1999-130-Enter Into An Agreement For $58,304 With D.Y.M.E To Provide Project #9939 Mechanical And Electrical Upgrades Of Town FacilitiesRESOLiJ'fl'flOI~ fl999 e fl3®
RESOLUTION OF'TI-E TOWI~T COUNCIL
OF TIDE TOWN OF LOS GATOS
AUTI-IODIZING TIDE TOWN MANAGER
TO ENTER INTO AN AGREEMENT~FOR $58,304.00 WITI~
D.Y:M:E., INC.. TO PROVIDE PROJECT #9939
MECHANICAL AND ELECTRICAL UPGRADES OF TOWN FACILITIES
W>EIEREAS, it is in the best interest of the Town of Los Gatos to undertake activities to
provide engineering consultant services for Project #9939 -Mechanical and Electrical Upgrades
of Town Facilities.
WHEREAS, D.Y.M.E., INC. is qualified by education, experience, and a history of
performing similar work; and
WI3EREAS, D:Y.M.E., INC. was evaluated and found to be the most qualified to
provide the needed services; and
WHEREAS, the work contemplated requires technical abilities and staffing not found in
Town staff; .and
RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara,
State of California, that the Town enter into an agreement for $5,304;00 (Exhibit A) with
D.Y.M.E., INC. to provide consulting services in conjunction with the .Mechanical and Electrical
Upgrades of 'T'own Facilities, and that the Town Manager is authorized, and is hereby directed, to
execute said contract/agreement in the name and on behalf of the Town.
PASSED A1~iD ADOPTED at a regular meeting of the Town Council of the 'Town of
Los Gatos, California, held on the 7`" day of September,1999 by the following vote:
COL7NCIL MEMBERS:
.AYES: .Steven Blanton, Linda Lubeck, .Joe Pirzynski,
Mayor Jan Hutchins
NAYS: None
ABSENT: handy !-~ttaway
.ABSTAIN:. None
SIGTT~'g,.
MAC
L®S
ATTEST:
C~~~~,J
CLERK (~F THI/ TOV4'N G'F LO GATOS
L®S GATOS, CALIFQR~~IA
G>z, E~
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.AGREEMENT FOR MECHANICAL/ELECTRICAL
ENGINEERING CONSULTANT SERVICES
THIS AGREEMENT is entered into this day of , 1999, by and
between the Town of Los Gatos, State of California, herein called the "Town", and D.Y.M.!E., INC.,
herein cal ed the "Consultant".
RECITALS
A. The Town is considering undertaking activities to provide engineering consultant services
for Project #9.939 - .Mechanical and Electrical System Upgrades of Town Facilities.
B. The Town desires to engage an engineering consultant to provide consulting services in
conjunction with the Mechanical and Electrical "System Upgrades of Town Facilities, and has
selected Consultant 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,
SCOpe of Services. The Consultant -shall provide the following services.
A. Task One - $15,914.00
After receiving .record drawings from the Town, review and study drawings.
Meet with Town representatives.
Room by room review of Town facilities.
Review panels and switch gears.
Review ductwork, piping, and control.
Meet with Town representatives to report findings.
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Exhibit A
Perform load calculations .and evaluate existing capacities.
.Make recommendations to test switch gears.
Review .general condition of HVAC duct, piping, control and equipment.
B. Task Two - $34,154.00
Establish system performance standard.
Meet with Town representatives.
Determine system deficiency and provide recommendations.
Test of switch gears when approved by the Town
Conduct performance measurement of HVAC system equipment air and water when
approved by the Town.
Prepare Y2K study preliminary report of emergency power supply to equipment;
lighting, and power for emergency operation.
Meet with Town representatives and submit preliminary Y2K report.
Establish construction budget and service fees .for As-Built documents and Phase II
work.
Prepare draft report and submit to Town.
C. Task Three - .$5,312.00
Meet with Town representatives.
Prepare final report and submit to Town.
2. .Time of Performance. The services of the Consultant are to commence :upon the execution
of this Agreement .and issuance of a Town purchase order, with completion of the project
by January 15, '.2000..
3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes,
ordinances, and regulations ofgoverning federal, state and local laws. Consultant represents
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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 llicense ....pursuant to Chapter 14 of
the Code of the Town of Los Gatos.
4. Sole Responsibility. Consultant shall be responsible for employing or engaging all,persons
necessary to perform the services under this Agreement.
5. Information/Report Handling. All documents furnished to Consultant by the Town and. all
.reports and supportive data prepared by the Consultant underthis 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 CAonsultant 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. Compensation. Compensation for Consultant's professional services shall not exceed
$58,304.00, and payment shall be 'based upon Town approval of each completed task.
Regarding Task Two for testing switch gears and performance measurement of HVAC
system equipment air and water, the work shall be approved by the Town and shall not
exceed $10,000.00 per each operation.
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.
Payment shall be net thirty (30) days.
All invoices and statements to the Town shall reference the TOwn`s purchase order number
and be addressed as follows:
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Invoices:. Town of Los Gatos
Attn: Accounts Payable
P,O. Box 949
Los Gatos, CA 95031
Statements: Town of Los Gatos
Attn: Sandy Ortiz
P.O. Box 949
Los Gatos, CA 95031
7. Reimbursable Expenses. Reimbursable expenses are in addition to compensation for basic
and additional services.. Expense of reproductions, plotting, postage and handling of
drawings, specification and other documents, Reimbursable compensation for Task Two
scope of services shall not exceed $1462.00, which includes 20 sets of draft reports, and for
Task Three scope of services shall not exceed $1462.00, which .includes 20 sets of~ final
reports. Each set of draft report shall not exceed. $73.10 per set.
8, Availability of Records. Consultant shall maintain the records supporting this billing for not
'.less than three (3) years following completion ofthe workunder 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.
9. Project Manager. 'The Proj ect Manager for the Consultant for the work under this Agreement
shall be Daniel D, Y. Yue (M 16241) .
10. Assi ng ability and Subcontractinf?. The services to be performed under this Agreement are
unique and personal to the Consultant. Consultant has selected to assign or subcontract
electrical portion of these services with Jack D. Todd, Inc. ,electrical engineer as listed in
the proposal.
11. 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: Paul L. Curtis, Director of Community Development
1.10 E. Main Street
Los Gatos, CA 95030
To Consultant: D.Y.IvI,E., INC.
1217 Park .Avenue
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San Jose, CA 95126
or personally delivered to Consultant to such address or such other address as Consultant
designates in writing to Town.
12, Independent Consultant. 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 Consultant and not
an agent or employee of the Town, As an independent Consultant he/she shall not obtain any
rights to retirement benefits or other benefits which accrue to Town employee(s). Withprior
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 he 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.
13. Conflict of Interest. Consultant understands that its professional responsibilities is so ely 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 his 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.
14. 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 ahem 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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1 S. 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,OOD,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 o '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: iablity 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 i .
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iii. Any(- r°ilure to comply with reporting provis,~ ~s of the policies shall not
affeL. .,verage provided to the Town, its offcers, ~. .vials, employees or volunteers.
iv, The Consultant`s insurance shall apply separate y 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 shal'1 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 requiredby California law andshall provide evidence of
such policy to the Town before beginning services under this Agreement. Further,
Consultant shall ensure that .all subcontractors employed by Constzitant .provide the
.required Workers' Compensation .insurance for their respective employees,
16, .Indemnification. The Consultant shall save., keep and hold harmless indemnify and defend
the Town its officers, agent, employees and vo unteers from ail .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.
17. 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.
18. 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.
19. 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 and 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.
20. 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.
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21. Dis utes. In any dispute over any aspect of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, including costs of appeal.
22, 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: D.Y.M.E., INC.
David W. Knapp, Town Manager
Print Name
Title
ATTEST:
Clerk of the Town of Los Gatos,
Los Gatos, California
Marian V. Cosgrove, Town C erk
Approved as to Form:
Orry P. Korb, Town Attorney
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July 1S. 1999