1994-026-Execute An Agreement With Civil Engineering Associates For Engineering And Design Services For Project 9328RESOLUTION 1994 -26
RESOLUTION OF THE TOWN OF LOS GATOS
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO EXECUTE AN
AGREEMENT WITH CIVIL ENGINEERING ASSOCIATES
FOR ENGINEERING AND DESIGN SERVICES
FOR PROJECT 9328 - LOS GATOS CREEK TRAIL
RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa
Clara, State of California, that the Town of Los Gatos execute an agreement with Civil
Engineering Associates for engineering and design services for Project 9328 - Los Gatos
Creek Trail, and that the Town Manager is authorized, and is hereby directed, to execute
said Agreement (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 February, 1994 by the following vote:
COUNCIL MEMBERS:
AYES: Joanne Benjamin, Steven Blanton, Linda Lubeck, Patrick O'Laughlin,
Mayor Randy Attaway
NAYES: None
ABSENT: None
ABSTAIN: None
SIGNED:
MAY YQHE TOWN F LOS GATOS
LOS G _ A
ATTEST:
t.
CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
TOw1V (CLERK
IHH:
RE_ "a
BID: -
AGREEMENT PROVIDING DESIGN AND SUPERVISION CONSULTANT SERVICES
THIS AGREEMENT is entered into this 21st day of January, 1994 by and
between the Town of Los Gatos, State of California, herein called the "Town ", and CIVIL
ENGINEERING ASSOCIATES (CEA), engaged in providing design and supervision
consulting services herein called the "Consultant ".
RECITALS
A. The Town is considering undertaking activities to design and supervise Project 9328 -
Los Gatos Creek Trail.
B The Town desires to engage a Civil Engineering Consultant to provide consulting
services in conjunction with design and construction supervision of Project 9328
Los Gatos Creek Trail, 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:
1. Scope of Services. The Consultant shall provide the following services listed
below.
A. A Project Manager is to be assigned who will be responsible for managing
the diverse elements of this project such that the project is finished in a
timely and economic manner. This person is to be a proactive individual
who will anticipate problems and implement solutions prior to the problems
jeopardizing the project. The Project Manager will be responsible for
ensuring that all consultants are on schedule and will interact extensively
with the Town. This individual will report directly to the Director of
Building and Engineering Services. Civil Engineering Associates has
designated Don Utz /Peter McMorrow to act as Project Manager. Any
change in Project Manager is subject to approval by the Town.
B. The design services. The consultant will be required to provide all
drawings, design and engineering services for this project. These services
include (but are not limited to) utilities, structural engineering, survey,
design, specifications and contract document preparation as follows:
1) Paved Trail
2) Drainage structures
3) Precast barrier and cantelevered pathway.
EXHIBIT A
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C. Additional Responsibilities:
1) Review and update preliminary estimate.
2) Conduct all facets of relocation A /R.
3) Provide architectural design and prepare for Planning Commission
approval.
4) Prepare plans for traffic control devices A /R.
5) Monitor soils investigations A /R.
7) Provide Survey (topographic).
8) Record survey using Caltrans coordinate system.
D. The supervision services in this portion of the consultant contract include
(but are not limited to) contract administration, construction observation,
structural inspection, welding inspection, utilities relocation and
coordination, survey, soils engineering, materials testing, progress payments,
and change orders. The construction contracts are anticipated to last
approximately six months and are predicated on an early spring start date.
E. Consultant shall carry out this project under the direction of the Director
of Building and Engineering Services for the purpose of receiving
information, reviewing progress and providing the guidance needed to solve
problems that may arise.
2. Schedule. The services of the Consultant are to commence upon the execution
of this Agreement with completion of the program as follows:
A. Design Services shall be completed within 45 days after Notice to Proceed
has been issued for this phase of work.
B. Supervision Services, shall be provided "as needed" after Notice to Proceed
has been issued for this phase of work, and shall be completed upon Town's
acceptance of "record drawings ".
The above services shall be completed by the completion dates respectively
stated above unless said completion dates are extended by the Director of
Building and Engineering Services.
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.
Consultant shall maintain 'a Town of Los Gatos business license pursuant to
Chapter 15 of the Code of the Town of Los Gatos.
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4. Sole Responsibility. _ y Consultant shall be responsible for employing or engaging
all persons necessary to perform the services under this Agreement.
5. tn!f o r m gatio n J R --e rt 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
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
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.
6. Comnensation. Compensation for Consultant's professional services shall not
exceed $42,400; and 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. Also, plans, specifications, documents
or other pertinent materials shall be submitted for Town review, even if only in
partial or draft form.
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.
8. Proiec_ t Manag ' The Project Manager for the Consultant for the work under
this Agreement shall be Peter B. McMorrow.
9. Assignability and Subcontractin . The 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.
The following subcontractor is anticipated to perform services as part of this
project:
Ruth & Going
Structural Engineers
919 The Alameda
San Jose CA 95126
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Any work or services subcontracted hereunder shall be specified by written
contract or Agreement and shall be subject to each provision of this Agreement.
10. 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: Building and Engineering Services
110 E Main Street
Los Gatos, CA 95032
To Consultant: Civil Engineering Associates
1641 N First Street - #280
San Jose CA 95112
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 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.
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 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. 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 sever this employment relationship.
13. Equal Employment OQportunity. Consultant warrants that it is an equal
opportunity employer and shall comply with applicable regulations governing
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equal employment opportunity. Neither Consultant nor its subcontractors 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.
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.
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.
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.
Page 5 of 7 Revised 7/6/93
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 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 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
either the County of Santa Clara or the County of San Mateo.
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.
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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 party shall be an en titled uto reasonable sattorney's h fees as e well[ h ss ascot 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 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
Town of Los Gatos
ATTEST:
Clerk of the Town of Los Gatos,
Los Gatos, California
Marian V. Cosgrove, Town Clerk
Consultant:
Print Name
Title
Approved as to Form:
Larry E. Anderson, Town Attorney
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