Loading...
HomeMy WebLinkAboutMark Thomas (3)CONSULTING 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 Mark Thomas & Company, Inc. ("Consultant") (together sometimes referred to as the "Parties") as of March 30 _, 2015 (the "Effective Date"). Section 1. SERVICES. Subject to the terms and conditions set -forth in this s Agreement Cons ultant 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. Term of Services. The term of this Agreement! shall begin on the Effective Date and shall end on 0 Z2 0Z 2 0 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 right Agreement shall not affect the Town's " ht to terminate the ] .1 Agreement, as referenced, n Section 8. 102 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 w4ich Consultant is engaged. Assign-ment 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, 1 reassign such person or persons. 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 1.1above and to satisfy Consultant's obligations hereunder. 1.5 Public. works Reguirements.. 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 $20,480.00, notwithstanding any contrary indications that may be contained in Consultant's proposal, 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 Agregiment 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 maybe 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 amonth 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; ie., 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 workperformed under the Agreement. by Consultant and each employee, agent, and subcontractor of Consultant..,performing- services hereunder; 0 The Consultant's signature; N Consultant shall give separate notice to the Town when the totalnumberof hours worked by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours within 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. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 2 of 14 2.3 Final awent. 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 amounti n excess of the maximum amount of compensation provided above either for a 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 flourly!ees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B. 2.6 Reimbursable ExiDenses, Re., J I rnhw- mahle Oymans, -nealflad hnlmul :z nei Qh -oil nnt PumaFQJ am L -41W %0 0 % II%0%NR%A W%'Fg%" Wy %ALI W 1 1%0% •& J%A1 %I %f %410 1%.# VW I W W V a•I Ichod ;n thO .4 A W intnI A %nmnl int nf m % inn nr^11; inci 1 indor thie AqrnaMepf w% 11 A U 1%0 %qL%A1 16I 9 1l ilk %W .1.1,m, mens ti I ;f4 A %I T I %A %# W %41 1 %.4 %.It 1.1 A I W I ILU:t %0 thni -Rholl nnt h 2.7Payment 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 Paim ent.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 reimbursableexpenses incurred for work satisfactorily completed as of thedate of written notice of -termination. Consultant shall maintain adequate logs .and timesheet.s to ve L n 'fy 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 Adm inistrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide allfacilities 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 Consulting Services Agreement between 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 thisAgreement. 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 Employers 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 Admihistrator. 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 lall General and Automobile Li,abilitOnsurance., 4,21 General reggirements. 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 0,00,000 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 se ' parately 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 ncluding the use of owned and non -owned automobiles. 4.2.2 Minim m SCcover it, Commerci a I 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. - Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 4 of 14 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 Liabilify Insurance. 4.3.1 General reglytrem en'ts Consultant, at: its own cost and expense, shall maintain for the peri . od 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 4 , omissions. Any deductible or self-insured -retention shall not exceed $150,000 per claim. 4.3.2 Claims made limitations,, The following provisions isions- shall apply Jf 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. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc., Page 5 of 144 4.3.3 Additional Requirements. -A certified endorsement to include contractual liability shall be included in the policy 4.4 All Policies Regulrernents. 4.4.1 A�cceptab lily. of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VI 1. 4242 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 tobind coverage on its behalf. If the Town does not receive the required 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 icalled 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 (11,e.. limit that.is eroded by the cost of defense). 4.405 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 uirements stated. herein. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 6 of 14 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 1. 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 w4h-,ao�mse indemnify, and hold Town, its -officers, employees agents of the Town only as their work relates to thp performance of work sternming from the Consultant's work, and volunteers, harmless from and against af+y-a, , -Gf -,pe4ai_tG%W R d 4 9 - G I a m" 41,,; e4414e claims and liabil.ity for damages to the extent caused by 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 to extent that they 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 thirdR partyclai0 ms against the Consultant, the Consultant waives any and all rights of any type of express or implied indembity against- the Indemn"tent% Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" 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 Indeoendent 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, a ' nd hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by Town, Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 7 of 14 including but not limited to eligibility to enroll in the California Public Employees Retirement 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 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 REQ IREMENTS. 7,11 Governing Law. The laws of the State of California shall govern this s Agreement.. 7,2 gompliance 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 ht, patent or trademark law. Consultant's Failure to corn ly with any law(s) or regula.copyrigp I tion(s) applicable to the performance of the work hereunder shall constitute a breach .of contract, a 'r i 7.3 Other Governmental Reguiatonss, To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall complywith all applicable rules and regulations to which, Town is bound b the terms y of such fiscal assistance program. 7.4 Ucenses 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, anv subcontractors shall, at their sole costand 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 Nondisscrimination and Egual Opportunitv. 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 fora 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. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 8 of 14 Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION, 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 0 .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 1 A. Any such extension shall require a written amendment to this Agreement, as provid d fir r 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 UAdministrator, nless authorized by the Contract 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 Subcontractin 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-V5 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 W'Consultant, If Consultant materially breaches any of the terms of this Agreement, Town's remedies shall include, but not be limited to, the following: Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 9 of 14 8.6.1 1 mmed 'lately 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 tain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 896.4 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, 01FRECORDSO 9,11 Records Created as..Pa rt of Consultant's Performance. All reports, data, maps, models,, charts, studies, surveys, photographs, memoranda, plans studies, specifications, records, files., or any other docurnents 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 the Town. 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 a . bove, 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, specificationsl 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 tures: 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.`x, 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. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 10 of 14 10.1 A.ttorngs' 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, theprevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which 11 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. 10.13 Severabillftyll 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 11m, plied, l"v►er 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 shat inure to the benefit of a and shall apply to and bind the successors and assigns of the parties. 10.6 Use, of Regelled Products, Consultant shall prepare andsubmit all reports, written studies andother printed material on recycled paper to the extent it is available at equal or , 0- 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, wouldp lace Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 of se 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 of seq. Consultant hereby warrants that it is not now, nor has it been in the previous 12 months, I I. ious 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 of 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 Consulting Services Agreement between 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 Sollicitatiom, 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 95-112 Any written notice to Town shall be sent to: Richard Chiu, P.E. 26379 Fremont Road Los Altos Hills, CA 94022 10.11 Professional I. Where applicable in the determinati . on of the contractadministrator, the firstpage 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 report/design preparation, The stamp/seal shall be in a block entitled "Seal and Signature of Registered Professional with reporUdesign responsibility," as in the following example. Seal and Signature of Registered Professional With gis ered report/design responsibility. 10.12 Integration. This Agreement, including the scope ofwork attached hereto and incorporated herein as Exhibits A, B, if and]C f , and Qfl [ENSURE THAT THE CORRECT EXHIBITS AIDE 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 The Parties have executed this Agreement as of the Effective Date. TOWN OF LOS ALTOS HILLS C'u-7 D C' U — Carl Cahill, City Manager Attest; eborah L. Padovan, City Clerk Approved as to Form; Steven T. Matt -M, City Attorney 1071914.1 CONSULTANT cAar?( 7'Ar%-6z'" , C'f::�V Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 14 of 14 [SIGNATURES ON FOLLOWING PAGE] Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas & Company, Inc. Page 13 of 14 SCOPE OF SERVICES Consulting Services Agreement between [EFFECTIVE DATE Town of Leos Altus Hills and Mark Thomas & Company, Inc, -- Exhibit A Page 1 of 1 MARK THOMAS P t I C P 2. ring,Y!, Pfovidiiig Engineo Surio ig and Planning Swims February 25, 2015 Richard Chiu, City Engineer Town of Los Altos 11111s 26379 Fremont Road Los Altos Hills, California 94022 Tel. (650) 941-7222 RE: LOS ALTOS HILLS — MIRANDA PATHWAY IMPROVEMENTS PROPOSAL FOR DESIGN SLRVICES Dear Mr. Chiu, 'This proposal is for work to be performed to design and prepare Construction Documents for the. Miranda Pathway Improvements, Our project understanding is based on provided project exhibits showing proposed path locations oj and layouts and site visit with Mr. John Chau on 2/18/2015. As requested, below is a summary of engineering services along with the cost proposal Tasl(01 Topographic Survey and Mapping MTCo will conduct a field topographic survey, review the title report's (if available), and perform the required drafting to produce topographic mapping to be used as the basis of the engineering design. Sufficient monuments will belocated in the field so that the record boundary lines may be shown -along the west portion of Miranda Road. Encumbrances and appurtenant rights will be plotted from title reports and/or record deeds (to be. provided .by Town if available). The deliverable to the consultant team shall be a base map drawing provided in, AutoCAD 2,009 at a scale of 1 20'. The Topographic Survey will include the following features along the proposed. pathway west of Miranda Road in Los Altos Hills, Ca:, 0 Spot elevations 4 Fences and walls Trees with diameters greater than six inches Surface -visible utilities 0 Asphalt, sidewalks., curbs and gutters 0 Gravity utilities with invert elevations Estimated Bu dget for Tas 1( 1, is $5,960.00 Task 02 Design of Pathway MTCo shall design the proposed pathway in conformance with the Town's standard detail for roadside path. Site investigation showed the need for grade cuts, retaining walls and curb ramps at certain locations. This proposal is limited to a 3 ft {maximum height) wooden type retaining wall.. Utility relocations, tree removals, vegetation trimming and AC pavement grinding may also be employed in order to clear obstructions to the proposed pathway. Tree removals shall be coordinated with the Town Engineer for approval, MTCo will prepare the Construction Documents 'together with construction cost estimates, Specifications will be included in the drawing notes, Estimated Budget for Task 2 is $14,520.00 Town of Los Altos Hills Page 2 February 25, 2015 E xclusions: 0 Encroachment Permit Plan, Application, & Coordination 0 Storm Water Treatment Plan (C,3 Storm. Water Requirements) 0 Concrete retaining wall design 0 Building Permit Coordination • Right of Entry and access negotiations and documentation • Title. Reports and back -up documentation • Aerial. Topogra0 �ihi c Mapping and Imagery Boundary Surveys, Comer Records and Records of Survey 'Plats & Legal PropejV Line Staking Landscape Desgin Construction Support & Staking • Public, Agency Fees As described in the proposal, we are requesting a total fee of $20,480.00 for this work. If you have any questions, please feel free, to call i-ne at (40.8) 453-5373 x 228 or email nifisher@mcirlcthoinas.com. This proposal provides esfinnate,d budget amounts for the above mentioned tasks. All work performed under these tasks will be billed on hourly basis not to exceed budget amount, Additional budget beyond these listed amounts is sOject to client approval. MTCo policy requires progress payments to be made upon receipt of monthly invoicing. Please provide us with written authorization for this work at your earliest convenience. Thank you again for choosing Mark Thomas .& Company, Sincerely, MARK THOMAS & COMPANY, INC. Michael Fisher, Project Manager — San Jose [SOMI -40,14 Consulting Services Agreement between [EFFECTIVE DATE] Town of Los Altos Hills and Mark Thomas & Company, Inc. --Exhibit 8 Page 1 of 1 01M of Los cillos Hills Page 2 Februajy 25, 2015 E Xclusions: 6 Encroachment Permit Plan, Application, & Coordination 0 Storm Water Treatment Plan (C,3 Storm Water Requirements) 0 Concrete retaining wall design 0 Building Permit Coordination Right of Entry and access negotiations and documentation • Title Reports and back -up documentation Aerial Topographic Mapping and Imagery Boundary Surveys, Corner Records and Records of Survey • Plats, & Legal Property Line Staking Landscape Desgih Construction Support & $taking Public Agency Fees As described in tile. proposal, we are requesting a -total &e of for this work. If you have any questions, please feel free to call me at .73 x 228 or email mfisher&-narkthomas,com, Thi (40.8) 453-53 is proposal provides estimated budget amounts for the above mentioned task.s.. All work perfoined under these tasks wi 11 be billed on hourly basis not to exceed budget amount. Additional budget beyond these, listed -amounts is -subject to client -1y invoicing, Please provide approval. MTCo policy requires progress payments to be made upon receipt of month I P payments us with written authorization for this . wo rk at your earliest convenience. Thank. you :again for choosing Mark Thomas & Company,, Sincerely, MARK THOMAS & CO. . MPANY5 INC Michael Fisher, Proi ect Manager — S an Jose PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ. 4 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, , acopy 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: The contract executed between the Consultant and the subcontractor for the performance of part of the services described in Exhibit shall include a copy of the I I provisions of California Labor Code Sections 1771, 1775,1778! 1777.5,1813, and 1815, 9 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. Uon becoming aware of a subcontractor's failure to pay the specified prevailing rate of p 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. 0-i , . 1 4. Prior to making Tina 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 nurn 1 ber, work, straight time and overtime hours worked each day and week,,. and the actual per them wages paid to each journeyman, apprentice, workerl 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 i*s 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 employees 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 [EI=ECTIVE 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 A, 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.Ex.hib.it 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 mintmurn rate of wages specified therein for the classification which most nearly corresponds to services "bit A to be performed by that described in Exhl person, The minimum rate thus furnished shall be applicable as a mini -mum 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 [EEECTIVE DATE] Town of Los Altos Hills and Mark Thomas & Company, Inc. —Exhibit C Page 3 of 3 Richard Chiu From: Richard Chiu Sent: Monday, March 30, 2015 12:35 PM To: 'D'Andrea, Lindsay' Cc: Mattas, Steven Subject: RE: Miranda Pathway Yes, consultant has verbally agreed. From: D'Andrea, Lindsay [mailto:ldandrea@meyersnave.com] Sent: Monday, March 30, 2015 9:48 AM To: Richard Chiu Cc: Mattas, Steven Subject: RE: Miranda Pathway Good morning Richard, We wanted to follow-up with you regarding this agreement. Have we agreed on final terms with the consultant? Please let me know if you need any further assistance from me. Thanks, Lindsay From: Mattas, Steven Sent: Tuesday, March 24, 2015 7:31 AM To: Richard Chiu; D'Andrea, Lindsay Subject: RE: Miranda Pathway This is fine. Steve From: Richard Chiu[mailto:rchiu@losaltoshills.ca.govl Sent: Monday, March 23, 2015 5:43 PM To: D'Andrea, Lindsay Cc: Mattas, Steven Subject: RE: Miranda Pathway Lindsay, Can we use this language? "(agents of the Town only as their work relates to the performance of work stemming from the Consultant's work)" From: D'Andrea, Lindsay[mailto:ldandrea@meyersnave.com] Sent: Tuesday, March 17, 2015 10:42 AM To: Richard Chiu Cc: Mattas, Steven Subject: RE: Miranda Pathway Hi Richard, In response to the Consultant's comments, please see below. 1. Deleting "Agents"—We do not recommend accepting the Consultant's proposed change. The section is intended to provide protection for "agents" of the Town in the performance of work stemming from the Consultant's work. It does not impose a broad indemnification obligation on the Consultant for the independent work of agents unrelated to the Consultant's work. 2. Consultant's proposed—"to the extent they arise out of language..." We are okay with accepting this proposed language. 3. Third Party Indemnity Waiver—We do not recommend accepting Consultant's proposed change. These remaining points are business points and you and Carl may waive them if you choose or you can instruct the Consultant that these are the terms that the Town will accept. Please let me know if you have any questions. Thanks, Lindsay From: Richard Chiu[ma ilto:rchiu(cblosaltoshills. ca.gov] Sent: Monday, March 16, 2015 5:29 PM To: D'Andrea, Lindsay Cc: Mattas, Steven Subject: FW: Miranda Pathway Hi Lindsay, Please review the consultant's responses below. Thanks Richard From: Michael Fisher [mailto:MFisher@markthomas.coml Sent: Monday, March 16, 2015 4:39 PM To: Richard Chiu Cc: Sasha Dansky Subject: Fwd: Miranda Pathway Richard, Please see our principal's review below (responses to your responses). Michael Fisher Cell: 408 410-5922 Begin forwarded message: From: Sasha Dansky <SDansky(i�markthomas.com> Date: March 16, 2015 at 3:42:46 PM PDT To: Michael Fisher <MFishergmarkthomas.com> Cc: Linh Giang <lgiangAmarkthomas.com>, Richard Tanaka <rtanakagmarkthomas.com> Subject: RE: Miranda Pathway My thoughts are below. This is a small contact and the town's language is not reasonable. Proposed Change: Delete"with eeunsel ^ ptabl^ to Town" Response: We are okay with accepting this change for the purposes of this contract MTCo Response: OK 2. Proposed Change: Delete "agents and „^l„„+""rs" Response: We are okay with deleting "volunteers" but we are NOT okay with deleting "agents." MTCo Response: Agents are by their nature other contractors. Agents should have their own insurance and should indemnify the City separately. MTCo is not the insurance company for the other agents. To this end, we are ok with providing indemnity for volunteers but not for agents. 3. Proposed Change: Delete: " , thp " AND insert this language: "Liability for damages to the extent actually caused by the..." Response: This may be accepted with the following modifications: "Claims and liability for damages to the extent aetually caused by the..." MTCo Response: We are okay with accepting this change for the purposes of this contract 4. Proposed Change: Insert "such liability" and delete: "losses, cests, damages,"d Response: We cannot accept this change. MTCo Response: This language gives rise to unreasonable and uninsurable, contractually assumed obligations which can lead to significant financial exposure for which MTCo may not be at fault. In order to be fair and consistent, we would propose: "losses, costs, damages, expense and liability of every kind, nature and description to extent that they arise out of, pertain to or relate to such Claims, whether directly or indirectly" 5. Proposed Change: Delete "With Fespeet to th;Fd party claims against the G l+. t the Response: We cannot accept this change. MTCo Response: Why would it be reasonable for MTCo to waive our rights against the indemnity if a third parry claim be made against MTCo and the indemnities were responsible? This is not a responsible clause. Sasha Dansky, PE (925) 938-0383 1 (925) 324-1703 cell Mark Thomas & Company From: Michael Fisher Sent: Monday, March 16, 2015 3:04 PM To: Linh Giang; Sasha Dansky; Richard Tanaka Subject: Fwd: Miranda Pathway All - Any thoughts? See below comments from town of Los altos hills. Michael Fisher Cell: 408 410-5922 Begin forwarded message: From: Richard Chiu <rchiuklosaltoshills.ca.g_oy_> Date: March 16, 2015 at 1:51:07 PM PDT To: Michael Fisher <MFishergmarkthomas.com> Cc: John Chau <ichauklosaltoshills.ca.goy> Subject: Miranda Pathway Michael, Here are our responses to your request to change the agreement language. 1. Proposed Change: Delete "+h ^ ^I aeceptable to T Response: We are okay with accepting this change for the purposes of this contract 2. Proposed Change: Delete"agents, Rd , el Rte Response: We are okay with deleting "volunteers" but we are NOT okay with deleting "agents." 3. Proposed Change: Delete: " , relate to the..." AND insert this language: "Liability for damages to the extent actually caused by the..." Response: This may be accepted with the following modifications: "Claims and liability for damages to the extent aetually caused by the..." 4. Proposed Change: Insert "such liability" and delete: "Iesses ^„S+S daMages expense and liability of eveFy kind, Ratwe and deseFiptieR that aFise eut , peFtain W, eF Felate to such Claims." Response: We cannot accept this change. 5. Proposed Change: Delete With „^++„+h;Fd paky elai s .,-++h., C.i rsarcaiic, the voRoaisra,Rc waives any -and -all rights if anY-tie-- Response: We cannot accept this change. Let me know if this works for you. Richard ,;-- �; _ .. �1,.