2009-080 - Authorizing The Town Manager/ Executive Director To Execute A Professional Services Agreement With Swinerton Management & Consulting Inc To Provide Construction Management Services For Ppw Job No. 09-06-- Los Gatos Library ProjectRESOLUTION 2009 -080
RESOLUTION OF THE TOWN COUNCIL /REDEVELOPMENT AGENCY
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER /EXECUTIVE DIRECTOR
TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH
SWINERTON MANAGEMENT & CONSULTING, INC.
TO PROVIDE CONSTRUCTION MANAGEMENT SERVICES FOR
PPW JOB NO. 09 -06 — LOS GATOS LIBRARY PROJECT
WHEREAS, the 2008 -09 Capital Improvement Program budget includes funding for the PPW
Job No.09 -06 Los Gatos Library Project; and
WHEREAS, proposals were sought in conformance with State and Town
Law for the Los Gatos Library Project; and
WHEREAS, it is necessary for the Town Council /Redevelopment Agency to secure professional
services to provide construction management services for the Los Gatos Library Project; and
WHEREAS, the Town Council /Redevelopment Agency has selected the firm of Swinerton
Management & Consulting Inc. to provide the necessary professional services for construction management for the
Los Gatos Library Project; and
NOW, THEREFORE, BE IT RESOLVED that the Town Council /Redevelopment Agency of
the Town of Los Gatos hereby approves the attached Agreement (Exhibit A) with Swinerton Management &
Consulting, Inc. to provide construction management in connection with the Los Gatos Project; at a cost not to
exceed $347,598.
BE IT FURTHER RESOLVED that the Town Manager /Executive Director is hereby authorized
and directed to execute said agreement on behalf of the Town Council /Redevelopment Agency.
PASSED AND ADOPTED at a regular meeting of the Town Council /Redevelopment Agency of
the Town of Los Gatos, California, held on the 15` day of June, 2009 by the following vote:
COUNCIL:
AYES: Diane McNutt, Joe Pirzynski, Steve Rice, Barbara Spector, and Mayor Mike Wasserman
NAYS:
ABSENT:
ABSTAIN:
TTEST:
CLER OF THE TOWN OF LOS GATOS
L GATOS, CALIFORNIA
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
EXHIBIT A
PROFESSIONAL SERVICES AGREEMENT
FOR CONSTRUCTION MANAGEMENT SERVICES
PPW JOB NO. 09 -06 — LOS GATOS LIBRARY PROJECT
THIS AGREEMENT is entered into this day of June, 2009, by and between the
Town of Los Gatos Redevelopment Agency, State of California, herein called the "Town ", and
Swinerton Management & Consulting, Inc., engaged in providing Construction Management
Services herein called the "Consultant ".
RECITALS
A. The Town is considering undertaking activities in connection with PPW Job No. 09 -06
Los Gatos Library Project.
B. The Town desires to engage a professional consultant to provide construction
management and inspection services in conjunction with the Los Gatos Library 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, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
i. Scope of Services The Consultant shall provide construction and inspection
services as outlined in the attached proposal (Exhibit B).
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 March 2012.
iii. CoMplianee 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 Linder this
Agreement,
V. Information/Report Handling All documents furnished to Consultant
by the Town and all reports and supportive data prepared by the
Consultant under this Agreement are the Town'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 docuirients or information available to any
individual or organization not employed by the Consultant or the
Town without the written consent of the Town before such release.
The Town acknowledges that the reports to be prepared by the
Consultant 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 Consultant in connection 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.
A. Compensation Compensation for Consultant's professional services
shall not exceed $347,598 and payment shall be. based upon Town
approval of monthly invoices by consultant.
Billing shall be accompanied by a detailed explanation of the work performed by
whom at what rate and on what (late. 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 reference the Town's purchase order
number and be addressed as follows:
Invoices:
Town of Los Gatos
Attn: Finance Department
P,O. Box 655
Los Gatos, CA 95031
Statements
Town of Los Gatos
Attu: Accounts Payable
Box 655
P.O. Los Gatos, CA 95031
vii. Availability of Records Consultant shall maintain the records
supporting this billing for not less than three years following
completion of the work under this Agreement, Consultant shall make
these records available to authorized personnel of the Town at the
Consultant's offices during business hours upon written request of the
Town,
viii Project Manager The Project Manager for the Consultant for the work
under this Agreement shall be Nimone Li- Hardisty,
ix. Assignability and Subcontracting The services to be performed tinder
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 Consultannt;
Todd Capurso John Baker, Project Executive
Director of Parks and Public Works Swuierton Management & Consulting Inc.
41 Miles Avenue 260 Townsend Street
Los Gatos, CA 95031 San Francisco, CA 94107 -1790
or personally delivered 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 workk 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 Town
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 be compensated for its costs
and expenses in preparing for, traveling to, and testifying in such matters at its then
current hourly rates of compensation, unless such litigation is brought by Consultant
or is based on allegations of Consultant's negligent performance or wrongdoing,
xii. Conflict of Interest Consultant understands that its professional
responsibilities is solely to the Town. The Consultant has and shall not
obtain any holding or interest within the Town of Los Gatos. Consultant
has no business holdings or agreements with any individual member of
the Staff or management of the Town or its representatives nor shall it
enter into any such holdings or agreements, In addition, Consultant
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 shall 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, Consultant shall not knowingly
and shall take 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, 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 Opp ortunity, Consultant warrants that it is an equal
opportunity employer and shall comply with applicable regulations
governing equal employment opportunity. Neither Consultant nor its
subcontractors do and neither sliall 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 :Cde occupational qualification pursuant to the
California Fair Employment & Dousing Act.
xiv. hrstuance
A. Minimum Scope of Insurance:
Consultant 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 less than: one million dollars ($1,000,000) combined
single limit per occurrence for bodily injury, personal injury and
property damage.
ii, Consultant agrees to have and maintain for the duration of the contract,
an Automobile Liability insurance policy 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. 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:
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 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 officers,
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 brought, 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 /Secretary of the Redevelopment Agency.
D. In addition to these policies, Consultant shall have and maintain Workers'
Compensation insurance as required by California law and shall provide evidence of
such policy to the Town before beginning services under this Agreement. Further,
Consultant shall ensure that all subcontractors employed by Consultant provide the
required Workers' Compensation insurance for their respective employees,
xv, Indemnification The Consultant shall save, keep and hold harmless
indemnify and defend the Town its officers, agent, employees and
volunteers from 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 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.
xviii. Termination of Agreement The Town and the Consultant shall have the
right to terminate this agreement with or without cause by giving not
less than 15 days written notice of termination. In the event of
termination, the Consultant shall deliver to the Town all plans, files,
documents and reports performed to date by the Consultant. hi 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 unless 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 •eez'€ anent This Agreement (Exhibit A), including (Exhibit B)
attached hereto, constitutes the complete and exclusive statement of
the Agreement between the Town and Consultant, No teams,
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:
Consultant, by:
Greg Larson, Town Manager /Executive Director
Recommended by:
Todd Capurso
Director of Parks and Public Works
Approved as to Form:
Orly P. Korb, Town Attorney /General Counsel
ATTEST:
Jackie Rose, Clerk Achninistrator /Secretary
of the Redevelopment Agency