Attachment 1Agreement for Services – Elite Heating & Air Conditioning Inc. P a g e | 1 of 9
AGREEMENT FOR SERVICES
THIS AGREEMENT is dated for identification this 1st day of July 2019 and is made by and between
TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and ELITE HEATING & AIR
CONDITIONING INC. (“Service Provider”), whose address is 1725 Butano Drive, Milpitas, CA
95035. This Agreement is made with reference to the following facts. This contract will remain
in effect from July 1, 2019 to June 30, 2024.
I.RECITALS
1.1 Town sought proposals for the purchase described in this Agreement, and Service
Provider was found to be the lowest responsible Service Provider for this purchase.
1.2 Service Provider represents and affirms that it is willing to perform the desired work
pursuant to this Agreement.
1.3 The Town desires to engage Service Provider to provide HVAC Preventative Maintenance
and Repair Services.
1.4 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 warranties to
retain Service Provider.
II.AGREEMENTS
2.1 Scope of Services. Service Provider shall provide services as described in that certain
Proposal sent to the Town on May 23, 2019, 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, 2019 and will continue through June 30, 2024, 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.
ATTACHMENT 1
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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 Service Provider's 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 the
these documents or information available to any individual 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 the supplies and materials delivered and for Service
Provider's professional services is as follows:
• Routine heating, ventilation, and air conditioning (HVAC) services shall not exceed
$43,158 annually, inclusive of all costs.
• Unanticipated maintenance and repairs shall not exceed $30,000 annually. Payment
shall be based upon Town approval prior to each task being completed
For a total annual amount not to exceed $73,158, and a total contract amount not to
exceed $365,790.
2.7 Billing. Billing shall be by invoice within thirty (30) days of the rendering of the services
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 invo ices and statements to the Town shall be
addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655
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2.8 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's offices during business hours upon written request of the Town.
2.9 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 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.
2.10 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.
2.11 Independent Contractor. 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
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 Service Provider may perform
some obligations under this Agreement by subcontracting, but may not delegate ultimate
responsibility for performance or assign or transfer inter ests 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.
2.12 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
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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.
2.13 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 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.
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 injury 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 single 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. This requirement does not apply to the professional liability
insurance required for professional errors and omissions.
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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.
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 subcontractors 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 sub-contractor.
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 th is Agreement constitute a continuing
waiver of a subsequent breach of the same or any other provision of this Agreement.
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4.2 Severability. If any term of this Agreement is held invalid by a court of competent
jurisdiction, the remainder of this Agreement shall remain in effect.
4.3 Warranty. Service Provider shall remedy any defects due to faulty materials and/or
workmanship and pay for any damages to other work and/or existing facilities resulting
therefrom which shall appear within a period of one year from the date of recording of
final acceptance.
4.4 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.
4.5 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.
4.6 Prevailing Wages. This project is subject to the requirements of Section 1720 et seq. of
the California Labor Code requiring the payment of prevailing wages, the training of
apprentices and compliance with other applicable requirements. Contractors and all
subcontractors who perform work on the project are required to comply with these
requirements. Prevailing wages apply to all projects over $1,000 which are defined as a
“public work” by the State of California. This includes: construction, demolition, repair,
alteration, maintenance and the installation of photovoltaic systems under a Power
Purchase Agreement when certain conditions are met under Labor Code Section 1720.6.
This include service and warranty work on public buildings and structures.
4.6.1 The applicable California prevailing wage rate can be found at: www.dir.ca.gov and
are on file with the Town of Los Gatos Parks and Public Works Department , which
shall be available to any interested party upon request. The contractor is also
required to have a copy of the applicable wage determination posted and/or
available at each jobsite.
4.6.2 Specifically, contractors are reminded of the need for compliance with Labor Code
Section 1774-1775 (the payment of prevailing wages and documentation of such),
Section 1776 (the keeping and submission of accurate certified payrolls) and
1777.5 in the employment of apprentices on public works projects. Further,
overtime must be paid for work in excess of 8 hours per day or 40 hours per week
pursuant to Labor Code Section 1811-1813.
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4.6.3 Special prevailing wage rates generally apply to work performed on weekends ,
holidays and for certain shift work. Depending on the location of the project and
the amount of travel incurred by workers on the project, certain travel and
subsistence payments may also be required. Contractors and subcontractors are
on notice that information about such special rates, holidays, premium pay, shift
work and travel and subsistence requirements can be found at www.dir.ca.gov.
4.6.4 Only bona fide apprentices actively enrolled in a California Division of
Apprenticeship Standards approved program may be employed on the project as
an apprentice and receive the applicable apprenticeship prevailing wage rates.
Apprentices who are not properly supervised and employed in the appropriate
ratio shall be paid the full journeyman wages for the classification of work
performed.
4.6.5 The public entity for which work is being performed or the California Department
of Industrial Relations may impose penalties upon contractors and subcontractors
for failure to comply with prevailing wage requirements. These penalties are up
to $200 per day per worker for each wage violations identified; $100 per day per
worker for failure to provide the required paperwork and documentation
requested within a 10-day window; and $25 per day per worker for any overtime
violation.
4.6.6 As a condition to receiving progress payments, final payment and payment of
retention on any and all projects on which the payment of prevailing wages is
required, the contractor agrees to present to the TOWN, along with its request for
payment, all applicable and necessary certified payrolls (for itself and all applicable
subcontractors) for the time period covering such payment request. The term
“certified payroll” shall include all required documentation to comply with the
mandates set forth in Labor Code Section 1720 et seq, as well as any additional
documentation requested by the Agency or its designee including, but not limited
to: certified payroll, fringe benefit statements and backup documentation such as
monthly benefit statements, employee timecards, copies of wage statements and
cancelled checks, proof of training contributions (CAC2 if applicable), and
apprenticeship forms such as DAS-140 and DAS-142.
4.6.7 In addition to submitting the certified payrolls and related documentation to the
TOWN, the contractor and all subcontractors shall be required to submit certified
payroll and related documents electronically to the California Department of
Industrial Relations. Failure to submit payrolls to the DIR when mandat ed by the
project parameters shall also result in the withholding of progress, retention and
final payment.
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4.6.8 No contractor or subcontractor may be listed on a bid proposal for a public works
project unless registered with the Department of Industrial Relations pursuant to
Labor Code section 1725.5 [with limited exceptions from this requirement for bid
purposes only under Labor Code section 1771.1(a)].
4.6.9 No contractor or subcontractor may be awarded a contract for public work on a
public works project, unless registered with the Department of Industrial Relations
pursuant to Labor Code section 1725.5. Contractors MUST be a registered “public
works contractor” with the DIR AT THE TIME OF BID. Where the prime contract is
less than $15,000 for maintenance work or less than $25,000 for construction
alternation, demolition or repair work, registration is not required.
4.7 Amendment. No modification, waiver, mutual termination, or amendment of this
Agreement is effective unless made in writing and signed by the Town and the Service
Provider.
4.8 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.
4.9 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 Elite Heating & Air Conditioning Inc.
Attn: Town Clerk 1725 Butano Drive
110 E. Main Street Milpitas, CA 95035
Los Gatos, CA 95030
OR personally delivered to Service Provider to such address or such other address as
Service Provider designates in writing to Town.
4.10 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.
4.11 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.
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IN WITNESS WHEREOF, the Town and Service Provider have executed this Agreement.
Town of Los Gatos by: Service Provider by:
Laurel Prevetti, Town Manager
Recommended by:
Title
Matt Morley
Director of Parks and Public Works
Approved as to Form:
Attest:
____________________________________
Robert Schultz, Town Attorney Shelley Neis, CMC, Town Clerk
HVAC Cost Summary 2019
Elite Heating & Air Conditioning, Inc
Basic Services Times
Bid Per Annual
Item Location Description Cost/Month Year Cost
1 Civic Center HVAC Maintenance $1,028 12 $12,336
2 Adult Rec Center HVAC Maintenance $803 12 $9,636
3 Youth Rec Center HVAC Maintenance $129 12 $1,542
4 Library HVAC Maintenance $931 12 $11,172
5 Police Ops HVAC Maintenance $417 12 $5,004
6 Service Center HVAC Maintenance $289 12 $3,468
$43,158
Additional Services T & M Cost
7 Plumbing Service - Straight Time n/a
8 Plumbing Service -Overtime n/a
9 HVAC Service Calls - Straight Time $128.50/hr
10 HVAC Service Calls -- Overtime $192.75/hr
11 HVAC Service Calls - Holidays $193
12 Service Truck Charge $50/call out
13 Material Mark Up 12%
14 Minimum Call Out Charge $257/call out
EXHIBIT A