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2002-144-Approving Agreement For Professional Services With Lynx Technologies In Connection With The Town Digital Map ProjectRESOLUTION 2002 -144 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS APPROVING AN AGREEMENT FOR PROFESSIONAL SERVICES WITH LYNX TECHNOLOGIES IN CONNECTION WITH THE TOWN DIGITAL MAP PROJECT - {PHASE 2) - DIGI'TAL PARCEL MAP -PROJECT 03-24 WHEREAS, on June 3, .2002, the Town ofthe Town of Los Gatos adopted its budget for the period 2002-2007; and WHEREAS, the budget includes funding for the Town Digital Map Project - (Phase 2) -Digital Parcel Map.; and WHEREAS, it is necessary for the Council to secure professional services to perform survey services in connection with the Town Digital Map Project; .and WHEREAS, the Town Council has selected the firm of Lynx Technologies to provide the necessary professional assistance to .complete the Town Digital Map Project. NOW, THEREFORE, IT IS RESOLVED that the Town Council of the Town of Los Gatos hereby approves the attached Agreement ('Exhibit A) for Professional .Services with Lynx Technologies to complete the Town'Digital Map Project. BE IT FURTHER RESOLVED that the Town Manager is hereby authorized and directed to execute said. agreement on behalf of the Council. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos held on the 3rd day of September, 2002, by the following vote: AYES; Steven Blanton, ,Sandy Decker, Steve Glickman, Joe Pirzynski, Mayor Randy Attaway NAYS: None ABSENT: None ABSTAIN: None SIGNED.: MAYOR OF THE T ' OF LOS OS LOS GATOS, CALIFORNIA ATTEST: t~: ..-~ CLERK OF TH'E TOWN OF LO GATO LOS GAT~OS, CALIFORNIA Tt~1t ~~-_~. AGREEMENT FOR ENGINEERING DESIGN CONSUL'~jTT4SERVICES ~~ THIS AGREEMENT is :entered into this day of ~',t~S~~::~~~~~-;~:2 ~p~ry~i~.-_„__, between the Town of .Los Gatos, herein called "Town" and Lynx Technologies engaged in providing aProfessional Services Agreement to perform engineering services in connection with the Town Digital Map Project (Phase 2) -Digital Parcel Map herein called the "Consultant". RECITALS A. The Town is considering undertaking service services in connection with the Town Digital Map Project (Phase 2) -Digital Parcel Map. B. The Town desires to engage a Consultant to perform survey services in conjunction with Project 03-24 -Town Digital Map Project (Phase 2) -Digital Parcel Map 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. Scone of Services. The Consultant shall provide the following services out outlined in Consultant's Proposal as shown (attached hereto as Attachment 2 and .incorporated by reference herein). 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 March 30, 2003, asprovided for in Consultant's proposal (attached hereto as Attachment 2 and incorporated ~by reference herein). 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 aTown of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 4. Sole ResponsbilitX. 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 under this Agreement are the Town property and shall be delivered to the Town upon the completion of Consultant's services or at the Townwrittenrequest. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to his Agreement are confidential until released by the Town to the public, andthe 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 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 $ 49,700 and payment shall be based upon'Town's 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 otherpertinent 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 purchase order number and be addressed as follows: INVOICES: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 95030 STATEMENTS: Town of Los Gatos Attn: Finance Department P.O. Box 655 Los Gatos, CA 9.5030 7. Availability ofRecords. 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. 8. Project Manager. The Project Manager for the Consultant for the work under this Agreement shall be Patrick Kelleher. 9. Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: John E. Curtis To CONSULTANT: Director of Parks and Public Works 'Patrick Kelleher Town of Los Gatos Lynx Technologies Post Office Box 949 1350 41St Ave., Suite 202 Los Gatos, CA 95030 Capitola, CA 95010 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 10. .Independent Contractor. It is understood that the Consultant, in the performance of the worl~ 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. 11. 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 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 subj ect 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 conflictwith 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. 12. Equal Employment OpportunitX. 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. 13. 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) combinedsingle 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 ($1,000,0.00) 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, .liability insurance in amounts not less than $1.,000,000 which is sufficient to insure Consultant for errors or omissions nthe performance ofthe 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. Thies. 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 orself-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. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except withrespect 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, 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 Clerl~/Secretary of the Town. D. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required byCalifornia 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. 14. Indemnification. The Consultant shall cave, 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. 15. Waiver. No failure on the part of either party to exercise anyrght 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. 16. .Governing Law. This Agreement, regardless ofwhere 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. 17. 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 thatbears the same ratio to the maximum contract price as the work delivered to the Townbears to completed services contemplated under this Agreement pursuant to Attachment 2 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. 18. 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. 19. 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. 20. .Entire Agreement. This Agreement, including Exhibits A, constitutes the complete and exclusive statement of the Agreement between 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 onpage one (1). Towiv of Los GATOS, by: Debra J. Figone Town Manager Recommended by: ~~ Jo .Curtis Di c r of Parks and Public Works By: Lynx Tecnologies .~- .(Signature) ~~.~.~ i C K~~~~~~~ (Print Name) {Company) Approved. as to Form: Orgy P. Korb Town Attorney ATTEST.: Clerk of the Town of Los Gatos Los Gatos, California Marian V. Cosgrove.