk, unless Service Provider expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Service Provider which is and has been confirmed in writing by Service Provider to be a trade secret of Service Provider. 2.6 Compensation . • Compensation for routine maintenance and repairs services for the first year : o S hall not exceed $15,7 77. Payment shall be based upon Town approval of each task. • Compensation for unforeseen repairs to interactive fountain components: o Shall not exceed $25,625 annually . Payment shall be based upon Town approval of each task. • Compensation for routine maintenance and repairs services for years two through five : o S hall be adjusted upward annuall y for the remaining term of this Agreement by the change, if any, in the San Francisco – Oakland – San Jose Metropolitan Area Consumer Price Index for All Urban Consumers, all items (CPI). The adjustment shall be based upon the CPI published on December 3 1 of the preceding year. o If the CPI indicates a downward adjustment, compensation would remain at the base amoun t . 2.7 Failure to Perform . It is mutually agreed by SERVICE PROVIDER and TOWN that in the event that performance of the work by SERVICE PROVIDER under this Agreement is not completed as scheduled, TOWN will suffer damages and will incur other costs and expenses of a nature and amount which is difficult or impractical to determine. The Parties agree that by way of ascertaining and fixing t he amount of damages, costs and expenses, and not by way of penalty, SERVICE PROVIDER shall pay to TOWN the sum of one hundred dollars ($100.00) per location per scheduled service in liquidated damages for every missed service beyond three missed services in a month in addition to reducing the monthly payment by the cost of that service. In the event that the liquidated damages are not paid, SERVICE PROVIDER agrees that TOWN may deduct the amount of unpaid damages from any money due or that may become due to SERVICE PROVIDER under this Agreement. 2.8 Schedule . Service Provider shall provide a schedule to the Town prior to beginning work. The schedule shall identify dates of service for each location. Schedule changes shall be approved by the Town with 2 4 -hour notice. Each missed location shall be considered a failure to perform, unless the contractor provides advance notice of schedule change. Page 3 of 8 Agreement for Services – Pacific Water Art July 1, 2018 -June 30, 2023 ATTACHMENT 1 2.9 Billing . Billing shall be monthly by invoice within thirty (30) days of the rendering of the service an d shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95031 -065 5 2.10 Availability of Records . Service Provider shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Service Provider shall make these records available to authorized personnel of the Town at the Service Provider offices during business hours upon written request of the Town. 2.11 Assignability and Subcontracting . The services to be performed under this Agreement are unique and personal to the Service Provider. No po rtion of these services shall be assigned or subcontracted without the written consent of the Town. 2.12 Independent Service Provider . It is understood that the Service Provider, in the performance of the work and services agreed to be performed, shall a ct as and be an independent Service Provider and not an agent or employee of the Town. As an independent Service Provider he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written con sent, the Service Provider may perform some obligations under this Agreement by subcontracting but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Service Provider agrees to testify in any liti gation brought regarding the subject of the work to be performed under this Agreement. Service Provider shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of comp ensation, unless such litigation is brought by Service Provider or is based on allegations of Service Provider's negligent performance or wrongdoing. 2.13 Conflict of Interest . Service Provider understands that its professional responsibilities are sole ly to the Town. The Service Provider has and shall not obtain any holding or interest within the Town of Los Gatos. Service Provider has no business holdings or agreements with any individual member of the Staff or management of the Town or its represent atives nor shall it enter into any such holdings or agreements. In addition, Service Provider warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it s hall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Service Provider shall not knowingly and shall take Page 4 of 8 Agreement for Services – Pacific Water Art July 1, 2018 -June 30, 2023 ATTACHMENT 1 reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person Service Provider discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement Service Provider shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 2.14 Equal Employment Opportunity . Service Provider warrants that it is an equal oppo rtunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Service Provider nor its subService Providers do and neither shall discriminate against persons employed or seeking employment with them on the b asis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3.1 Minimum Scope of Insurance: i. Service Provider agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not le ss than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Service Provider agrees to have and maintain for the duration of the contract, an Automobile Liability insurance po licy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Service Provider shall provide to the Town all certificates of insurance, wi th original endorsements effecting coverage. Service Provider agrees that all certificates and endorsements are to be received and approved by the Town before work commences. General Liability: i. The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Service Provider; products and completed operations of Service Provider, premises ow ned or used by the Service Provider. Page 5 of 8 Agreement for Services – Pacific Water Art July 1, 2018 -June 30, 2023 ATTACHMENT 1 ii. The Service Provider's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self -insurances maintained by the Town, its officers , officials, employees or volunteers shall be excess of the Service Provider's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, o fficials, employees or volunteers. iv. The Service Provider's insurance shall apply separately to each insured against whom a claim is made, or suit is brought, except with respect to the limits of the insurer's liability. 3.2 All Coverages . Each insura nce policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 3.3 Workers’ACompensation . In addition to these policies, Service Provider shall have and maintain Worke rs' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Service Provider shall ensure that all subService Providers employed by Service Provider provide the required Workers' Compensation insurance for their respective employees. 3.4 Indemnification . The Service Provider shall save, keep, hold harmless and indemnify and defend the Town its officers, agent, employees and volunteers from all damag es, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or neg ligent act or omissions of the Service Provider, or any of the Service Provider's officers, employees, or agents or any subService Provider. IV. GENERAL TERMS 4.1 Waiver . No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. Page 6 of 8 Agreement for Services – Pacific Water Art July 1, 2018 -June 30, 2023 ATTACHMENT 1 4.2 Governing Law . This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 T ermination of Agreement . The Town and the Service Provider shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Service Provider s hall deliver to the Town all plans, files, documents, reports, performed to date by the Service Provider. In the event of such termination, Town shall pay Service Provider an amount that bears the same ratio to the maximum contract price as the work deliv ered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such terminati on. 4.4 Amendment . No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Service Provider. 4.5 Disputes . In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal. 4.6 Prevailing Wages . In accordance with the provisions of Sections 1770 et seq ., of the Labor Code, the Director of the Industrial Relations of the State of Cal ifornia has determined the general prevailing rate of wages applicable to the work to be done. Service Provider will be required to pay to all persons employed on the project by the Service Provider sums not less than the sums set forth in the documents e ntitledA“GeneralAPrevailingAWageADeterminationA made by the Director of Industrial Relations pursuant to California Labor Code, part 7, ChapterA1,A rticleA2,ASectionsA1770,A1773,A1773.1.”AATheseAdocumentsAmayAbeAobtainedAfromA the State of California. Purs uant to Labor Code section 1725.5, no Service Provider or subService Provider may be awarded a contract for public works on a public works project unless registered with the Department of Industrial Relations. This project is subject to compliance monito ring and enforcement by the Department of Industrial Relations and/or the Town of Los Gatos. The Service Provider is required to post notices on Public Works requirements. 4.7 Notices . Any notice required to be given shall be deemed to be duly and prop erly given if mailed postage prepaid, and addressed to: Page 7 of 8 Agreement for Services – Pacific Water Art July 1, 2018 -June 30, 2023 ATTACHMENT 1 Town of Los Gatos Attn: Town Clerk 110 E. Main Street Los Gatos, CA 95030 Pacific Water Art, Inc. 1244 Birchwood Drive Sunnyvale, CA 94089 or personally delivered to Service Provider to such address or such other address as Service Provider designates in writing to Town. 4.8 Order of Precedence . In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement i n respect of the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings. 4.9 Entire Agreement . This Agreement, including all Exhibits, constitutes th e complete and exclusive statement of the Agreement between the Town and Service Provider. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. Page 8 of 8 Agreement for Services – Pacific Water Art July 1, 2018 -June 30, 2023 ATTACHMENT 1 IN WITNESS WHEREOF, the Town and Service Provider have executed this Amendment. Town of Los Gatos : Pacific Water Art, Inc.: _______________________________ By: ____________________________ Laurel Prevetti, Town Manager Name Title Department Approval: _______________________________________ Matt Morley Director of Parks and Public Works Approved as to Form: At test: s Gatos, California ______________________________ ______________________________ Robert Schultz, Town Attorney Shelley Neis, CMC, Clerk Administrator