Attachment 11 of 7
AGREEMENT FOR SERVICES
THIS AGREEMENT is dated for identification this 6th of June, 2017 and is made by and between
TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Jensen Landscape
Services, LLC, (“Service Provider”), whose address is 1983 Concourse Drive, San Jose, CA 95131.
This Agreement is made with reference to the following facts.
I. RECITALS
1.1 The Town desires to engage Service Provider to provide landscape maintenance services.
1.2 The Service Provider represents and affirms that it is willing to perform the desired work
pursuant to this Agreement.
1.3 Service Provider warrants it possesses the distinct professional skills, qualifications,
experience, and resources necessary to timely perform the services described in this
Agreement. Service Provider acknowledges Town has relied upon these warrant ies to
retain Service Provider.
II. AGREEMENT
2.1 Scope of Services. Service Provider shall provide services as described in that certain
Proposal sent to the Town on May 10, 2017, which is hereby incorporated by reference and
attached as Exhibit A.
2.2 Term and Time of Performance. The effective date of this Agreement shall begin on July
1, 2017 and will continue through June 30, 2022, subject to appropriation of funds,
notwithstanding any other provision in this agreement.
2.3 Compliance with Laws. The Service Provider shall comply with all applicable laws, codes,
ordinances, and regulations of governing federal, state and local laws. Service Provider
represents and warrants to Town that it has all licenses, permits, qualifications and
approvals of whatsoever nature which are legally required for Service Provider to practice
its profession. Service Provider shall maintain a Town of Los Gatos business license
pursuant to Chapter 14 of the Code of the Town of Los Gatos.
2.4 Sole Responsibility. Service Provider shall be responsible for employing or engaging all
persons necessary to perform the services under this Agreement.
2.5 Information/Report Handling. All documents furnished to Service Provider by the Town
and all reports and supportive data prepared by the Service Provider under this Agreement
are the Town’s property and shall be delivered to the Town upon the completion of services
or at the Town's written request. All reports, information, data, and exhibits prepared or
assembled by Service Provider in connection with the performance of its services pursuant
to this Agreement are confidential until released by the Town to the public, and the Service
Provider shall not make any of these documents or information available to any individual
ATTACHMENT 1
2 of 7
or organization not employed by the Service Provider or the Town without the written
consent of the Town before such release. The Town acknowledges that the reports to be
prepared by the Service Provider 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 Service Provider in connection with other projects shall be solely at Town's
risk, unless Service Provider expressly consents to such use in writing. Town further agrees
that it will not appropriate any methodology or technique of Service Provider which is and
has been confirmed in writing by Service Provider to be a trade secret of Service Provider.
2.6 Compensation. Compensation for services shall not exceed $103,959 for the first year,
inclusive of all costs. Payment shall be based upon Town approval of each task.
Compensation for years two through five of this agreement shall be adjusted upward
annually for the remaining term of this Agreement by the change, if any, in the San
Francisco – Oakland – San Jose Metropolitan Area Consumer Price Index for All Urban
Consumers, all items (CPI). The adjustment shall be based upon the CPI published on
December 31 of the preceding year. If the CPI indicates a downward adjustment,
compensation would remain at the base amount of $103,959.
2.7 Failure to Perform. It is mutually agreed by SERVICE PROVIDER and TOWN that in the
event that performance of the work by SERVICE PROVIDER under this Agreement is not
completed as scheduled, TOWN will suffer damages and will incur other costs and
expenses of a nature and amount which is difficult or impractical to determine. The Parties
agree that by way of ascertaining and fixing the amount of damages, costs and expenses,
and not by way of penalty, SERVICE PROVIDER shall pay to TOWN the sum of one
hundred dollars ($100.00) per location per scheduled service in liquidated damages for
every missed service beyond three missed services in a month in addition to reducing the
monthly payment by the cost of that service. In the event that the liquidated damages are
not paid, SERVICE PROVIDER agrees that TOWN may deduct the amount of unpaid
damages from any money due or that may become due to SERVICE PROVIDER under this
Agreement.
2.8 Schedule. Service Provider shall provide a schedule to the Town prior to beginning work.
The schedule shall identify dates of service for each location. Schedule changes shall be
approved by the Town with 24-hour notice. Each missed location shall be considered a
failure to perform, unless the contractor provides advance notice of schedule change.
2.9 Billing. Billing shall be monthly by invoice within thirty (30) days of the rendering of the
service and 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.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be
addressed as follows:
3 of 7
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655
2.10 Availability of Records. Service Provider shall maintain the records supporting this billing
for not less than three years following completion of the work under this Agreement.
Service Provider shall make these records available to authorized personnel of the Town at
the Service Provider offices during business hours upon written request of the Town.
2.11 Assignability and Subcontracting. The services to be performed under this Agreement are
unique and personal to the Service Provider. No portion of these services shall be assigned
or subcontracted without the written consent of the Town.
2.12 Independent Service Provider. It is understood that the Service Provider, in the
performance of the work and services agreed to be performed, shall act as and be an
independent Service Provider and not an agent or employee of the Town. As an
independent Service Provider he/she shall not obtain any rights to retirement benefits or
other benefits which accrue to Town employee(s). With prior written consent, the Service
Provider 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. Service Provider agrees to testify in any litigation brought regarding the subject
of the work to be performed under this Agreement. Service Provider 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 Service
Provider or is based on allegations of Service Provider's negligent performance or
wrongdoing.
2.13 Conflict of Interest. Service Provider understands that its professional responsibilities are
solely to the Town. The Service Provider has and shall not obtain any holding or interest
within the Town of Los Gatos. Service Provider 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, Service Provider
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. Service Provider 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 Service
Provider discovers it has employed a person with a direct or indirect interest that would
conflict with its performance of this Agreement Service Provider shall promptly notify
Town of this employment relationship, and shall, at the Town's sole discretion, sever any
such employment relationship.
4 of 7
2.14 Equal Employment Opportunity. Service Provider warrants that it is an equal opportunity
employer and shall comply with applicable regulations governing equal employment
opportunity. Neither Service Provider nor its subService Providers 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.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. Service Provider 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 injur y and property
damage.
ii. Service Provider 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 sing le
limit per accident for bodily injury and property damage.
iii. Service Provider shall provide to the Town all certificates of insurance, with
original endorsements effecting coverage. Service Provider agrees that all
certificates and endorsements are to be received and approved by the Town
before work commences.
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 Service Provider; products and completed operations of Service
Provider, premises owned or used by the Service Provider.
ii. The Service Provider'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 Service Provider'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.
5 of 7
iv. The Service Provider'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.
3.2 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.
3.3 Workers’ Compensation. In addition to these policies, Service Provider 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, Service Provider shall ensure that all subService Providers employed by Service
Provider provide the required Workers' Compensation insurance for their respective
employees.
3.4 Indemnification. The Service Provider shall save, keep, hold harmless and 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
Service Provider, or any of the Service Provider's officers, employees, or agents or any
subService Provider.
IV. GENERAL TERMS
4.1 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.
4.2 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 regardi ng this
Agreement shall be in the Superior Court of the County of Santa Clara.
4.3 Termination of Agreement. The Town and the Service Provider shall have the right to
terminate this agreement with or without cause by giving not less than fifteen days (15)
written notice of termination. In the event of termination, the Service Provider shall deliver
to the Town all plans, files, documents, reports, performed to date by the Service Provider.
In the event of such termination, Town shall pay Service Provider 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, 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.
6 of 7
4.4 Amendment. No modification, waiver, mutual termination, or amendment of this
Agreement is effective unless made in writing and signed by the Town and the Servi ce
Provider.
4.5 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.
4.6 Prevailing Wages. In accordance with the provisions of Sections 1770 et seq., of the Labor
Code, the Director of the Industrial Relations of the State of California has determined the
general prevailing rate of wages applicable to the work to be done. Service Provider will be
required to pay to all persons employed on the project by the Service Provider sums not less
than the sums set forth in the documents entitled “General Prevailing Wage Determination
made by the Director of Industrial Relations pursuant to California Labor Code, part 7,
Chapter 1, Article 2, Sections 1770, 1773, 1773.1.” These documents may be obtained
from the State of California.
Pursuant to Labor Code section 1725.5, no Service Provider or subService Provider may be
awarded a contract for public works on a public works project unless registered with the
Department of Industrial Relations.
This project is subject to compliance monitoring and enforcement by the Department of
Industrial Relations and/or the Town of Los Gatos.
The Service Provider is required to post notices on Public Works requirements.
4.7 Notices. Any notice required to be given shall be deemed to be duly and properly given if
mailed postage prepaid, and addressed to:
Town of Los Gatos
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
Jensen Landscape Services, LLC
1983 Concourse Drive
San Jose, CA 95131
or personally delivered to Service Provider to such address or such other address as
Service Provider designates in writing to Town.
4.8 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the
terms and conditions of this Agreement in respect of the Products or Services and any
attachments to this Agreement, then the terms and conditions of this Agreement shall
prevail over attachments or other writings.
4.9 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and
exclusive statement of the Agreement between the Town and Service Provider. 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 Service Provider have executed this Agreement.
7 of 7
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Matt Morley
Director of Parks and Public Works
Service Provider, by:
Title
Approved as to Form:
______________________________________
Robert Schultz, Town Attorney