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HomeMy WebLinkAboutMark Thomas (5)CONSULTING SERVICES AGREEMENT BETWEEN THE TOWN OF LOS ALTOS HILLS AND MARK THOMAS THIS AGREEMENT for consulting services is made by and between the Town of Los Altos Hills ("Town") and Mark Thomas ("Consultant") (together sometimes referred to as the "Parties") as of � k 1- �0, 2020 (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 December 31, 2020, 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 a manner consistent with the level of care and skill ordinarily exercised by other professionals providing the same services in the San Francisco Bay Area. 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. 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 Requirements. 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 $48,600 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 compensation, the Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 1 of 14 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. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas 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 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 Hourly Fees. 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. -- .. �. 2.7 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. 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 forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 3 of 14 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; Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 4 of 14 The Insurance shall cover on an occurrence or an accident basis, and not on a claims -made basis. 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 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. 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. 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. 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 Page 5 of 14 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A -:VII. Should any CONSULTANT'S insurers' ratings change during the middle of a policy year, CONSULTANT has until the policy renewal date to remedy the situation. 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 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 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 Wastinq 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. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas 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 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 ■ Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. 5.1 Separate Professional Liability (PL) Indemnity. As respect to the performance of professional services, Consultant agrees to indemnify and hold harmless Town, its officers, employees, authorized agents/volunteers (collectively, the "Town Indemnitees"), from and against any damages, losses, liabilities, judgments, settlements, expenses, and costs (including reasonable and necessary attorneys' fees, costs and expenses) to the extent caused by Consultant's negligent acts, errors or omissions or willful misconduct in the performance of services under this Agreement and anyone for whom Consultant is legally liable. Consultant has no obligation to pay for any of Town Indemnitees defense related cost prior to a final determination of liability, or to pay any amount that exceeds Consultant's finally determined percentage of liability based upon the comparative fault of Consultant. 5.2 Separate Other than Professional Liability (OPL) Indemnity. As respect to its operations, other than the performance of professional services, Consultant agrees to indemnify, hold harmless and defend Town with counsel approved by Town, the Town Indemnitees, from and against any damages, liabilities, judgments, settlements, costs, claims, demands, actions, suits, losses, and expenses (including reasonable and necessary attorneys' fees, costs and expenses) arising out of the death or bodily injury to any person or destruction or damage to any property, to the extent caused by Consultant's negligent acts, errors or omissions or willful misconduct in the performance of services under this Agreement and anyone for whom Consultant is legally liable. 5.3 Common PL & OPL Indemnity Provisions. Consultant's obligations under this Section 5 shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises from the negligence or willful misconduct of the Town or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law, It is understood that the duty of Consultant to indemnify and hold harmless under Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 7 of 14 Section 5.2 includes the duty to defend as set forth in Section 2778 of the California Civil Code; however, in no event shall the cost to defend charged to Consultant exceed Consultant's proportionate percentage of fault. Acceptance by Town of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. 5.4 Insurance Not in Place of Indemnity. Acceptance by Town of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. 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 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 Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 8 of 14 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 Equal 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. 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 thirty (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 Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 9 of 14 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 1.1. 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 Subcontractinq. 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: 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 costs 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. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 10 of 14 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 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 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. 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. Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 11 of 14 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 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 John Chau ("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: Rob Himes Mark Thomas 20863 Stevens Creek Boulevard, Suite 100 Cupertino, CA 95014 Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 12 of 14 Any written notice to Town shall be sent to: Nichol Bowersox Town of Los Altos Hills 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 report/design preparation. The stamp/seal 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, and C 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 Page 13 of 14 The Parties have executed this Agreement as of the Effective Date. TOWN OF LOS ALTOS HILLS L."J'ac 01 �N% Carl Cahill, City Manager Attest: Deborah L. Padovan, City Clerk Approved as to Form: Steven T, Mattas, Town Attorney 1071914.1 CONSULTANT Benjamin Porter, Associate Principal Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 14 of 14 The Parties have executed this Agreement as of the Effective Date. TOWN OF LOS ALTOS HILLS Carl Cahill, City Manager Attest: Deborah L. Padovan, City Clerk Approved as to Form: r - Steven T. Mattas, Town Attorney 1071914.1 CONSULTANT 7: ��- - 7 P, v- e�— Benjamin Porter, Associate Principal Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas Page 14 of 14 EXHIBIT A SCOPE OF SERVICES Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas --Exhibit A Page 1 of 1 MARK THOMAS Ms. Nichol Bowersox, Director of Public Works June 25, 2020 Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 RE: Proposal for construction inspection services - 2020 Sewer Rehab Project Dear Ms. Bowersox, Mark Thomas is pleased to submit our proposal for the subject inspection services. We have reviewed the project plans and specifications. The specification indicates 50 working days for this project. Based on the project being undertaken, it is our understanding that you may not need to have inspectors on the job site full-time for the duration of 50 working days. It is our opinion that if the Town awards both inspection contract to Mark Thomas, we believe you will not need two full time inspectors. We are flexible and will work with you to provide the appropriate level of inspectors. We are proposing Mr. Bennett for the inspection services. Please refer to the attached resume. Our hourly billing rate for Mr. Bennett is $135/hour, which includes his prevailing wage salary as an inspector, his additional prevailing benefits, DIP training fund of $1.13/hour, and an apprentice requirement of one hour for every five inspector hours. For budgeting purposes, we are providing you an estimate for a full-time staff for 45 working days at a total cost of $48,600. If you have any questions, please contact me. Sincerely MARK THOMAS Richard K. Tanaka Senior Principal Enc: Dale Bennett Resume �`�'t ;:y' 1 _E ,,._, . ;,.,+.; •, a^. 5 VU ."A X611 _�.`.� <141 h.. hl5 Ad c. I. -F! MAFKTHOMAS.COh5 RESUME PROJECT ROLE Sewer Construction Inspector EDUCATION USAF Heavy Equipment, Fuel Equipment Operations, Haz Mat, Emergency Response and First Responder REGISTRATIONS CWEA Grade 2 Confined Space Entry T8CCR 5156 PACP Pipeline Assessment Certification ANTICIPATED PROJECT HOURS 45 hour CONSTRUCTION INSPECrIO;v - 2024 SEWER REHAB To,-�,n of Los .o,ltos Hills DALE BENNETT Dale Bennett has more than 30 years of experience in providing construction inspections for storm and sewer rehabilitation and new construction, sewer maintenance tasks for routine monthly sewer maintenance, operations, cleaning, inspection, and responding to sanitary sewer spills and emergency including performing CCTV review and condition assessments. Dale works directly with the lead engineer to ensure that the contractor is complying with project plans and specifications CPS&E), permit requirements which may include local public work agencies, building permit's requirements, Caltrans, Regional Board, Fish & Game, and other regulatory agencies. Dale re cognizes the importance of maintaining project safety in compliance with Cal OSHA regulations, reports safety violations and take corrective actions to mitigate any safety violations. He has knowledge of various methods, techniques, and materials used in sewer construction including pipe bursting, directional drilling, CIPP, and of course, the traditional open cut installation. From 2013 to Current - Sewer Inspector at Mark Thomas & Company • Lead inspector for CuSD Tantau Sewer Rehabilitation Project. Project involved open cut trench installation of 1,800 LF of 8". sewer main, 280 LF of sewer main replacement in existing casing under Route 280, and 2,500 LF of pipe bursting from 8" to 12". • Lead inspector for Prospect Pump Station Rehabilitation, total cost $2.2 million which included a rehabilitation of 3 pumps 01,300 gpm), 160 LF of open cut sewer replacement, 160 LF of directional drilling of 6" main and two new Predl Plastic Manhole at a depth of 26 feet. • Lead inspector for Apple Campus 2 project, which included nearly 4,000 feet of 27" sewer main. • Performed spot repair inspection for sewer main rehabilitation as part of the City of Cupertino AC Overlay Project • Lead inspector for Fiesta Lane Sewer Rehabilitation which replaced 3,200 LF of 8" sewer main with over 20 lateral connections. • Lead inspector for Burbank Sanitary District First Year CIP which included 840 LF of pipe bursting and 35 spot repairs. From 2009 to 2013 - Maintenance Supervisor for City of San Jose • Responsible for 5 crews • 2,200 miles of sewer mains • SSO response and cleanup • Storm emergency responder From 2003 to 2009 - Senior Maintenance Worker for City of San Jose • Sewer mains and manhole repairs From 1983 to 2003 - Heavy Equipment Operator for City of San Jose • Treatment Plant • Sewer and Storm Repairs • Street Repairs IAS AIT(� I� TOWN OF LOS ALTOS HILLS �, •y REQUEST FOR PROPOSALS FOR CONSTRUCTION CALIFORNIA INSPECTION SERVICES FOR THE 2020 SEWER REPAIR AND REPLACEMENT CIP A. OBJECTIVE The Town of Los Altos Hills is seeking construction inspection services for the 2020 Sewer Repair and Replacement CIP. B. SCOPE OF SERVICES Services will include, but not be limited to the following: • Attend pre -construction meetings. • Provide field inspections of work in progress to ensure compliance with plans and specifications, and approved submittals. • Take digital photos of each construction phase prior to and throughout the duration of a project. • Serve as inspector of record (create redline on as -built drawings) for work inspected. • Prepare and distribute written daily inspection reports via e-mail and/or hardcopy. • Coordinate inspections with utility companies and residents as necessary. • Coordinate special testing and inspection work as required. • Report instances of apparent non-compliance with contract plans, specifications to Sewer CIP Project Manager for resolution. The City will arrange with one testing company and/or a certified testing lab to ensure construction method and material compliance with the project documents. The project inspector will be responsible for overseeing the testing. Testing will include, but not be limited to: 1. Soil compaction testing 2. Asphalt concrete testing 3. Concrete slump and strength testing C. INSURANCE REQUIREMENTS The consultant will be required to maintain insurance coverage for Personal injury and Worker's Compensation, with the Town of Los Altos Hills named as "additional Insured." The Town will also require Professional Errors and Omissions insurance acceptable to the City attorney. D. SUBMISSION REQUIREMENTS Proposals must be received by 2:00 PM on June 25, 2020. Consultant shall submit one signed originally proposal and two copies in a sealed package or envelope marked "Construction Inspection Services for the 2020 Sewer Repair and Replacement CIP Proposal". Proposals may be either mailed or delivered in person to: Nichol Bowersox, Director of Public Works/City Engineer Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 A PDF of the proposal must also be emailed to: nbowersox2closaltoshills.ca.,gov. The PDF does not constitute a submission alone. The original must be received as noted above. E. PROPOSAL REQUIREMENTS 1. Understanding Scope of Services Consultant shall provide a clear and concise response to the Scope of Service requirements set forth. This response should present a demonstration of the firm's understanding of the project and their suggested approach to the project. 2. Qualifications Identify the key personnel involved in this project. Also state their experience with similar projects. 3. Cost Proposal a. Provide a detail of fees to be charged, including hourly rates and expected payment schedule. b. The proposal should detail the costs by general category of work. c. Provide an estimated total amount for the scope of services required. d. Details costs of any additional charges that are not included in the basis fee. F. SELECTION PROCESS Proposals will be reviewed by a variety of Town staff. A recommendation will be made by the Public Works Director to the City Manager or City Council, if necessary. Final selection will not necessarily be based on cost, but additionally on meeting the requirements of the Town, and on a determination of the Consultant's understanding of our issues and their ability to meet our needs. The Town will verify the qualifications and references of the Consultant to whom the award is contemplated. G. CONTRACT AWARD The selection of any proposal does not imply acceptance by the Town of all terms of the proposal. If a satisfactory contract cannot be negotiated in a reasonable amount of time, the Town may terminate negotiations with the selected Consultant and begin contract negotiations with the next highest ranked Consultant. CONTACT INFORMATION For any questions for further information, please contact Kaho Kong, Senior Engineer at kkong�losaltoshills.ca.gov or by phone at (650) 947-2511. EXHIBIT B COMPENSATION SCHEDULE Consulting Services Agreement between Town of Los Altos Hills and Mark Thomas --Exhibit B Page 1 of 1 MARK THOMAS Ms. Nichol Bowersox, Director of Public Works June 25, 2020 Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 RE: Proposal for construction inspection services - 2020 Sewer Rehab Project Dear Ms. Bowersox, Mark Thomas is pleased to submit our proposal for the subject inspection services. We have reviewed the project plans and specifications. The specification indicates 50 working days for this project. Based on the project being undertaken, it is our understanding that you may not need to have inspectors on the job site full-time for the duration of 50 working days. It is our opinion that if the Town awards both inspection contract to Mark Thomas, we believe you will not need two full time inspectors. We are flexible and will work with you to provide the appropriate level of inspectors. We are proposing Mr. Bennett for the inspection services. Please refer to the attached resume. Our hourly billing rate for Mr. Bennett is $135/hour, which includes his prevailing wage salary as an inspector, his additional prevailing benefits, DIP training fund of $1.13/hour, and an apprentice requirement of one hour for every five inspector hours. For budgeting purposes, we are providing you an estimate for a full-time staff for 45 working days at a total cost of $48,600. If you have any questions, please contact me. Sincerely MARK THOMAS Richard K. Tanaka Senior Principal Enc: Dale Bennett Resume .:.lt 41 2.. _4 '.' . 1-4k4'\ h11RIiTHo h5A5.COh1 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 Town of Los Altos Hills and Mark Thomas --Exhibit D 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 diem 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 A shall include a copy of the provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815. The Consultant shall monitor payment of the specified general prevailing rate of per diem wages by the subcontractor by periodic review of the subcontractor's certified payroll records. 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. 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 diem 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 diem 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: 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 Town of Los Altos Hills and Mark Thomas --Exhibit D 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 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 Town of Los Altos Hills and Mark Thomas --Exhibit D Page 3 of 3