2009-131-Authorizing The Town Manager To Execute A Professional Services Agreement With Ghirardelli Associates Inc. To Provide Construction Management And Inspection Services For Ppw Job No.04-68-RobRESOLUTION 2009-131
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER
TO EXECUTE. A PROFESSIONAL SERVICES AGREEMENT WITH
GHIRARDELLI ASSOCIATES INC.
TO PROVIDE CONSTRUCTION MANAGEMENT
AND INSPECTION SERVICES FOR
PPW JOB NO. 04-68 - ROBERTS ROAD BRH)GE RECONSTRUCTION PROJECT
WHEREAS, the 2009/10 Capital Improvement Program budget includes funding for the
for PPW Job No.04-68 Roberts Road Bridge Reconstruction Project -Construction Management
Services; and
WHEREAS, proposals were sought in conformance with State and Town
Law for the Roberts Road Bridge Reconstruction project construction management services; and
WHEREAS, it is necessary for the Town Council to secure professional services to
provide engineering construction management and inspection services for the Roberts Road Bridge
Reconstruction project; and
WHEREAS, the Town Council has selected the firm of Ghirardelli Associates Inc. to
provide the necessary professional services for construction management and inspection services for the
Roberts Road Bridge Reconstruction project.
NOW, THEREFORE, IT IS RESOLVED that the Town Council of the Town of Los
Gatos hereby approves the attached Agreement (Exhibit A) with Ghirardelli Associates Inc. to provide
construction management and inspection services in connection with the Roberts Road Bridge
Reconstruction project at a cost not to exceed $270,.888.
BE IT FURTHER RESOLVED that the Town Manager is hereby authorized and
directed to execute said agreement on behalf of the Council.
PASSED AND .ADOPTED at a regular meeting of the Town Council of the Towri of
Los Gatos, California, held on the 21St day of December, 2009 by the following vote:
AYES: Joe Pirzynski, Steve Rice, Barbara Spector, Mike Wasserman and Mayor Diane McNutt
NAYS:
ABSENT:
ABSTAIN:
ATT
CLE OFT TOWN OF LOS GATOS
LOS G ,CALIFORNIA
.SIGNED:
~ ia~~ M ~ru~'
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Exhibit A
PROFESSIONAL SERVICES AGREEMENT FOR
CONSTRi7CTION MANAGEMENT AND INSPECTION SERVICES
T1=IIS AGREEMENT is entered into this day of , 2009, by and
between the Town of Los Gatos, State of California, herein called the "Town", and Ghirardelli
Associates Inc., engaged in providing Construction Management and hispection Services herein
called the "Consultant".
RECITALS
A. The Town is considering ruidertalcing activities in connection with PPVV Job No. 04-68
Roberts Road Bridge Reconstruction Project.
B. The Town desires to engage a professional consultant to provide constr~.tction
management and inspection services in conjunction with the Roberts Road Bridge
.Reconstruction project, because of Consultant's experience and qualifications to perform
the desired work.
C. The Consultant represents and affirms that it is qualified and willing to perform the
desired work pursuant to this Agreement.
AGREEMENTS
NOW, TI-IEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS;
Scope of Services. The Consultant shall provide construction and .inspection
services as outlined in the attached proposal.
ii. Time of Performance. The .services of the Consultant are to commence
upon the execution of this Agreement and issuance of a Town purchase
order, with completion of the project by December, 2010.
iii. Compliance with Laws. The Consultant shall comply with all applicable
laws, codes, ordinances, and regulations of governing federal, state and local
laws. Consultant represents and warrants to Town that it has all licenses,
permits, qualifications and approvals of whatsoever nature which are legally
required for Consultant to practice its profession. Consultant represents and
warrants to Town that Consultant shall, at its sole cost and expense, keep in
effect or obtain at all times during the term. of this Agreement any licenses,
permits, and approvals which are legally required for Consultant to practice
its profession. Consultant shall maintain a Town of Los Gatos business
license pursuant to Chapter 14 of the Code of the Town of Los Gatos.
iv. Sole Responsibility. Consultant shall be responsible for employing or
engaging all persons necessary to perform the services under this
Agreement.
v. Information/Report Handling. All docuza~ents furnished to Consultant
by the Town .and all reports and supportive data prepared by the
Consultant under this Agreement are the Tow.n's property and shall be
delivered to the Town upon the completion of Consultant's services or
at the Town's written request. All reports, information, data, and
exhibits prepared or assembled by Consultant in comlection with the
performance of its services pursuant to this Agreement are confidential
until released by the Town to the public, and the Consultant shall not
make any of the these documents or information available to any
individual or of:ganization not employed by the Consultant or the
Town without the written consent of the Town before such release,
The Town aclulowledges that the reports to be prepared by the
Consultant pursuant to this Agreement are for the purpose of
evaluating a defined project, gild Town's use of the information
contained in the reports prepared by the Consultant in coiulection with
other projects shall be solely at Town's risk, unless Consultant
expressly consents to such use in writing. Town further agrees that it
will not appropriate any methodology or technique of Consultant
which is and has been confirmed in writing by Consultant to be a trade
secret of Consultant.
vi. Compensation. Compensation for Consultant's professional services
shall not exceed (two-hundred-seventy thousand eight-hundred eighty-
eight dollars) $270,888, and payment shall be based upon Town
approval of each monthly invoice and progression of the work.
Billing shall be accompanied by a detailed explanation of the work performed by
wlaoln at what rate and on what date. Also, plans, specifications, documents or othea•
pertinent materials shall be submitted for Town review, even if oiily in partial or
draft form. .
Payment shall be net thirty (30) days.
All invoices and statements to the Town shall reference the Town's purchase order
number and be addressed as follows:
Invoices: Statements;
Town of Los Gatos Town of Los Gatos
Attn: Accounts Payable Attn: Finance Department
P.O. Box GSS P.O. Box 6SS
Los Gatos, CA 95031 Los Gatos, CA 95031
vii. Availability of Records. Consultant shall maintain the records
supporting this billing for not less than tluee years following
completion of the work under this Agreement. Consultant shall make
these records available to authorized persotulel of the Town at the
Consultant's offices during business hotus upon written request of the
Town.
viii Project Manager. The Project Manager for tl~e Consultant for the work
under this Agreement shall be Randall Brutzer,
ix. Assi ng ability and Subcontracting. Tlie services to be performed under
this Agreement are unique and personal to the Consultant, No portion
of these services shall be assigned or subcontracted without the written
consent of the Town.
x. Notices. Any notice required to be given shall be deemed to be duly
and properly given if mailed postage prepaid, and addressed to;
To Town: To Consultant:
Todd Capurso, Director Randall Bruner, VP
Town of Los Gatos Parks & >?ublie Works Ghirardelli Associates Inc.
41 Miles Avenue 2375 Zat~lcer Road, Suite 235
Los Gatos, CA 95031 San Jose, CA 95131
or personally elelivered to Consultant to such address or such other address as
Consultant designates in writing to Town.
xi. Independent Contractor. It is understood that the Consultant, in the
performance of the work and services agreed to be performed, shall act
as and be an independent contractor and not an agent or employee of
the Town. As an independent contractor he/she shall not obtain any
rights to retirement benefits or other benefits which accrue to Towrt
employee(s). With prior written consent, the Consultant 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,
Consultant agrees to testify in any litigation brought regarding the subject of the
work to be performed under this Agreement. Consultant shall Ue compensated for its
costs and expenses in preparing for, traveling to, and testifying itl such matters at its
then current hourly rates of compensation, unless such litigation is brought by
COllsllltatlt or is based on allegations of Consultant's negligent performance or
wrongdoing.
xii, .Conflict of Interest, Consultant understands that its professional
responsibilities are solely to the Town. The Consultant has and shall
not obtain any holding or interest within the Town of Los Gatos.
Consultant leas no business holdings or agreements with airy individual
member of the Staff or management of the Town or its representatives
nor s17a11 it enter into any such holdings or agreements. In addition,
Consultant warrants that it does not presently aild shall not acquire any
direct or indirect interest adverse to those of the Town h1 the subject of
this Agreement, and it shall inunediately disassociate itself from such
an interest should it discover it has done so and s11a11, at the Town's
sole discretion, divest itself of SUCIl interest, Consultant shall not
lalowingly and shall take reasonable steps to ensure that it does not
employ a person having such an interest in this performance of tl~is
Agreement. If after employment of a person, Consultant discovers it
has employed a person with a direct or indirect interest that would
conflict with its performance of this Agreement, Consultant shall
promptly notify Town of this employment relationship, .and shall, at
the Town's sole discretion, sever any such employment relationship.
xiii, Equal Employment Opportunity. Consultant warrants that it is an
equal oppoifiinity employer and shall comply wifih applicable
regulations governing equal employment opportunity, Neither
Consultant nor its subcoritractors do and neither shall discriminate
against persons employed or seeking employment with them on the
basis 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.
xiv. Insurance,
A, Minimmn Scope of Insura~ace;
i. Consultant agrees to have and maintain, for the dtuation of the
contract, General Liability insurance policies insuring him/her and
his/her firm to an amount not less than; one million dollars
($1,000,000) combined single limit per occurrence for bodily injury,
personal injury and prope~~ty damage,
ii. Consultant agrees to have and maintain for t11e duration of the contract,
an Automobile Liability insurance policy ensuring him/her and his/her
staff to an amount not less than ane million dollars ($1,000,000)
combined single limit per accident for bodily injury and property
damage.
iii. Consultant shall provide to the Town all certificates of insurance, with
original endorsements effecting coverage. Consultant agrees that all
certificates and endorsements are to be received and approved by the
Town before work commences.
iv. Consultant agrees to have and maintain, for the duration of the
contract, professional liability insurance in amounts not less than
$1,000,000 which is sufficient to insure Consultant for professional
errors or omissions in the performance of the particular scope of work
under this agreement.
B. General Liability;
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 Consultant; products and completed
operations of Consultant, premises owned or used by the Consultant.
This requirement does not apply to the professional liability insurance
required for professional errors and omissions.
ii. The Consultant'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 o#iicers,
officials, employees or volunteers shall be excess of the Consultant'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, officials,
employees or volunteers.
iv. The Consultant's insurance shall apply separately to each insured
against whom a claim is made or suit is Drought, except with respect to
the limits of the insurer's liability.
C. All Coverages: Each insurance 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
Clerk Administrator.
D. In addition to these policies, Consultant shall have and maintain Workers'
Compensation insurance as required by California law and shall provide evidence of
sucl~ policy to the Town before bcgiiming services Colder this Agreement. purtller,
Consultant shall ensure that all subcontractors employed by Consultant provide the
required Workers' Compensation insurance for their respective employees.
xv. Indeimnification. The Consultant shall save, keep and hold harmless
indemnify and defend the Town its officers, agent, employees and
volunteers fiom all damages, 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
negligent act or omissions of the Consultant, or any of the Consultant's
officers, employees, or agents or any subconsultant.
xvi. 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.
xvii. Governing Law. Tlnis 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.
xviii. Termination of Agreement. The Town and the Consultant shall 17ave
the right to terminate this agreement with or without cause by giving
not loss than 15 days written notice of terznilation. In the event of
termination, the Consultant shall deliver to the Town all plans, files,
documents and reports performed to date by the Consultant. In the
event of such termination, Town shall pay Consultant an amount that
bears the same ratio to the maximum contract price as the work
delivered to the Town bears to completed services contemplated under
this Agreement pursuant to (Exhibit A) hereto, 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 termination.
xvx. Amendment. No modification, waiver, mutual termination, or
amendment of this Agreement is effective runless made in writing and
signed by the Town and the Consultant.
xx. 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.
xxi. Entire A~reeinent. Tlus Agreement (Exhibit A), including (Exhibit B)
attached hereto, constitutes the complete and exclusive statement of
.the Agreement between the Town and Consultant. 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.
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as
of the date indicated on page one (1).
Town of Los Gatos, by:
Greg Larson, Town Manager
GhiY•R~•delli Associates Inc., by:
(Signature)
Recommended by:
Todd Capurso
Director of Parlcs and Public Worlcs
Approved as to corm:
Orry P. Korb, Town Attorney
ATTEST:
(Print Name)
(Address)
Jackie Rose, Clerlc Adinitiistrator