Attachment 3_Draft Consultant Services Agreement with NCE
Agreement for Consultant Services ATTACHMENT 3
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AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on (DATE) by and between TOWN OF LOS GATOS, a
California municipal corporation, (“Town”) Nichols Consulting Engineers, (“Consultant”), whose
address is 501 Canal Blvd., Suite I, Richmond, CA 94804. This Agreement is made with reference
to the following facts.
I. RECITALS
1.1 The Town desires to engage Consultant to provide services to provide design and
construction support services for Shannon Road Repair Project.
1.2 The Consultant represents and affirms that it is willing to perform the desired work
pursuant to this Agreement.
1.3 Consultant warrants it possesses the distinct professional skills, qualifications, experience,
and resources necessary to timely perform the services described in this Agreement.
Consultant acknowledges Town has relied upon these warranties to retain Consultant.
II. AGREEMENTS
2.1 Scope of Services. Consultant shall provide services as described in that certain Proposal
sent to the Town on (DATE), 2021, which is hereby incorporated by reference and attached
as Exhibit A.
2.2 Term and Time of Performance. This contract will remain in effect from date of execution
to December 31, 2023.
2.3 Compliance with Laws. The Consultant shall comply apply the reasonable standard of
care 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 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. Consultant 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 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
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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 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.
2.6 Compensation. Compensation for Consultant's professional services shall not exceed
$XXX, inclusive of all costs. Payment shall be based upon Town approval of each task.
2.7 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:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655
2.8 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.
2.9 Assignability and Subcontracting. 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.
2.10 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
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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.
2.11 Litigation Support. CONSULTANT shall receive compensation for preparing for and/ or
appearing in any litigation at the request of TOWN, except: (1) if such litigation costs are
incurred by the CONSULTANT in defending its work or services or those of any of its sub-
CONSULTANTs or (2) as may be required by the indemnification requirements of the
CONSULTANT. Compensation for litigation services requested by the TOWN shall be paid
at a mutually agreed upon rate and/ or at a reasonable rate for such services.
2.12 Conflict of Interest. Consultant understands that its professional responsibilities are 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.
2.13 Equal Employment Opportunity. 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 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.
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III. INSURANCE AND INDEMNIFICATION
3.1 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.
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.
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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.
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, 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.
3.4 Mutual Indemnification. CONSULTANT shall indemnify and hold harmless TOWN, its
officers, agents, and employees from any and all claims, suits, losses, pure economic
damages, costs (including reasonable attorney’s fees) and demands, administrative fees,
penalties and fines imposed, and demands, including reasonable attorney’s fees
connected therewith, on account of personal injury, including death, or property damage,
sustained by any person or entity not a part to this Agreement between CONSULTANT
and TOWN to the extent such injury, death or damage is caused by the negligence or
willful misconduct of CONSULTANT or their respective employees, officers and agents.
CONSULTANT agrees to the full extent permitted by law, to indemnify, defend, and hold
harmless TOWN, its officers, directors, and employees from and against any and all claims,
demands, losses, penalties, fines and causes of action of every kind and character (including
reasonable attorney fees) arising from or relating to Pre-existing Conditions.
3.5 Mutual Indemnification. TOWN shall indemnify and hold harmless CONSULTANT, its
officers, agents, and employees from any and all claims, suits, losses, pure economic
damages, costs (including reasonable attorney’s fees) and demands, administrative fees,
penalties and fines imposed, and demands, including reasonable attorney’s fees
connected therewith, on account of personal injury, including death, or property damage,
sustained by any person or entity not a part to this Agreement between CONSULTANT
and TOWN to the extent such injury, death or damage is caused by the negligence or
willful misconduct of TOWN or its CONSULTANTs or their respective employees, officers
and agents.
TOWN agrees to the full extent permitted by law, to indemnify, defend, and hold
harmless CONSULTANT, its officers, directors, shareholders, employees, affiliates, and
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subsidiaries and their successors from and against any and all claims, demands, losses,
penalties, fines and causes of action of every kind and character (including reasonable
attorney fees) arising from or relating to Pre-existing Conditions.
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 regarding this
Agreement shall be in the Superior Court of the County of Santa Clara.
4.3 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 days (15) 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, 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.
4.4 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.
4.4.1 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.
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4.4.2 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, weekend and holiday pay, and shift pay must be
paid pursuant to applicable Labor Code section.
4.4.3 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.
4.4.4 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.
4.4.5 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
mandated by the project parameters shall also result in the withholding of
progress, retention and final payment.
4.4.6 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)].
4.4.7 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.
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4.4.8 Should any contractor or subcontractors not be a registered public works
contractor and perform work on the project, Contractor agrees to fully
indemnify the TOWN for any fines assessed by the California Department of
Industrial Relations against the TOWN for such violation, including all staff
costs and attorney’s fee relating to such fine.
4.4.9 The TOWN shall withhold any portion of a payment; including the entire
payment amount, until certified payroll forms and related documentation are
properly submitted, reviewed and found to be in full compliance. In the
event that certified payroll forms do not comply with the requirements of
Labor Code Section 1720 et seq., the TOWN may continue to hold sufficient
funds to cover estimated wages and penalties under the contract.
4.5 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.
4.6 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.
4.7 Dispute Resolution. TOWN and CONSULTANT agree that they shall first submit any and
all unsettled claims, counterclaims, disputes, and other matters in question between
them arising out of or relating to this Agreement to mediation in accordance with the
Construction Industry Mediation Rules of the American Arbitration Association, effective
as of the date of this Agreement.
4.8 Force Majeure. Neither party to this Agreement will be liable to the other party for
delays in performing the services, nor for the direct or indirect cost resulting from such
delays, that may result from labor strikes, riots, war, acts of governmental authorities,
health crises, extraordinary weather conditions or other natural catastrophe, or any
other cause beyond the reasonable control or contemplation of either party.
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
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
Nichols Consulting Engineers
501 Canal Blvd., Suite I
Richmond, CA 94804
or personally delivered to Consultant to such address or such other address as Consultant
designates in writing to Town.
4.10 Certifications /Warranties. CONSULTANT neither makes, nor offers, nor shall
CONSULTANT be liable to TOWN for any express or implied warranties with respect to the
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performance of Services. Estimates of cost, approvals, recommendations, opinions, and
decisions by CONSULTANT are made on the basis of CONSULTANT’s experience,
qualifications, and professional judgment and are not guaranteed. CONSULTANT shall not
be regarded as a guarantor with respect to any work product provided to TOWN.
4.11 Third Party Reliance Upon Reports. All CONSULTANT work products are prepared solely
for use by TOWN and shall not be provided to any other person or entity without
CONSULTANT’s written consent. TOWN shall indemnify CONSULTANT from and against
any and all claims, liability, damages, actions or proceedings brought by any person or
entity claiming to rely upon information or opinions contained in reports or other work
products provided to such person or entity, published, disclosed or referred to without
CONSULTANT’s written consent.
4.12 Ownership and Retention of Documents. Reuse or modification of any such documents by
TOWN, without CONSULTANT’s written permission, shall be at TOWN’s sole risk, and
TOWN agrees to indemnify and hold CONSULTANT harmless from all claims, damages, and
expenses, including attorney’s fees, arising out of such reuse by TOWN or by others acting
through TOWN.
4.13 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.
4.14 Entire Agreement. This Agreement, including all Exhibits, 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.
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IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.
Town of Los Gatos by: Consultant, by:
Laurel Prevetti, Town Manager
Recommended by:
Matt Morley
Director of Parks and Public Works
J. Ryan Shafer, PE, GE
Principal
Approved as to Form:
Robert Schultz, Town Attorney
Attest:
Shelley Neis, CMC, Town Clerk