Loading...
2005-105 - Authorizing The Town Manager To Enter Into An Agreement With Republic Electric To Provide Underground Utility Locating ServicesRESOLUTION 2005 -105 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO ENTER INTO AN AGREEMENT WITH REPUBLIC ELECTRIC TO PROVIDE UNDERGROUND UTILITY LOCATING SERVICES WHEREAS, it is in the best interest of the Town of Los Gatos to contract with Republic Electric for underground utility locating services; and WHEREAS, The Town is in need of underground utility locating services for locating street lights, traffic signals, and storm drain facilities; and NOW, THEREFORE, IT IS RESOLVED that the Town Council of the Town of Los Gatos hereby approves the attached Agreement attached as (Exhibit A) with Republic Electric to provide Underground Utility Locating Services; and BE IT FURTHER RESOLVED that the Town Council does hereby authorize the Town Manager to execute this agreement with Republic Electric providing Underground Locating Services. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 3rd day of October, 2005 by the following vote: COUNCIL MEMBERS: AYES: Steve Glickman, Diane McNutt, Joe Pirzynski, Barbara Spector, Mayor Mike Wasserman. NAYS: None ABSENT: None ABSTAIN: None . SIGNED: W M4 � MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: +CL.-ADM ISTR - OR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA AGREEMENT FOR UNDERGROUND FACILITY LOCATING AND MARKING SERVICES This agreement is made on , between Republic Electric, 371 Be[ Marin Keys Boulevard, Suite 200, Novato, CA 94949 -5699 ( "Contractor "), and The Town of Los Gatos, P. O. Box 949, Los Gatos, CA 95031 ( "Customer "). ARTICLE 1: Locating and Marking Services Section 1.1 — Retention of Contractor Customer retains Contractor to perform, and Contractor agrees to perform, underground facility locating and marking services (Services) for Customer underground facilities in the service territory identified in Exhibit - A and made a part of this Agreement, and any other territories that the parties may agree to in writing. Section 1.2 — Scope of Services 1. Contractor agrees to receive all excavation notices, (Requests), directed to Customer from any source, including requests generated through the One -Call Center. 2. Customer agrees to instruct the One -Call Center to transmit Requests involving Customer's underground facilities directly to Contractor. 3. Contractor shall respond to and complete all locate requests in accordance with State laws. Contractor shall, for each locate request, review the Customer's underground facility maps, determine any conflict between the proposed excavation and Customer's facilities, and where conflict exists locate and mark such facilities. 4. Contractor shall use paint, flags, or stakes as necessary to identify the location of Customer's facilities. Such markings shall be placed at reasonable distances and shall be in accordance with the APWA uniform color code guidelines. 5. Contractor agrees to perform the Services as promptly as possible, and to electronically close out all locate requests. 6. Contractor shall maintain records of all requests for a period of Three (3) years, from the date of receipt. 7. All Services shall be performed in a good and workman -like manner and in accordance with all applicable laws, regulations and ordinances, and shall comply with the locating procedures as from time to time adopted and approved by the National Utility Locating Contractor's Association (NULCA). 8. Contractor shall designate a single point of contact between Contractor and Customer to serve as liaison for receipt and distribution of Customer's underground facility maps, and other administrative issues. 9. In the event Contractor encounters any Customer underground facilities that are "Identifiable, but Unlocateable ", Contractor shall notify Customer after having exhausted reasonable efforts to locate such facility. Customer will either assist Contractor or complete said locates at no cost to Contractor. 10. An "Identifiable, but Un- locatable" facility is defined as a facility whose presence is known but which can not be located with "Reasonable Accuracy" using electronic devices designed to respond to the presence of such underground facilities. Section 1.3 — Materials Provided by Customer During the term of this Agreement, Customer agrees to furnish Contractor with adequate copies of Customer's underground facility maps and records. This shall include all available maps, measurements, charts, technical information and updates, which are necessary to locate Customer's underground facilities. Page 1 Exhibit A All such materials furnished or disclosed to Contractor by Customer in the performance of this Agreement shall remain the property of Customer. All copies of such information shall be returned to Customer upon the termination of this Agreement. Unless such materials were previously known to Contractor free of any obligation to keep them confidential, or subsequently made public by Customer, such materials shall be kept confidential by Contractor, shall be used only in the performance of Services under this Agreement and may not be used for any other purpose except as may be agreed upon in writing by Customer. This obligation of confidentiality shall survive the termination of this Agreement. Section 1.4 — Materials Provided by Contractor; Independent Contractor During the term of this Agreement, Contractor agrees to provide sufficient qualified staff and personnel, office and field equipment, transportation and supplies as are necessary to fulfill its obligations under this Agreement, and shall furnish and maintain any and all state, county and municipal licenses or permits which apply to the Services to be performed by Contractor. Contractor hereby represents and agrees that it is engaged in an independent business; that it will perform Services under this Agreement as an independent contractor and none of its workers, agents or employees shall under any circumstance be construed as an employee of Customer; that it has and hereby retains the right and responsibility to exercise control and supervision of the Services and full control over the employment, direction, compensation and discharge of all persons assisting it in performing the Services; that it will be solely responsible for the payment of its employees and for the payment of all federal, state, county and municipal taxes and contributions pertaining thereto; and that it will be responsible for its own acts and for the acts of its employees, agents, and subcontractors while performing Services under this Agreement. Nothing contained in this Agreement shall create or be construed as creating the relationship of employer and employee, or partnership or joint venture, between Customer and Contractor, or between Customer and any person or persons employed or engaged by Contractor. ARTICLE 11: Compensation for Services Section 2.1 — Compensation for Services In full and complete payment for the performance of Services under this Agreement, Customer shall pay to Contractor the amounts set forth on (Exhibit -B Price Schedule) attached to this Agreement. Customer shall compensate any service performed by Contractor at the request of Customer, which is not provided on the Exhibit - B Schedule, at the rates determined from time to time between the parties. Contractor shall invoice Customer each week for the work performed the prior week. All invoices shall be due and payable, and Customer shall pay the Compensation due, within thirty (30) days of the date of the invoice. ARTICLE 111: Term and Termination Section 3.1 — Term of the Contract The term of this Agreement shall be for one (1) year and begin on October 1, 2005 and shall expire on September 30, 2006. The parties acknowledge that Contractor needs a start -up period to inspect the materials received from Customer and to prepare to provide the Services, and Customer shall provide all relevant materials to Contractor as soon as practical after the execution of this Agreement. Contractor shall perform work at the prices outlined in attached Exhibit B - Schedule of Pricing. Adjustments to said Schedule shall be made once per year on the anniversary date of this agreement if needed. Such adjustments shall be equal to any increase in the National Consumer Price Index (CPI) for the twelve- month period ending two months prior to the anniversary of this contract. Page 2 Section 3.2 — Termination This Agreement, and the obligations of the parties, maybe terminated prior to the end of the term only under the following circumstances and only in accordance with the following procedures: 1. By either party after ten (10) days prior written notice in the event of the bankruptcy or insolvency of a party, or in the event of the appointment of a receiver for the assets of a party; or 2. By the non - breaching party after thirty (30) days prior written notice to the breaching party, and after compliance with the procedures set forth in Section 3.3 of this Agreement, in the event of a material breach by a party of its obligations under this Agreement; or 3. By either party, for any reason with thirty (30) days prior written notice to other party. Section 3.3 — Procedures for Termination for Breach In the event a party in good faith believes that the other party has breached its obligations under this Agreement, the non - breaching party shall provide a written notice to the breaching party specifying in reasonable detail the breach, which is alleged to have occurred. If the party receiving the notice agrees that the breach has occurred, it shall be given ten (10) days after the receipt of the notice to cure such breach or, in the event such a breach can not be cured, to develop and submit to the other party policies or procedures, or to take other action, to ensure that such a breach will not occur in the future. In the event the party receiving the notice does not agree that the breach has occurred, such party shall request in writing a meeting of their respective general managers to discuss the facts and circumstances alleged to have resulted in the breach and to determine whether such a breach has occurred. Such a meeting shall occur within five (5) days of the receipt of such a request. At the meeting, the parties shall cooperate with each other and act in good faith to resolve the dispute and their differences. In the event the meeting of the general managers does not resolve the dispute as to whether a breach has occurred, a second meeting shall be held between the parties and shall be attended by the general managers and the next highest position within the applicable party with authority over the subject matter of this Agreement. At the second meeting, the parties shall again cooperate with each other and act in good faith to resolve the dispute and their differences. In the event the second meeting of the parties does not resolve the dispute, the question of whether a breach has occurred under this Agreement shall be submitted to binding mediation. A single mediator, selected by the parties, shall conduct the mediation. If the parties cannot agree on the mediator, each party shall submit three (3) selections for mediators, and the mediator shall be selected by lot from the six (6) names submitted. The decision of the mediator shall be rendered within ten (10) days of the mediation session, and shall be conclusive as to the question of whether a breach 'has occurred under this Agreement. The costs and expenses of the mediation shall be shared equally between the parties; provided, however, that each party shall pay their own fees and expenses of their respective counsel, witnesses and experts, if applicable. If the mediator determines that a breach has occurred, the breaching party shall be entitled to cure the breach, or to establish procedures to ensure that another similar breach will not occur, consistent with the first paragraph of this Section. The parties acknowledge and agree that the foregoing provisions are intended to provide a process of resolving disputes between them without the necessity of terminating this Agreement. The parties hereby confirm their agreement to make diligent and good faith attempts to cooperate with each other throughout the term of this Agreement, and to resolve all differences in a fair and equitable manner. Page 3 Section 3.4 —Transition of Contractors Upon the termination of this Agreement, the parties agree to reasonably cooperate with each other as is necessary to effect an orderly transition of the business contemplated in this Agreement. In furtherance of this provision: 1. Contractor agrees to deliver to the Customer at or prior to the date of such termination the materials supplied to Contractor pursuant to Section 1.3 of this Agreement, and to provide Customer with all Requests received for which Services have not been performed as of the date of termination; and 2. Customer agrees not to solicit or offer employment to the employees or agents of Contractor for a period of 12 months following the termination of this agreement; and 3. The parties mutually agree to meet, prior to the proposed date of termination, to coordinate between them the transition of unperformed Requests and ongoing major projects for which Contractor has been providing Services. Contractor shall be entitled to, and Customer shall pay, continued Compensation, pursuant to this Agreement, for any Services performed after the termination, but at the request of Customer and in connection with the transition of the business contemplated to another contractor. In the event Customer does not request any additional Services in connection with such transition, the termination of this Agreement shall relieve Contractor from all obligations to provide Services. Termination of this Agreement shall not, however, relieve either party of any obligation to the other which arose prior to the date of such termination. ARTICLE IV: Insurance Section 4.1 — Contractor's Insurance Contractor shall maintain throughout the term of this Agreement the following insurance coverage, and upon request shall provide to Customer certificates or policies evidencing the following coverage: 1. Workers' compensation coverage in accordance with the laws of the State of Service 2. Commercial general liability insurance with the following minimum limits of liability: • $1,000,000 Each occurrence • $2,000,000 General aggregate • $2,000,000 Products aggregate • $1,000,000 Personal & advertising injury 3. Contractual liability insurance with minimum limits of $1,000,000. 4. Comprehensive automobile liability insurance with the minimum limits of liability at $1,000,000 Combined single limit. All insurance policies shall be written by reputable companies, authorized to issue insurance in the State where work is performed., and shall name Customer as an additional insured party by primary insured endorsement to such policies. Each policy shall provide that it will not be canceled or amended except after thirty (30) days advance written notice to Customer, mailed to the address indicated in this Agreement. Page 4 ARTICLE V: Indemnification and Liabili Section 5.1 — Indemnification by Contractor Not withstanding the provisions of Section 5.4 herein, Contractor shall be liable for any claim, lawsuit or damage to the property or facilities of Customer that results from an error or omission by Contractor in locating and marking Customer's underground facilities. The Contractor shall indemnify, defend and hold harmless the Customer and its officers, directors, affiliates, agents, and employees from and against all claims, actions, damages, losses, and expenses, including reasonable attorneys' fees and disbursements, arising out of or resulting from a breach of this Agreement or the performance of the Services performed under this Agreement, provided that such claim, action, damage, loss or expense is caused in whole or in part by any act or omission of the Contractor, or any subcontractor of the Contractor, or anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. Section 5.2 — Third Party Claims Promptly after the receipt by a party to this Agreement of notice of any claim, action, suit or proceeding by any person who is not a party to this Agreement (collectively, an "Action ")' which is subject to indemnification, such party (the "Indemnified Party ") shall give reasonable written notice to the party from whom indemnification is claimed (the "Indemnifying Party "). The Indemnified Party's failure to so notify the Indemnifying Party of any such matter shall not release the Indemnifying Party, in whole or in part, from its obligations to indemnify under this Agreement, except to the extent the Indemnified Party's failure to so notify actually prejudices the Indemnifying Party's ability to defend against such Action. The Indemnified Party shall be entitled, at the sole expense and liability of the Indemnifying Party, to exercise full control of the defense, compromise or settlement of any such Action unless the Indemnifying Party, within a reasonable time after the giving of such notice by the Indemnified Party, shall: 1. Admit in writing to the Indemnified Party, the Indemnifying Party's liability to the Indemnified Party for such Action under the terms of this Agreement; 2. Notify the Indemnified Party in writing of the Indemnifying Party's intention to assume the defense, and; Retain legal counsel reasonably satisfactory to the Indemnified Party to conduct the defense of such Action. The Indemnified Party and the Indemnifying Party shall cooperate with the party assuming the defense, compromise or settlement of any such Action in any manner that such party reasonably may request. If the Indemnifying Party so assumes the defense of any such Action, the Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement, but the fees and expenses of such counsel shall be the expense of the Indemnified Party unless: a. The Indemnifying Party has agreed to pay such fees and expenses, b. Any relief other than the payment of money damages is sought against the Indemnified parry or c. The Indemnified Party shall have been advised by its counsel that there may be one or more legal defenses available to it, which are different from or additional to those available to the Indemnifying Party, and in any such case the fees and expenses of such separate counsel shall be borne by the Indemnifying Party. Page 5 No Indemnified Party shall settle or compromise or consent to entry of any judgment with respect to any such Action for which it is entitled to indemnification hereunder without the prior written consent of the Indemnifying Party, unless the Indemnifying Party shall have failed, after reasonable notice, to undertake control of such Action in the manner provided above in this Section. No Indemnifying Party shall, without the written consent of the Indemnified Party, settle or compromise or consent to entry of any judgment with respect to and such Action in which any relief other than the payment of money damages is sought against any Indemnified Party unless such settlement, compromise or consent includes as an unconditional term thereof the giving by the claimant, petitioner or plaintiff, as applicable, to such Indemnified Party of a release from all liability with respect to such Action. Section 5.3 — Liability for Damaged Facility In the event of any damage to Customer's underground facility, which in the opinion of Customer may be related to the Services performed hereunder, Customer shall immediately (after making the site safe) but no later than 12 hours notify Contractor to investigate such damage, and Contractor shall submit a written investigation report to Customer within 10 business days. If Contractor is notified of damage later than 12 hours, Contractor will still investigate but will not be held liable to Customer's underground facility. Should the investigation reveal that the damage resulted directly from an error or omission of Contractor, or because Contractor failed to properly mark the location of such facility within reasonable accuracy as defined herein, Contractor shall reimburse Customer for repair and restoration costs of said facility not to exceed $1,000 per incident. Contractor shall not be responsible for down time/ delays due to any facility damages. ARTICLE VI: Miscellaneous Provisions Section 6.1 — Amendments Any amendments, modifications and supplements to this Agreement must be in writing and signed by an authorized representative of both parties. The term "this Agreement" shall be deemed to include any future amendments, modifications and supplements. All such amendments, modifications and supplements shall not, unless specifically referred to, be construed to adversely affect vested rights or causes of action, which have accrued prior to the effective date of such amendment, modification or supplement. Section 6.2 — Entire Agreement This Agreement and any and all amendments, modifications or supplements hereto, shall constitute the entire agreement between the parties with respect to the subject matter of this Agreement and shall supersede any and all agreements, bids, or other understandings between the parties concerning such subject matter. Section 6.3 — Severability In the event that one or more clauses, covenants, or provisions contained in this Agreement are found by a court of competent jurisdiction to be invalid and unenforceable, such finding shall not affect the validity or enforceability of the remainder of this Agreement, which shall remain in full force and effect, in accordance with its terms, and such invalid or unenforceable provision shall be deemed limited or modified as necessary to make the same valid or enforceable so as to give effect to the intent of the parties as expressed herein to the maximum extent possible. Section 6.4 — Waiver The waiver by either party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach hereof. The waiver of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement. Page 6 Any waiver of a provision of this Agreement or a breach hereof shall not be effective unless the waiver is in writing and is signed by an authorized representative of the waiving party, and the waiver shall be effective only for the specific purpose for which it was given. Section 6.5 — Notices All notices and other communications to be given in accordance with this Agreement shall be deemed to have been duly given. On the day of delivery if personally delivered to the person being served or to an appropriate officer of any corporate party being served, or if sent by facsimile or e -mail with confirmation of receipt, or 2. On the day of signature or refusal of the receipt if mailed by United States certified mail, return receipt requested, postage prepaid, to the parties at the following addresses: To Customer: Town of Los Gatos P.O. Box 949 Los Gatos, CA 95031 Phone: 408.399.5770 Fax: 408.354.8529 To Contractor: Republic Electric 371 Bel Marin Keys Blvd. Suite 200 Novato, CA 94949 -5699 Phone: 415.884.3000 Fax: 415.884.4800 Section 6.6 — Assignment Neither this Agreement, nor the rights and obligations hereunder, may be assigned by the parties hereto without the prior written consent of the other party. In the event of a permitted assignment hereunder, the rights and obligations of this Agreement shall inure to the benefit of, and be binding upon, the party's successors and assigns. Section 6.7 — Counterparts This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. Section 6.8 — Governing Law This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Venue for any action concerning this Agreement shall be in Superior Court of Santa Clara County, California. Section 6.9 — Additional Terms The additional terms if any, included on Schedule 6.9 hereto, if any, are hereby incorporated into this Agreement and shall be deemed to be a part hereof. Section 6.10 — Headings The Article and Section headings used in this Agreement are inserted for convenience of reference only, and shall not be construed as confining or limiting in any way the scope or intent of the provisions of this Agreement. Page 7 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives effective as of the date and year first written above. TOWN OF LOS GATOS Debra J. Figone, Town Manager REPUBLIC ELECTRIC James A. Wagner, P.E., Vice President, Engineering RECOMMENDED BY: John E. Curtis Director of Parks and Public Works APPROVED AS TO FORM: Orry Korb, Town Attorney ATTEST: Marlyn Rasmussen Clerk Administrator Page 8 Republic Electric CA Lic: 647754 September 12, 2005 Kevin Rohani Town of Los Gatos 41 Miles Ave. Los Gatos, CA 95031 Job Name: Underground Mark and Locate Services Job Location: Citywide Dear Mr. Rohani: We offer to perform the following work, on the terms and conditions stated below and on the reverse side hereof, and at the prices shown, as follows: Perform underground mark and locate services for traffic signal and streetlight facilities on an as needed basis. Our response to the each request will be within 48 hours. Republic Electric's responsibility will be to respond with a qualified electrician and the proper equipment, and our liability for damage to underground facilities due to inaccurate markings will be limited to $1,000.00 per occurrence. This price assumes that each call will be for a maximum of 30OFT along a roadway. Labor, Materials and Equipment ....... $50.00 REPUBLIC ELECTRIC J es A. Wagner, P.E. VP Engineering Exhibit B (415) 884 -3000 Fax (415) 884 -4800 • 371 Bel Marin Keys Blvd., Suite 200 • Novato, CA 94949 -5699 BOSTON • DALLAS • LOS ANGELES • SACRAMENTO • SAN DIEGO • SAN FRANCISCO