1998-132-Execute An Agreement With David M. GriffithRESOLUTION 1998 - 132
RESOLUTION OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO EXECUTE AN
AGREEMENT WITH DAVID M. GRIFFITH - MAXIMUS
FOR SERVICE TO PROVIDE A COST AND SERVICES ANALYSIS
FOR THE TOWN OF LOS GATOS
WHEREAS, the Town desires to obtain services to provide a cost and service
analysis for the Town.
THEREFORE, BE IT RESOLVED, by the Town Council of the Town of Los
Gatos, County of Santa Clara, State of California, that the Town of Los Gatos enter into an
agreement (Attached as Exhibit A) with David M. Griffith - Maximus for a cost of services and
fee analysis study, and that the Town Manager is authorized, and is hereby directed, to execute
said agreement in the name and on behalf of the Town of Los Gatos.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Los Gatos, California, held on the 3rd day August, 1998 by the following vote:
COUNCIL MEMBERS:
AYES: Randy Attaway, Joanne Benjamin, Steven Blanton, Jan Hutchins,
Mayor Linda Lubeck.
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK OF THE TOWN OF GATO
LOS GATOS, CALIFORNIA
)FF7CE ,Qf THE TOWN CLERX
AGR___Z //1/
gill
AGREEMENT FOR FINANCIAL CONSULTANT SERVI ORD
mo
THIS AGREEMENT is entered into this day of. 19_, by and
between the Town of Los Gatos, State of California, herein called the "Town ", and David M.
Griffith- Maximus, engaged in providing accounting and financial consulting services herein called
the "Consultant ".
RECITALS
A. The Town is considering undertaking activities to perform a comprehensive review of fees
and charges for service.
B. The Town desires to engage a financial Consultant to provide consulting services in
conjunction with the examination of Town fees and charges for service, 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.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Scone of Services. The Consultant shall provide the following services listed below.
A. As provided in the Request for Proposals and Qualification.
2. Time of Performance The services of the Consultant are to commence upon execution of
this Agreement, with delivery of the draft final report anticipated within four months of said
execution, and delivery of the final report within two weeks of approval by Town of the draft
report.
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 a Town of Los Gatos business license pursuant to Chapter 14 of the
R�md: May 28, 1998 Page 1 of 7
N:UIGRUWPIFEES1,FEESTUDY.WPD
Consultant shall maintain a Town of Los Gatos business license 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 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 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 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
$ A6 WO ; and payment shall be based upon Town 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, including the amount. Also, plans, specifications, documents
or other pertinent materials shall be submitted for Town review, even if only in partial or
draft form.
7. Availability of Records. Consultant shall maintain the records supporting'this billing for not
less than three (3) 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. Protect Manager. The Project Manager for the Consultant for the work under this Agreement
shall be Sharline Jackson - Ringgold, Project Accountant.
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.
Revised: May 28, 1998 Page 2 of 7
N:\MGRU W P \FEES \FEESTDDY. W PD'
10. 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:
To Consultant:
or personally delivered to Consultant to such address or such other address as Consultant
designates in writing to Town.
11. 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 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.
12. 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 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.
13. Equal Employment Opportunity. Consultant warrants that it is an equal opportunity
Revised: May 28, 1998 Page 3 of 7
N:\MGR\JWP\FEES\FEESTUDY.WPD
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.
14. 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) 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.
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.
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. This requirement does not apply
to the professional liability insurance required for professional errors and
omissions.
ii. The Consultanfs insurance coverage shall be primary insurance as respects
the Town, its officers, officials, employees and volunteers. Any insurance or
Revised: May 28, 1998 Page 4 of 7
NAMGRU WP\FEES\FEESTUDY. WPD
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.
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 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, 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.
D. 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.
15. Indemnification. The Consultant shall save, 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.
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 or Municipal Court of the County of Santa Clara.
Revised: May 28, 1998 Page 5 of 7
NAMGRU W P\FEESTEESTUDY. W PD
Agreement shall be in the Superior or Municipal Court of the County of Santa Clara.
18, Termination ation 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 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 Exhibit A 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 of this
Agreement is effective unless made in writing and signed by the Town and the Consultant.
20. Disputes. In any dispute over any aspect of this Agreement, the prevailing parry shall be
entitled to reasonable attorney's fees, as well as costs not to exceed $7,500 in total.
21. Entire Agrecmgnt. 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
David W. Knapp, Town Manager
Town of Los Gatos
Consultant:
Print Name
Title
Revised: May 28, 1998 Page 6 of 7
N:\MGRTNP\FEES\FEESTUDY-WPD
Clerk of the Town of Los Gatos, Approved as to Form:
Los Gatos, California
Marian V. Cosgrove, Town Clerk Orry P. Korb, Town Attorney
Revised: May 28, 1998 Page % of %
N:\MGRUWP\FEES\FEESTUDY.WPD
JUL 24 '98 03 :25PM DMG
AxIMUs
Helping Government Serve The people
Ms. Sharline Jackson- Ringgold
Project Accountant
Town of Los Gatos
1 10 E. Main Street
Los Gatos, CA 95032
ATTN: Ms. Stephanie Gutowski
Dear Stephanie,
June 24, 1998
P.2.
This responds to our conversation re. modifying the DMG -Town of Los Gatos cost of
service contract.
ISSUE 1 - "Time of Performance"
As discussed, the Agteement will be going to the Town Council at least one month
later than originally anticipated in the UP, therefore pushing back the (proposed)
completion date by at least thirty days. This will most probably create some
downstream problems vis -a -vis finalizing and/or presenting the report during. the
holiday season. Also, and as I am sure you can appreciate, our work is dependent
upon receiving information from Town staff in a timely manner. A longer than
anticipated time response in either providing basic data or reviewing output is beyond
our control and, of course, elongates the process. We typically suggest a one week
turnaround. If this is accomplished we can move through the process expeditiously.
Many times. however, the one week time frame becomes optimistic due to other staff
requirements.
I would suggest the following: "The services of the Consultant are to commence upon
execution of this Agreement, with delivery of the draft final report anticipated within
four months of said execution, and delivery of the final report within two weeks of
approval by Town of the draft report."
Or: "The services to be performed hereunder by the Consultant shall be undertaken
and completed In such sequence as to assure their expeditious completion and best
cairy out the purposes of the agreement. Delivery of the final report shall take place
within two weeks of approval by Town of the draft report."
ISSUE 2 - Payment Schedule
The proposed contract does not include a provision for progress payments. I suggest
progress payments tied to deliverable products, i.e.:
Method of Payment. The Consultant shall be entitled to payment in accordance with
the provisions:
4320 Auburn Boulevard, Suite 2000 • Sacramento, CA 95841 • 916.485.8102 • FAX 916.485.0111
JUL 24 '98 03:25FM DMG p,8
• The Consultant shall receive thirty percent (30%) of the fixed fee upon
completion of field work associated with user fee data collection and submission of a
brief status report indicating progress to the date of submission.
• The Consultant shall receive an additional forty five percent (45 %) of the
fixed fee upon submission of the draft of the final user fee report.
• The Consultant shall receive an additional twenty percent (20 %) of the
fixed fee upon submission of the final report.
• The Consultant shall receive the Final five percent (5 %) of the fixed fee
upon completion of all services under this Agreement to the satisfaction of the City.
The balance of the contract is acceptable.
Very truly yours,
Richard Pearl
VIMUSot Los Gatos
Cost PlaniUser Fee Pr000sai