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2003-056-Awarding A Construction Contract To Ticon For Project #03-39a Corporation Yard Employee Restroom RenovationRESOLUTION 2003 - 56 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AWARDING A CONSTRUCTION CONTRACT TO TICON FOR PROJECT # 03 -39A CORPORATION YARD EMPLOYEE RESTROOM RENOVATION WHEREAS, bids were sought in conformance with State and Town law for Project #03 -39A - Corporation Yard Employee Restroom Renovation; and WHEREAS, Ticon submitted the lowest bid which the Town Council deems to be responsive to the Town's solicitation. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Los Gatos, County of Santa Clara, State of California, that Ticon is declared to be the lowest responsible bidder for Project #03 -39A - Corporation Yard Employee Restroom Renovation. BE IT FURTHER RESOLVED that the Town Manager is hereby authorized and directed to execute a construction contract (Attached as Exhibit A) for said. project on behalf of the Town in the amount of $29,673.00. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 5" day of May, 2003, by the following vote: COUNCIL MEMBERS: AYES: Steve Glickman, Diane McNutt, Joe Pirzynski, Mike Wasserman, Mayor Sandy Decker NAYS: None ABSENT: None ABSTAIN: None SIGNED: MAYOR/OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: d � TOWN CLERK OF THE TOWN OF OS GATOS LOS GATOS, CALIFORNIA A( EEMENT FOR CONSTRUCTION', RVICE t�1-,(CB w zars rowN , AGE ( �," , THH THIS AGREEMENT is entered into this day of 2003, by an(tk%% een tfie- 'Fow °n-o-t - - Los Gatos, State of California, herein called the "Town ", and Ticon, engagedi - Vi�— construction services herein called the "Contractor ". G RECITALS A. The Town is considering undertaking activities to perform construction services in connection with Project 03 -39A - Corporation Yard Employee Restroom Renovation. B. The Town desires to engage a contractor to provide equipment and perform all work related to the Corporation Yard Employee Restroom Renovation because of contractor's experience and qualifications to perform the desired work. C. The Contractor 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. Scope of Services. The Contractor shall provide the following services listed below and as outlined in (Exhibit A). Time of Performance. The services of the Contractor are to commence upon the execution of this Agreement and issuance of a Town purchase order, with completion of the work by June, 2003. 2. Compliance with Laws. The Contractor shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Contractor represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Contractor to practice its profession. Contractor represents and warrants to Town that Contractor shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits (building permit will be provided by the Town of Los Gatos), and approvals which are legally required for Contractor to practice its profession. Contractor shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. Contractor shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 3. Information/Report Handling. All documents furnished to Contractor by the Town and all reports and supportive data prepared by the Contractor under this Agreement are the Town's property and shall be delivered to the Town upon the completion of Contractor's services or at the Town's written request. All reports, ini nation, data, and exhibits prepared ', assembled by Contractor in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Contractor shall not make any of the these documents or information available to any individual or organization not employed by the Contractor or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Contractor 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 Contractor in connection with other projects shall be solely at Town's risk, unless Contractor expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Contractor which is and has been confirmed in writing by Contractor to be a trade secret of Contractor. 4. Compensation. Compensation for Contractor's services shall not equal or exceed $29,673.00 as outlined in (Exhibit A). 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 changes to this contract shall be in writing and signed by the Owner and the Contractor. All invoices and statements to the Town shall reference the Town's 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 95030 5. Availability of Records. Contractor shall maintain the records supporting this billing for not less than three (3) years following completion of the work under this Agreement. Contractor shall make these records available to authorized personnel of the Town at the Contractor's offices during business hours upon written request of the Town. 6. Project Manager. The Project Manager for the Town for the work under this Agreement shall be Bruce Smith, Facilities Coordinator. The Project Manager for Ticon for the work under this Agreement shall be Bob Reynolds. 7. Assignability and Subcontracting. The services to be performed under this Agreement are responsibility of the contractor and subcontractors approved in advance by the Town. Contractor shall not assign this Agreement or subcontract all or part of its obligations hereunder without prior written approval of the Town. 8. Notices. Any id, oe required to be given shall be deemeL .o be duly and properly given if mailed postage prepaid, and addressed to: To Town: Ticon Director of Parks & Public Works Sam Burkhouse, President Town of Los Gatos P. O. Box 110027 Post Office Box 949 Campbell, CA 95011 -0027 Los Gatos, CA 95030 or personally delivered to Contractor to such address or such other address as Contractor designates in writing to Town. 9. Independent Contractor. It is understood that the Contractor, 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 Contractor 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. Contractor agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Contractor 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 Contractor or is based on allegations of Contractor's negligent performance or wrongdoing. 10. Wages. Workers employed in the work must be paid at rates at least equal to the then current prevailing wage scale as determined by the State Director of the Department of Industrial Relations. A copy is usually on file in the Office of the Director of Parks and Public Works. Pursuant to California Labor Code § 1770, any Contractor who is awarded a public works project and intends to use a craft of classification not shown on the general prevailing wage determinations, may be required to pay the wage rate of that craft of classification most closely related to it as shown in the general determinations effective at the time of the calls for bids. 11. Performance Bond and Labor Materials Bond. At or prior to the delivery of the signed Agreement, Contractor shall deliver to Owner the Performance Bond and Labor and Material person's Bond. All bonds shall be on forms provided by Owner, and each shall be in an amount equal to 100% of the contract price. All bonds shall be approved by the Director of Parks & Public Works of the Town of Los Gatos before the successful bidder may proceed with the Work. Failure or refusal to furnish bonds in the form satisfactory to the Director of Parks & Public Works of the Town of Los Gatos shall subject the bidder to penalties for delay in commencement of the Work or revocation of the Award of Contract. Pursuant to Cali_ nia Public Contract Code §22300, the ( _ itractor will be permitted, at its request and sole expense, to substitute securities for any monies withheld by the Town to ensure performance under the contract. Said securities will be deposited either with the Town or with the state or federally chartered bank as escrow agent. Securities eligible for this substitution are those listed in California Government Code § 16430 or bank or savings and loan certificate of deposit, interest bearing demand deposit accounts, standby letters of credit, or any other mutually agreed to by Contractor and the Owner. The Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. 12. Conflict of Interest. Contractor understands that its professional responsibilities is solely to the Town. The Contractor has and shall not obtain any holding or interest within the Town of Los Gatos. Contractor 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, Contractor 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. Contractor 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, Contractor discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Contractor shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 13. Equal Employment Opportunity. Contractor warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Contractor 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. 14. Insurance. A. Minimum Scope of Insurance: i. Contractor 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. Contractor 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. ( tractor shall provide to the Town al. , ertificates of insurance, with original endorsements effecting coverage. Contractor agrees that all certificates and endorsements are to be received and approved by the Town before work commences. iv. Contractor 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 Contractor for professional errors or omissions in the performance of the particular scope of work under this agreement. B. General Liability: 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 Contractor; products and completed operations of Contractor, premises owned or used by the Contractor. This requirement does not apply to the professional liability insurance required for professional errors and omissions. ii. The Contractor'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 Contractor'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 Contractor'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. 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 Town Clerk. D. In addition to these policies, Contractor 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, Contractor shall ensure that all subcontractors employed by Contractor provide the required Workers' Compensation insurance for their respective employees. 15. Indemnification. he Contractor shall save, keep and hol, armless 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 Contractor, or any of the Contractor's officers, employees, or agents or any Subcontractor. 16. 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. 17. 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. 18. Termination of Agreement.. The Town and the Contractor 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 Contractor shall deliver to the Town all plans, files, documents, reports, performed to date by the Contractor. In the event of such termination, Town shall pay Contractor 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 pursuant to paragraph_6 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. 19. Amendment. No modification, waiver, mutual termination, or amendment ofthis Agreement is effective unless made in writing and signed by the Town and the Contractor. 20. 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. 21. Entire Agreement. This Agreement including Exhibit A constitutes the complete and exclusive statement of the Agreement between the Town and Contractor. 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 Contractor have executed this Agreement as ofthe date indicated on page one (1). by: Town of Los Gatos Debra J. Figone Town Manager Recommended by: John E. Curtis Director of Parks and Public Works Approved as to form: Orry P. Korb Town Attorney Attest: Town Clerk of the Town of Los Gatos Town of Los Gatos Marian V. Cosgrove by: Ticon Signature Sam Burkhouse Print Name President Title