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1997-031-Execute And Agreement With Kutzman & Associates, Inc. For On Demand Plan Check ServicesRESOLUTION 1997 - 31 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT WITH KUTZMANN & ASSOCIATES, INC. FOR ON DEMAND PLAN CHECK SERVICES RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara, State of California, that the Town of Los Gatos enter into an agreement with Kutzmann & Associates, Inc. for as needed plan check services, and that the Town Manager is authorized, and is hereby directed, to execute said contract/agreement attached hereto and incorporated by reference as Exhibit "A" in the name and on behalf of the Town of Los Gatos. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 7th day of April, 1997 by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Steven Blanton, Jan Hutchins, Vice Mayor Linda Lubeck NAYS: None ABSENT: Joanne Benjamin ABSTAIN: None J1 �. SIGNED: VICE MAYOR OF THE TOWN OF LOS GATOS ATTEST: ? CLERK OF THE TOWN OF LOS G, LOS GATOS, CALIFORNIA LOS GATOS, CALIFORNIA OS i �r .V :Y CLc F2K AGREEMENT FOR PLAN CHECK CONSULTANT SERVICESnio: THIS AGREEMENT is entered into this day of , 19_, by and between the Town of Los Gatos, State of California, herein called the 'Town ", and KUTZMANN & ASSOCIATES, INC., engaged in providing PLAN CHECK consulting services herein called the "Consultant ". RECITALS A. The Town desires to engage a PLAN CHECK Consultant to ASSIST DURING TIMES OF EXCESSIVE WORK LOAD. B. 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: 1. Scope of Services. The Consultant shall provide the following services listed in Attachment 1, which is attached hereto and incorporated by reference. 2. Time of Performance. The services of the Consultant are to commence upon the execution of this Agreement. The agreement will be reviewed in three years of the date of this agreement. 3. 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. 4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement, not including any and all agents, employees, representatives of Town necessary to advise Consultant on answers to information necessary to perform fully any tasks undertaken under Town's contract or to facilitate Consultant's full performance herein. 5. Information Handling. All documents furnished to Consultant by the Town and all supportive data prepared by the Consultant under this Agreement are the Town's Rcvis d April 24, 1996 Page 1 of 7 MOMEOCNCUPTSOPIANCKAGR property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All information and data prepared or assembled by Consultant in connection 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 organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the documents 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 documents 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. 6. Compensation. Compensation for Consultant's professional services shall be as follows: A Standard fee for a full plan check (including structural and non - structural, disabled access, energy conservation, mechanical, electrical and plumbing) is 75% of the plan check fee as charged by the Town of Los Gatos. This fee includes the initial review and the first recheck. Additional rechecks are billed on a Time & Materials basis. B. Structural only plan check fee is 37.5% of the plan check fee as charged by the Town of Los Gatos. C. Non - standard plan checks (such as for revisions to existing permits) as well as consultation services, are billed on a Time & Materials basis. D. At the time of this agreement, the rate for each plan checker will be sixty-five dollars per hour ($65.00 /hr.). EXCEPTION: With prior written approval from the Director of Building and Engineering Services, payment shall be based upon Town approval of each task. Billing shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Availability of Records. Consultant shall maintain the records supporting this billing for not less than three (3) 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. Revised April 24, 1996 Page 2 of 7 N:mB&F6CNCLRP7S*PLANCK.AGR 8. Project Manager. The Project Manager for the Consultant for the work under this Agreement shall be Ms. Patricia Kutzmann, P.E. 9. Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. Except as provided in the proposal from Consultant dated March 21, 1997, no portion of these services shall be assigned or subcontracted without the written consent of the Town. 10. Notices. Any notice required to be given shall be deemed to be duly and properly given on the date of mailing if mailed postage prepaid, and addressed to: To Town: Scott R. Baker Director of Building and Engineering Services Town of Los Gatos 110 E. Main St. Los Gatos, CA 95032 Fax: (408) 354 -7593 To Consultant: Ms. Patricia Kutzmann, P.E. Kutzmann & Associates, Inc. 39355 California Street, Suite 200 Fremont, CA 94538 Fax: (510) 796 -9422 or sent by fax telecopier to the mutual parties or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 11. 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 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 including attorney's fees 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. Revised April 21, 1996 Page 3 of 7 N: ®B&EOCNCLRPTM•PLANCKAGR 12. 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 knowingly acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disclose such an interest to Town 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. 13. Equal Employment opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Consultant does not 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. Consultant shall not knowingly hire any subcontractors who engage in any employment discrimination as regulated by governing law. 14. Insurance. A Minimum Scope of Insurance: I. 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. Consultant shall provide to the Town all certificates of insurance, with Revised April 24,19% Page 4 of 7 MOB&B"CLRPTSOPLANCKAGR 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, canceled, 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. 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 Revised April 24, 1996 Page 5 of 7 MOMEOCNCLRPTS®PIANCKAGR by Consultant provide the required Workers' Compensation insurance for their respective employees. 15. 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. 16. 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. 17. 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 or Municipal Court of the County of Santa Clara. 18. 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 fifteen (15) days written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, 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. 19. 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. 20. Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, as well as costs not to exceed $7,500 in total. 21. Entire Agreement. This Agreement 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 Revised April u, 1996 Page 6 of 7 MOMEOCNCUPTS®P[ANCKAGR 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 David W. Knapp, Town Manager Consultant: Town of Los Gatos Print Name ATTEST: Title Clerk of the Town of Los Gatos, Approved as to Form: Los Gatos, California Marian V. Cosgrove, Town Clerk Natalie West, Interim Town Attorney Revised April u, i996 Page 7 of 7 MOME"URPTS ®PtANCK.AGR