HomeMy WebLinkAboutMark ThomasCONSULTING SERVICES AGREEMENT BETWEEN
THE TOWN OF LOS ALTOS HILLS AND
MARK THOMAS & COMPANY, INC.
THIS AGREEMENT for consulting services is made by and between the Town of Los Altos Hills
("Town") and Mrk Thomas & Company, Inc. ("Consultant") (together sometimes referred to as the
"Parties") as of 2Lo n ly-ee-,.d ) 2011 (the "Effective Date") .
Section 1. SERVICES. Subject to -the terms and conditions set forth in this Agreement, Consultant
shall provide to Town the services described in the Scope of Work attached as Exhibit A at the time and
place and in the manner specified therein, In the event of a conflict in or inconsistency between the terms
of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall
end on frh, z and Consultant shall complete the work described in Exhibit A
on or before that date, unless the term of the Agreement is otherwise terminated or
extended, as provided for in Section 8, The time provided to Consultant to complete the
services required by this Agreement shall not affect the Town's right to terminate the
Agreement, as referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Consultant is engaged.
1.3 Assignment of Personnel, Consultant shall assign only competent personnel to perform
services pursuant to this Agreement, In the event that Town, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons,
Consultant shall, immediately upon receiving notice from Town of such desire of Town,
reassign such person or persons. I
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Section 1.1 above and to satisfy Consultant's obligations hereunder,
1.5 Public Works -ReAuirements. Because the services described in Exhibit A include "work
performed during the design and preconstruction phases of construction including, but not
limited to, inspection and land surveying work," the services constitute a public works
within the definition of Section 1720(a)(1) of the California Labor Code. As a result,
Consultant is required to comply with the provisions of the Labor Code applicable to public
works, to the extent set forth in Exhibit C.
Section 2. COMPENSATION. Town hereby agrees to pay Consultant a sum not to exceed
$17,588.00, notwithstanding any contrary indications that may be contained in Consultant'sproposal, for
services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict
between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of
Consulting Services Agreement between
Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 1 of 14
compensation, the Agreement shall prevail. Town shall pay Consultant for services rendered pursuant to
this Agreement at the time and in the manner set forth herein. The payments specified below shall be the
only payments from Town to Consultant for services rendered pursuant to this Agreement, Consultant shall
submit all invoices to Town in the manner specified herein. Except as specifically authorized by Town in
writing, Consultant shall not bill Town for duplicate services performed by more than one person.
Consultant and Town acknowledge and agree that compensation paid by Town to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant, Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible, Town
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following 'information:
• Serial identifications of progress bills; i.e., Progress Bill No, 1 for the first invoice,
etc.;
• The beginning and ending dates of the billing period;
• A Task Summary containing the original contract amount, the amount of prior
.billings, the total due this period, the balance available under the Agreement, and
the percentage of completion;
• At Town's option, for each work item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person doing
the work, the hours spent by each person, a brief description of the work, and
each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant
and each employee, agent, and subcontractor of Consultant performing services
hereunder;
• The Consultant's signature;
• Consultant shall give separate notice to the Town when the total number of hours
worked by Consultant and any individual employee, agent, or subcontractor of
Consultant reaches or exceeds 800 hours within a 12 -month period under this
Agreement and any other agreement between Consultant and Town. Such notice
shall include an estimate of the time necessary to complete work described in
Exhibit A and the estimate of time necessary to complete work under any other
agreement between Consultant and Town, if applicable.
2.2 Monthly Payment. Town shall make monthly payments, based on invoices received, for
services satisfactorily performed, and for authorized reimbursable costs incurred. Town
shall have 30 days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
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Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 2 of 14
2.3 Final Payment. Town shall pay the last 10% of the total sum due pursuant to this
Agreement within 60 days after completion of the services and submittal to Town of a final
invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. Town shall pay for the services to be rendered by Consultant pursuant to
this Agreement. Town shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering services pursuant to this Agreement,
Town shall make no payment for any extra, further, or additional service pursuant to this
Agreement,
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either fora task or -for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
2,5 Hourly Fees.. Fees for work performed by Consu'ltant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto as Exhibit B.
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2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the Town or Consultant terminates this
Agreement pursuant to Section 8,, the Town shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost and expense, provide all facilities and equipment that may be necessary to perform the services
required by this Agreement.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and
amounts of insurance listed below against claims for *injuries to persons or damages to property that may
arise from or in connection with the performance of the work hereunder by the Consultant and its agents,
representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall
provide proof satisfactory to Town of such insurance that meets the requirements of this section and under
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Town of Los Altos Hills and Mark Thomas & Company, Inc, Page 3 of 14
forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to
the Town, Consultant shall maintain the insurance policies required by this section throughout the term of
this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not
allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance
required herein for the subcontractor(s) and provided evidence that such insurance is in effect to Town.
Verification of the required insurance shall be submitted and made part of this Agreement prior to
execution. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, *maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Compensation Insurance and Employer's Liability Insurance shall be provided with limits of
not less than $1,000,000 per accident. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program of self-insurance
complies fully with the provisions of the California Labor Code. Determination of whether a
self-insurance program meets the standards of the Labor Code shall be solely in the
discretion of the Contract Administrator, The insurer, if insurance is provided, or the
Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation
against the Town and its officers, officials, employees, and volunteers for loss arising from
work performed under -this Agreement,
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this
Agreement in an amount -not less than $1,000,000 per occurrence, combined
single limit coverage for risks associated with the work contemplated by this
Agreement, If a Commercial General Liability Insurance or an Automobile Liability
form or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required
occurrence limit, Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting
therefrom, and damage to property resulting from activities contemplated under
this Agreement, including the use of owned and non -owned automobiles.
4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (most recent edition) covering comprehensive General Liability on an
"occurrence" basis. Automobile coverage shall be at least as broad as Insurance
Services Office Automobile Liability form CA 0001, Code 1 (any auto), No
endorsement shall be attached limiting the coverage.
4.2.3 Additional requirements. Each of the following shall be included in the
'insurance coverage or added as a certified endorsement to the policy:
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a. The Insurance shall cover on an occurrence or an accident basis, and not
on a claims -made basis,
b. Town, its officers, officials, employees, and volunteers are to be covered
as insureds as respects: liability arising out of work or operations
performed by or on behalf of the Consultant; or automobiles owned,
leased, hired, or borrowed by the Consultant
C. For any claims related to this Agreement or the work hereunder, the
Consultant's insurance covered shall be primary insurance as respects
the Town, its officers, officials, employees, and volunteers, Any insurance
or self-insurance maintained by the Town, its officers, officials, employees,
or volunteers shall be excess of the Consultant's insurance and shall not
contribute with it.
d, Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be canceled by either party, except after 30 days'
prior written notice has been provided to the Town,
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain
for the period covered by this Agreement professional liability insurance for
licensed professionals performing work pursuant to this Agreement in an amount
not less than $1,000,000 covering the licensed professionals' errors and
omissions. Any deductible or self-insured retention shall not exceed $150,000 per
claim.
4.3.2 Claims -made limitations. The following provisions shall apply if the professional
liability coverage is written on a claims -made form:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement or the
work, so long as commercially available at reasonable rates.
C. If coverage is canceled or not renewed and it is not replaced with another
claims -made policy form with a retroactive date that precedes the date of
this Agreement, Consultant shall purchase an extended period coverage
for a minimum of five years after completion of work under this
Agreement.
d. A copy of the claim reporting requirements must be submitted to the Town
for review prior to the commencement of any work under this Agreement,
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4.3.3 Additional Reguirements.-A certified endorsement to include contractual liability
shall be included in the policy
4.4 All Policies Requirements,
4.4.1 Acceptabill.ity of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish Town with complete copies of all policies delivered to
Consultant by the insurer, including complete copies of all endorsements attached
to those policies. All copies of policies and certified endorsements shall show the
signature of a person authorized by that insurer to bind coverage on its behalf. If
the Town does not receive therequired insurance documents prior to the
Consultant beginning work, it shall not waive the Consultant's obligation to provide
them. The Town reserves the right to require complete copies of all required
insurance policies at any time,
4.4.3 Deductibles and Self-insured Retentions. Consultant shall disclose to and
obtain the written approval of Town for the self-insured retentions and deductibles
before beginning any of the services or work called for by any term of this
Agreement. At the option of the Town, either: the insurer shall reduce or eliminate
such deductibles. or self-insured retentions as respects the Town, its officers,
employees, and volunteers; or the Consultant shall provide a financial guarantee
satisfactory to the Town guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
4.4.4 Wasting Policies. No policy required by this Section 4 shall include a "wasting"
policy limit (i.e. limit that is eroded by the cost of defense),
4.4.5 Waiver of Subrogation. Consultant hereby agrees to waive subrogation which
any insurer or contractor may require from vendor by virtue of the payment of any
loss. Consultant agrees to obtain any endorsements that may be necessary to
affect this waiver of subrogation.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation
in favor of the entity for all work performed by the consultant, its employees,
agents, and subcontractors,
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
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4.5 Remedies. In addition to any other remedies Town may have if Consultant fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time
herein required, Town may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies Town may have and are not the exclusive remedy for
Consultant's breach-,
Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
■ Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder, or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof, and/or
9 Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall, to the
fullest extent allowed by law, with respect to all Services performed in connection with this Agreement,
defend with counsel acceptable to Town, indemnify, and hold Town, its officers, employees, agents, and
volunteers, harmless from and against any and all claims that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the Consultant, ("Claims"). Consultant will bear all
losses, costs, damages, expense and liability of every kind, nature and description that arise out of, pertain
to, or relate to such Claims, whether directly or indirectly ("Liability"), Such obligations to defend, hold
harmless and indemnify the Town shall not apply to the extent that such Liabilities are caused by the sole
negligence, active negligence, or willful misconduct of the Town.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any
type of express or implied indemnity against the Indemnitees.
Notwithstanding the forgoing, to the extent this Agreement is a "construction contractil as defined by
California Civil Code section 2783, as may be amended from time to time, such duties of Consultant to
indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782,
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall
be an independent contractor and shall not be an employee of Town. Town shall have the
right to control Consultant only insofar as the results of Consultant's services rendered
pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3;
however, otherwise Town shall not have the right to control the means by which
Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding
any other Town, state, or federal policy, rule, regulation, law, or ordinance to the contrary,
Consultant and any of its employees, agents, and subcontractors providing services under
this Agreement shall not qualify for or become entitled to, and hereby agree to waive any
and all claims to, any compensation, benefit, or any incident of employment by Town,
including but not limited to eligibility to enroll in the California Public Employees Retirement
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System (PERS) as an employee of Town and entitlement to any contribution to be paid by
Town for employer contributions and/or employee contributions for PERS benefits,
6.2 Consultant Not an Agent. Except as Town may specify in writing, Consultant shall have
no authority, express or implied., to act on behalf of Town in any capacity whatsoever as an
agent. Consultant shall have no authority, express or implied, pursuant to this Agreement
to bind Town to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law, The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws and regulations applicable to the performance of the work hereunder, including but
not limited to, the California Building Code, the Americans with Disabilities Act, and any
copyright, patent or trademark law, Consultant's Failure to comply with any law(s) or
regulation(s) applicable to the performance of the work hereunder shall constitute a breach
of contract.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant and any subcontractors
shall comply with all applicable rules and regulations to which Town is bound by the terms
of such fiscal assistance program,
7.4 Licenses and Permits. Consultant represents and warrants to Town that Consultant and
its employees, agents, and any subcontractors have all licenses, permits, qualifications,
and approvals of whatsoever nature that are legally required to practice their respective
professions. Consultant represents and warrants to Town that Consultant and its
employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals that are
legally required to practice their respective professions. In addition to the foregoing,
Consultant and any subcontractors shall obtain and maintain during the term of this
Agreement valid Business Licenses from Town.
7.5 Nondiscrimination and Eguall opportunity. Consultant shall not discriminate, on the
basis of a person's race, religion, color, national origin, age, physical or mental handicap or
disability, medical condition, marital status, sex, or sexual orientation, against any
employee, applicant for employment, subcontractor, bidder for a subcontract, or participant
in, recipient of, or applicant for any services or programs provided by Consultant under this
Agreement. Consultant shall comply with all applicable federal, state, and local laws,
policies, rules, and requirements related to equal opportunity and nondiscrimination in
employment, contracting, and the provision of any services that are the subject of this
Agreement, including but not limited to the satisfaction of any positive obligations required
of Consultant thereby,
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Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION,
8.1 Termination. Town may cancel this Agreement at any time and without cause upon
written notification to Consultant.
Consultant may cancel this Agreement upon 30 days' written notice to Town and shall
include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; Town, however, may condition payment of
such compensation upon Consultant delivering to Town any or all documents,
photographs, computer software, video and audio tapes, and other materials provided to
Consultant or prepared by or for Consultant or the Town in connection with this
Agreement.
8.2 Extension. Town may, in its sole and exclusive discretion, extend the end date of this
Agreement. beyond that provided for in Subsection I.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if Town grants such an extension, Town shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator, Town shall have
no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period,
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assignment and Subcontracting. Town and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant's unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to Town for entering into this
Agreement was and is the professional reputation and competence of Consultant.
Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator, Consultant shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the subcontractors noted
in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between Town and Consultant shall survive
the termination of this Agreement,
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement, Town's remedies shall include, but not be limited to, the following:
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8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not
finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the amount that
Town would have paid Consultant pursuant to Section 2 if Consultant had
completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications,
records, files, or any other documents or materials, in electronic or any other form, that
Consultant prepares or obtains pursuant to this Agreement and that relate to the matters
covered hereunder shall be the property of theTown. Consultant hereby agrees to deliver
those documents to the Town upon termination of the Agreement. It is understood and
agreed that the documents and other materials, including but not limited to those described
above, prepared pursuant to this Agreement are prepared specifically for the Town and are
not necessarily suitable for any future or other use. Town and Consultant agree that, until
final approval by Town, all data, plans, specifications, reports and other documents are
confidential and will not be released to third parties without prior written consent of both
parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the Town under this Agreement for a -minimum of 3 -years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement,
9.3 Inspection and Audit of Records. Any records or documents that Section 9,2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of
the Town. Under California Government Code Section 8546.7, if the amount of public
funds expended under this Agreement exceeds $10,000.00, the Agreement shall be
subject to the examination and audit of the State Auditor, at the request of Town or as part
of any audit of the Town, for a period of 3 years after final payment under the Agreement.
Section 10
MISCELLANEOUS PROVISIONS..
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10.1 Attorneys' Fees, If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose,
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Santa Clara or in the United States District Court
for the Northern District of California,
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach, The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of Town or whose business, -regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq,
Consultant shall not employ any Town official in the work performed pursuant to this
Agreement. No officer or employee of Town shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq,
Consultant hereby warrants that it is not now, nor has it been in the previous 12 months,
an employee, agent, appointee, or official of the Town. If Consultant was an employee,
agent, appointee, or official of the Town in the previous twelve months, Consultant
warrants that it did not participate in any manner in the forming of this Agreement,
Consultant understands that, if this Agreement is made in violation of Government Code
§1090 et seq., the entire Agreement is void and Consultant will not be entitled to any
compensation for services performed pursuant to this Agreement, including reimbursement
of expenses, and Consultant will be required to reimburse the Town for any sums paid to
the Consultant, Consultant understands that, in addition to the foregoing, it may be subject
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Town of Los Altos Hills and Mark Thomas & Company, Inc, Page 11 of 14
to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will
be disqualified from holding public office in the State of California,
10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Richard Chiu
("Contract Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
Michael Fisher, P.E.
1960 Zanker Road
San Jose, CA 95112
Any written notice to Town shall be sent to:
Richard Chiu, RE,
26379 Fremont Road
Los Altos Hills, CA 94022
10.11 Professional Seal. Where applicable in the determination of the contract administrator,
the first page of a technical report, first page of design specifications, and each page of
construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report1design preparation. The stamp/sea] shall be in a block entitled
"Seal and Signature of Registered Professional with report/design responsibility," as in the
following example,
Seal and Signature of Registered Professional with
report/design responsibility,
10.12 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibits A, B, jjand]C[, and D]1 [ENSURE THAT THE CORRECT
EXHIBITS ARE LISTED] represents the entire and integrated agreement between Town
and Consultant and supersedes all prior negotiations, representations, or agreements,
either written or oral,
Exhibit A Scope of Services
Exhibit B Payment Schedule
Exhibit C Public Works Requirements
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be an original and all of which together shall constitute one agreement.
Consulting Services Agreement between
Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 12 of 14
[SIGNATURES ON FOLLOWING PAGE]
Consulting Services Agreement between
Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 13 of 14
The Parties have executed this Agreement as of the Effective Date,
TOWN OF LOS ALTOS HILLS, CONSULTANT
CarrCahill, -City Manager Michael J. Lhman
Attest:
A
Deborah L. Padovan, City Clerk
Approved as to Form:
Steven Y. Mattas, City Attorney
1071914.1
Consulting Services Agreement between
Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 14 of 14
RESOLUTION NO, 66-11
A RESOLUTION OF THE CITY COUNCIL
OF THE TOWN OF LOS ALTOS HILLS
AUTHORIZING THE PUBLIC WORKS DIRECTOR
TO AWARD THE CONTRACT FOR THE SIGHT DISTANCE FEASIBILITY STUDY
AT PAGEMILL ROAD AND BUENA VISTA DRIVE
WHEREAS, the City Engineer of the Town of Los -Altos Hills did, duly examine and
consider proposals submitted to it for the Sight Distance Feasibility Study; and
WHEREAS, the City Engineer recommends that the contract for' said project be awarded
to Mark Thomas & Company, Inc. for the amount of $17,588.00; and
WHEREAS, the City Engineer recommends the allocation of $3,000 for project
contingency;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the Town of Los
Altos Hills that:
1. The City Manager is hereby authorized and directed to execute the contract to Mark
Thomas & Company, Inc. on behalf of the Town of Los Altos Hills.
2. The Public Works Director is hereby authorized to approve potential contract change
orders in an amount not to exceed $3,000.
The above and foregoing Resolution was passed and adopted by the City Council of the Town of
Los Altos Hills at a special meeting held on the 7th day of December, 2011 by the following
vote:
AYES: Summit, Larsen, Mordo, Radford, Waldeck
NOES: None
ABSTAIN: None
ABSENT: None
BY:
0011- Cringe regummA, Mayor
ATTEST:
Deborah Padovan, City Clerk
Resolution Na. 66-11 Page 1
4;;p - -
EXHIBIT
SCOPE OF SERVICES
Consulting Services Agreement between [EFFECTIVE DATE]
Town of Los Altos Hills and Mark Thomas & Company, Inc, -- Exhibit A Page 1 of 1
t!-, c',
THOMAS COMPANY 'NC,
M 14 R
Proiddin Engineefing, Surveying and PIriming Services
ces
k4,
City of Los ..Altos Hills
PAGE MILL ROAD
SIGHT DISTANCE IMPROVEMENT
F E ASIBILITY STUDY
-S-COPE OF SERVICES AND FEE PROPOSAL
for
PRELIMINARY DESIGN PHASE
SCOPE OF SERVICES
As discussed, enclosed is our proposal to provide en ' a 41. 1
.gineering services including the surveying,
feasibility analysis and prelindnary design for the preliminary design phase.
Cour .project-Laiderstanding is based on discussions with Richard -Chiu with the City Los Altos
Hills .as well .as project research includin.g:
1) Review of project documents including the "Stop Sign WaiTmnt Study on. Page Mill Road
:at Buena Vista Drive. in Los Altos Hills, -California" dated 2/17/2'011, and the ".Sight.
Distance Rechook on Page Mill Road at Buena Vista Drive in Los Altos Hills,
.Cdfifoxmia" dated 6/�'2-8/201 1,
2) Site visit to rcxview the project site,.
3) Faoe to face , -me- h Jaime Rodriguez With the City of Palo Alto.
eting with
4) Discussion -with -one of the residents that. lives on Buena Vista,
Further, we uliderstand that there :are three stakeholders that will require coordination for this
project which includes: City Los Altos Hills, City of Palo Alto, and the County of Santa Clara,
9 IF
With this understanding and preliminary data, MTCo has analyzed the physical constraints,
calculated the effects ,of the. roadway gradient on. the reqnired -stopping distance, and understands'
the setting. of the roadway, -approaches.
From the described understanding of the prof J ect, we, have developed the following summary of
Services along. with the cost proposal for this work is identified Mow:
a) Topographic survey
b) Record Right of Way Determination.
c) Stak-eholder Agency Meetings
d) Feasibility Menlo & Preliminary Engineeling
e) Project visual limits staking
Adr. Richard Chiu Page 2 1011712011
a) Topographic Survey
MTCo to prepare topographic survey of area to be graded, and cross sections along the,
roadway where the sight distance is under consideration (to include 150' down slope
from the Buena Vista intersection, and 300' upslope), Above ground utilities and tree
information (including location, size and drip line of key trees) will be gathered in the
vicinity of survey work, Flow line data will be collected within the survey boundary,
The vertical datum will be assumed, unless a local benchmark is provided by the City
within the survey boundary.
The fee for the above mentioned work is as follows:
BUDGET
Survey Manager 2.0 lu-s @ $150/hr $300.00
Project Surveyor 12.0 lis @ $130/lu $15560.00
Survey Crew 8.0 hrs (a) $215/h.r $ L720.00
Additional MTCo Budget Request $3,580.00
b) Record Right of Way Determination
MTCo to research record right of way.
The fee for the above mentioned work is as follows:
P rTnORT
Survey Manager 2.0 hrs @ $150/lu- $300.00
Project Surae or 4.-0 hrs @ $130/hr $520.00
Additional MTCo Budget Request $820.00
c) Stakeholder Agency Meetings
MTCo to attend two stakeholder agency meetings with the County of Santa Clara, City
of Palo Alto and City of Los Altos Hills
The fee for the above mentioned work is as follows:
BUDGET
Project Manager (2 meetings) 6.0 hrs @ $192/hr $1,152.00
Design Engineer (I meeting only) 4.0 lu-s @ $13.5/lu- $540.00
Additional MTCo Budget Request $15692.00
d) Feasibility Memo & Preliminary Engineering
MTCo to prepare a brief memo and preliminary exhibit describing a recommended
solution including preliminary grading and retaining wall layout and estimation of
construction costs, The memo will include three alternatives:
1) Removing shrubs and branches only
2) Grading only (and removing vegetation)
3) Grading and retaining walls (removal of some vegetation, but large trees will be
saved where feasible with retaining walls)
Mr. Richard Chlu. Page 3 1011712011
The fee for the Above inentioned worIc is as follows:
&LDGET
pro" ect Manager 12,-0 hr -s -@ $192/fn- $ 25
J 304,00
Structures Manager 2.0 brs @ $236/hr $472,00
Design EI90'ineer 48.0 brs @.$135/br .$6480.00
—1
.Addlitional MT.Co Budget Request S 9.1256t-00
4.
0 Project visual limits stuping
MTCo to -stake proposed improvements. for -visual inspection for two, alteniatives
f I
(grading only, and grading with retaining walls) #
The fee for the :above ineationed work. is as follows.:
BUDGET
Pro jer,t Surveyor 4,-0 -hrs $ 13 01hr. $-5:20....00
Survey 'Crew 8,0 his @- $2.1.5/b -r -$.1720,00
Additional . M.Wo Budget Request 292429240;00
As desoribed in the proposal, we are requesting a fee of $17
..588.00 for this worj{, Please
provide us with written authorization for this work -at your .earliest convenience,,
If you havo any questions or need additional information, please do, 't hesitate to
call me direct
at -(40.8) 453-5371.
Si ncerely,
MARLURGUAN & COMPANY, INC.
Michael Fisher
Senior Project Manager
EXHIBIT B
COMPENSATION SCHEDULE
Consulting Services Agreement between [EFFECTIVE DATE]
Town of Los Altos Hills and Mark Thomas & Company, Inc, Exhibit B, Page 1 of 1
Mr. Richard Chili Page 2 1011712011
a) Topographic Survey
MTCo to prepare topographic survey of area to be graded, and cross sections along the
roadway where the sight distance is under consideration (to include 150' down slope
from the Buena Vista intersection., and 300' upslopo). Above ground utilities and tree
information (including location, size and drip line of key trees) will be. gathered in the
vicinity of survey work, Flow line data will be collected within the survey boundary.
The vertical datum will be assumed, unless a local benchmark is provided by the City
within the survey boundary.
The fee for the above mentioned work is as follows:
BUDGET
Survey Manager 2.0 hrs @ $150/hr $300.00
Project Surveyor 12.0 hrs @ $130/lu $15560.00
Survey Crew 8.0 hrs _ @ $215/in, $ 15720.00
Additional MTCo Budget Request $ 3,580.00
b) Record Right of Way Determination
MTCo to research record right of way.
The fee for the above mentioned work is as follows:
B UD GET
Survey Manager 2.0 hrs @ $150/br $300.00
Proj cot -Surveyor 4.0 hrs @ $1.30/hr $520.00
Additional MTCo Budget Request $820.00
c) Stakeholder Agency Meetings
MTCo to attend two stakeholder agency meetings with the. County of Santa Clara, City
of Palo Alto and City of Los Altos Hills
The fee for the above mentioned work is as follows:
BUDGET
Project Manager (2 meetings) 6.0 hrs @ $192/hr $ 1,152.00
Design Engineer (1 meeting only) 4.0 hrs @ $135/br $540.00
Additional MTCo Budget Request $ Ifi92.00
d) Feasibility Memo & Preliminary Engineering
MTCa to prepare a brief memo and preliminary exhibit describing a recommended
solution including preliminary grading and retaining wall layout and estimation of
construction costs. The memo will include three alternatives:
1) Removing shrubs and branches olity
2) Grading only (and removing vegetation)
3) Grading and retaining walls (removal of some vegetation, but large trees will be
saved where feasible with retaining walls)
Mr. Richard ChIzi Page 3 1011712011
The fee -for the above mentioned work is as follows:
BUDGET
Project Manager 12. 0 luts -@ .$.192/hr $ 2.1304.0*0
Structures ManaRex 2.0 hrs @ $236/hr $472.00
%6X
Design Eng' 48.0 h-rs
incer ./ $135/hr $ 6)480.00
Additional MT.Co Budget Request- S 9..9 -25.6* -00
0 Profed visual limits staking
MTCo to -stake proposed improvements for -visual spec ion for two alternatives
(grading -only, and gradling with retaim'ng walls),
The fee for the -above mentioned work is as follows:
B UD GE T
Project S-.w!veyor 4.0 hrs @ WON.- $520,00
Survey Crew 8 -.0 brs .$215/tur
$1.5720.,00
Additional MTCo Budget Request $2,240.00
As described in the proposal, we are requesting a fee -of $17,588, 00 for this work. Please
p ide us with written authorization for this -work at your -earliest convenience.
provide
If you have any questions or need additional infoimation, Please don't hesitate to call me direct
at :(408) 453-5373.
Sincerely,
MARI-K
UM AS,& CO.MPANY, INC.
.Fey
Michael Fisher ,
Senior Proj.cct Manager
EXHIBIT C
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the
services described in Exhibit A shall constitute a legal day's work under this contract,
B. In accordance with California Labor Code Section 1811, the time of service of any worker
employed in performance of the services described in Exhibit A is limited to eight hours during
any one calendar day, and forty hours during any one calendar week, except in accordance with
California Labor Code Section 1815, which provides that work in excess of eight hours during any
one calendar day and forty hours during any one calendar week is permitted upon compensation
for all hours worked in excess of eight hours during any one calendar day and forty hours during
any one calendar week at not less than one -and -one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the Town $25 for each worker
employed in the performance of the services described in Exhibit A -for each calendar day during
which the worker is required or permitted to work more than 8 hours in any one calendar day, or
more than 40 hours in any one calendar week, in violation of the provisions of California Labor
Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the Town has determined the general
prevailing wages in the locality in which the services described in Exhibit A are to be performed
for each craft or type of work needed to be as published by the State of California Department of
Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the
Town Public Works Office and shall .be made available on request, The Consultant and
subcontractors engaged in the performance of the services described in Exhibit A shall pay no
less than these rates to all persons engaged in performance of the services described in Exhibit
A.
B. In accordance with Labor Code Section 1775, the Consultant and any subcontractors engaged in
performance of the services described in Exhibit A shall comply with California Labor Code
Section 1775, which establishes a penalty of up to $50 per day for each worker engaged in the
performance of the services described in Exhibit A that the Consultant or any subcontractor pays
less than the specified prevailing wage, The amount of such penalty shall be determined by the
Labor Commissioner and shall be based on consideration of the mistake, inadvertence, or
neglect of the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or
the previous record of the Consultant or subcontractor in meeting applicable prevailing wage
obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of
Consulting Services Agreement between [EFECTIVE DATE]
Town of Los Altos Hills and Mark Thomas & Company, Inc. --Exhibit C Page 1 of 3
prevailing wages, A -mistake, inadvertence, or neglect in failing to pay the correct rate of
prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their
obligations under the California Labor Code. The Consultant or subcontractor shall pay the
difference between the prevailing wage rates and the amount paid to each worker for each
calendar day or portion thereof for which each worker was paid less than the prevailing wage
rate. If a subcontractor worker engaged in performance of the services described in 'Exhibit A is
not paid -the general prevailing per them wages by the subcontractor, the Consultant is not liable
for any penalties therefore unless the Consultant had knowledge of that failure or unless the
Consultant fails to comply with all of the following -requirements:
1. The contract executed between the Consultant and the subcontractor for the
performance of part of the services described in Exhibit A shall include a copy of the
provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of per them
wages by the subcontractor by periodic review of the subcontractor's certified payroll
records.
3. Upon becoming aware of a subcontractor's failure to pay the specified -prevailing rate of
wages, the Consultant shall diligently take corrective action to halt or rectify the failure,
including, but not limited to, retaining sufficient funds due the subcontractor for
performance of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor, the Consultant shall obtain an
affidavit signed under penalty of perjury from the subcontractor that the subcontractor
has paid the specified general prevailing rate of per them wages for employees engaged
in the performance of the services described in Exhibit.A and any amounts due pursuant
to California Labor Code Section 1813,
C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor
engaged in performance of the services described in Exhibit A shall keep accurate payroll
records showing the name, address, social security number, work, straight time and overtime
hours worked each day and week, and the actual per them wages paid to each journeyman,
apprentice, worker, or other employee employed in performance of the services described in
.Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made
under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of Sections 1771, 1811, and 1815 for
any work performed by the employer's employees on the public works project.
The payroll records required pursuant to California Labor Code Section 1776 shall be certified
and shall be available for inspection by the Owner and its authorized representatives, the
Consulting Services Agreement between [EFECTiVE DATE]
Town of Los Altos Hills and Mark Thomas & Company, Inc. --Exhibit C Page 2 of 3
Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the
Department of Industrial Relations and shall otherwise be available for inspection in accordance
with California Labor Code Section 1776.
D. In accordance with California Labor Code Section 1777,5, the Consultant, on behalf of the
Consultant and any subcontractors engaged in performance of the services described in ' Exhibit
& shall be responsible for ensuring compliance with California Labor Code Section 1777,5
governing employment and payment of apprentices on public works contracts.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance
of the services described in Exhibit A to employ for the services described .in Exhibit A any
person in a trade or occupation (except executive, supervisory, administrative, clerical, or other
non manual workers as such) for which no minimum wage rate has been determined by the
Director of the Department of Industrial Relations, the Contractor shall pay the minimum rate of
wages specified therein for the classification which most nearly corresponds to services
described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be
applicable as a minimum for such trade or occupation from the time of the initial employment of
the person affected -and during the continuance of such employment.
Consulting Services Agreement between [EFECTIVE DATE]
Town of Los Altos Hills and Mark Thomas & Company, Inc. --Exhibit C Page 3 of 3
I,OSAI,TOS HILLS
December 9, 2011
Steve Mattas
Meyers, Nave, et al.
575 Market Street, Suite 2600
San Francisco, CA 94105
RE: Consulting Services Agreement Between the Town and Mark Thomas &
Company
Dear Steve:
Please find enclosed an Agreement with Mark Thomas and Company for the Page Mill
Road Sight Distance Improvement Feasibility Study and two signature pages. Please
sign both pages and return only the signature pages in the envelope provided.
Thank you.
Enclosures
26379 Fremont Road
Los Altos Hills
California 94022
650/941-7222
Fax 650/941-3160