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Nova Partners - 2015 Agreement for 7350 Rosanna Street ImprovementsAGREEMENT FOR SERVICES (For design professional contracts over $5,000) This AGREEMENT made this 3rd day of February, 2015 between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: Nova Partners, Inc., having a principal place of business at 855 El Camino Real, Suite 307, Palo Alto, CA 94301. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on February 3, 2015 and will continue in effect through February 2, 2016 unless terminated in accordance with the provisions of Article 7 of this Agreement. ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULTANT shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT A. Specific Services CONSULTANT agrees to: perform the services as outlined in Exhibit "A" ( "Specific Provisions ") and Exhibit "B" ("Scope of Services ") within the time periods described in and Exhibit "C" ( "Milestone Schedule "). B. Method of Performing Services CONSULTANT shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT'S services. 4845- 6718- 3385v1 -1- LAW4706083 C. Employment of Assistants CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT'S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit "D ". In no event however shall the total compensation paid to CONSULTANT exceed $334,781.00 for architectural, engineering, and construction management services for the demolition. of the former count building at 7350 Rosanna Street, and related parking improvements and new dog kennel project. B. Invoices CONSULTANT shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit "D ". No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A ", Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against 4845- 6718- 3385v1 LAC104706083 -2- CONSULTANT and all other of CONSULTANT'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONSULTANT agrees to provide workers' compensation insurance for CONSULTANT'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising out of any injury, disability, or death of any of CONSULTANT'S employees. C. Indemnification of Liability, Duty to Defend 1. As to professional liability, to the . fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. 2. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, 4845 - 6718- 3385v1 LAM4706083 -�- including the loss of use thereof, and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements set forth below. Professional Liability Insurance written on a claims made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non- renewed, and not replaced with another claims -made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning. of the contract work, CONSULTANT must purchase so called `.extended reporting" or "tail" coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY'S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONSULTANT is not CITY'S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONSULTANT'S payments; • CITY will not make state or federal unemployment insurance contributions on CONSULTANT'S behalf, • CITY will not withhold state or federal income tax from payment to CONSULTANT; • CITY will not make disability insurance contributions on behalf of CONSULTANT; • CITY will not obtain workers' compensation insurance on behalf of CONSULTANT. 4845 - 6718- 3385v1 -4- LAC104706083 ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of Consultant's Business/ Death of Consultant. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any. such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit A, Subsection V.I., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. B. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONSULTANT'S failure to professionally and /or timely perform any of the services contemplated by this Agreement. 2. CONSULTANT'S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work satisfactorily completed through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this.Agreement for the tasks described on Exhibit C" which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to .CONSULTANT'S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY may have, CONSULTANT shall 4845 - 6718- 3385v1 -5- LAC104706083 reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONSULTANT for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. D. Transition after Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT's duties by any new consultant hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall use due professional care to comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ( "the Act ") in its current form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation attorneys' fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable 4845 - 6718- 3385v1 -6- LAC104706083 attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. 4845 - 6718- 3385v1 _ 7_ LAC104706083 H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A", Section V.I. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence A I I dates and times referred to in this Agreement are of the essence. L. Waiver CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONSULTANT: Inc. By: Name: d" Title: V140(ys Social Security or Taxpayer b3�% � 163 Identification Number '� 4845- 6718- 3385vl LAC104706083 CITY: qF GILR OY Name: Thomas J. HGlund Title: City Administrator Approved as to Form City Attorney 4845 - 6718- 3385v1 _9. LAC104706083 EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER CONSULTANT shall provide the services indicated on the attached Exhibit `B ", Scope of Services ( "Services "). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign M r—c. Sloc Lv" , who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to satisfactorily complete the Services required herein. H. NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written "Notice to Proceed ", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e -mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Rick Smelser shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided in the Section V.I. ( "Notices ") of this Exhibit "A ". B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has satisfactorily completed all of the Services, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has satisfactorily completed all of the Services and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not satisfactorily completed all of such Services, CITY shall so inform CONSULTANT within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C ". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. 4845 - 6718- 3385v1 LAD04706083 Direct expenses are charges and fees not included in Exhibit "B ". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. CONSULTANT'S SERVICES TO BE APPROVED BY A REGISTERED PROFESSIONAL ENGINEER All civil (including structural and geotechnical) engineering plans, calculations, specifications and reports shall be prepared by, or under the responsible charge of, a licensed civil engineer and shall include his or her name and license number. Interim documents shall include a notation as to the intended purpose of the document, such as "preliminary" or "for review only." All civil engineering plans and specifications that are permitted or that are to be released for construction shall bear the signature and seal of the licensee and the date of signing and sealing or stamping. All final civil engineering calculations and reports shall bear the signature and seal or stamp of the licensee, and the date of signing and sealing or stamping. B. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT'S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well - organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. C. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. The CITY'S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with 4845- 6718- 3385v1 -2- LAC104706083 applicable law for all damages to CITY caused by CONSULTANT'S negligent performance of any of the services furnished under this Agreement. D. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall . have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT,. all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. E. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT'S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. F. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. G. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.E of this Exhibit "A ". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. 4845 - 6718- 3385v1 _3 _ LAC104706083 H. NO THIRD PARTY BENEFICIARY This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. NOTICES. Notices are to be sent as follows: CITY: Rick Smelser, City Engineer /PW Director City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: David Marks Nova Partners 85.5 El Camino Real, Ste. 307 Palo Alto, CA 94301 FEDERAL FUNDING REQUIREMENTS. ❑ If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.J. apply. ® If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.J. do not apply. DBE Program CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City- adopted Disadvantaged Business Enterprise programs. . 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. Covenant against Contingent Fees The CONSULTANT warrants that he /she has not employed or retained any company or person, other than a bona fide employee working for the CONSULTANT, to solicit or secure this Agreement, and that he /she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or 4845 - 6718- 3385v1 -4- LAC104706083 consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 4845- 6718-3385v1 _ 5 LAC104706083 EXHIBIT "B" SCOPE OF SERVICES 4845- 67183385v1 LAC104706083 NOVAPARTNERS INCORPORATED January 7, 2015 Rick Smelser, P.E. City Engineer /Director of Public Works City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Re: 7350 Rosanna Street Gilroy, CA 95020 Subj: Project/Design /Construction Management Services Nova Construction Management Services Agreement Dear Mr. Smelser: Nova Partners is pleased to submit the following service request for the following projects: 7350 Rosanna Street Parking Improvements and New Comoration Yard Doiz Kennel Nova Partners will provide Architectural / Civil Engineering and Project/Construction Management Services for the 7350 Rosanna Street Parking Improvements Project. The project also includes the demolition of the existing building recently purchased and relocating the existing dog kennel located at 7350 Rosanna Street and reconstructing a new Dog Kennel Building at the Gilroy Corporation Yard located at 613 Old Gilroy Street. Demolition of the existing building at 7350 Rosanna Street has been requested by the City of Gilroy to provide for a new Parking Lot Facility. The Scope of Work for this proposal will include the following: 1. Obtain the services of a Hazardous Material Consultant to provide a hazardous material survey to determine the extent of abatement required prior to the demolition of the buildings to be performed by others. 2. Obtain the services of a Geotechnical Consultant to perform soil- boring samples to determine the classification of the existing soils around the perimeter of the building prior to future soil disturbance and infill during building demolition and site grading performed by others. 3. Obtain the services of a Civil Engineering firm to provide a complete design package including demolition of the existing buildings, design of new underground utilities, site grading, and new site lighting as required for obtaining a building permit. 4. Obtain the services of an Architect to provide a complete design package including new underground utilities, site preparation and MEP design for a new Dog Kennel Building at 613 Old Gilroy Street as required for obtaining a building permit. Construction Project Management and Real Estate Development Services 855 El Camino Real, Suite 307 Palo Alto, CA 94301 tel 650.324.5324 fax 650.324.5327 www.novapartners.com 5. Prepare all bidding documents, Staff Reports along with conducting the bidding process to obtain the services of General Contractor to perform the demolition and site improvements to provide a new parking facility and Dog Kennel Building. Work with City staff to issue and execute a formal contract agreement between the City and General Contractor. 6. Provide Project/Construction Management oversight of all design and construction activities from the early stages of design through project completion. Sincerely, HAU gwu4 • Marc Slocum Nova Partners, Inc. 2 EXHIBIT "C" MILESTONE SCHEDULE 4845 - 6718- 3385v1 LAC104706083 NOVAPARTNERS INCORPORATED January 7, 2015 Rick Smelser, P.E. City Engineer /Director of Public Works City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Re: 7350 Rosanna Street Gilroy, CA 95020 Subj: Project/Design /Construction Management Services Nova Construction Management Services Agreement 7350 ROSANNA STREET PARKING IMPROVEMENTS AND NEW CORPORATION YARD DOG KENNEL 1. Design/Bidding/Permitting Oversight December 2014 - March 2015 - We have allotted approximately 24 hours a week to cover the Design Management services that are currently scheduled to occur during the periods from December 2014 through March 2015. This is an estimate of time required to ensure we stay current with the needs of the City. We will only bill for work performed on this phase of the project and will not exceed this value without prior authorization by the City. II. Construction Management April 2015 — September 2015 - We have allotted approximately 32 hours a week to provide Construction Management oversight services during the duration of this phase of the project. We feel this is a conservative amount of time to oversee this project at this time. This is an estimate of time required to ensure we stay current with the needs of the City. We will only bill for work performed on this phase of the project and will not exceed this value without prior authorization by the City. III. Project Closeout October 2015 — We have allotted approximately 12 hours a week to provide Project Closeout Services to assemble the closeout package including review of the As- Built drawings, assembling warranty packages, assembling submittal package of equipment and materials furnished including maintenance guides, preparing a contact information list of all subcontractors. Finalize all change orders for final billing. Nova Partners requests an increase to our current On -Call Agreement in the Not to Exceed amount of Three Hundred Thirty Four Thousand Seven Hundred Eighty One Dollars ($334,781.00) as indicated above. Thank you for the opportunity to assist you on this project and look forward to its successful completion. Please do not hesitate to contact me at (650) 333 -4988 with any questions you may have regarding the above - mentioned items. Sincerely, M446 5&160 . Construction Project Management and Real Estate Development Services 855 El Camino Real, Suite 307 Palo Alto, CA 94301 tel 650.324.5324 fax 650.324.5327 www.novapartners.com Marc Slocum Nova Partners, Inc. EXHIBIT "D" PAYMENT SCHEDULE 4845 - 6718- 3385v1 LAC104706083 NOVAPARTNERS INCORPORATED January 7, 2015 Rick Smelser, P.E. City Engineer /Director of Public Works City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Re: 7350 Rosanna Street Gilroy, CA 95020 Subj: Project/Design /Construction Management Services Nova Construction Management Services Agreement 7350 ROSANNA STREET PARKING IMPROVEMENTS & NEW CORPORATION YARD DOG KENNEL Scope of Work Duration(wks ) Hrs /wk Total Hours Rate Total Task 1 - Preconstruction Services (December 2014 -March 2015) PM 15 24 360 1 165 59,400 Subtotal Task 1 59,400 Task 2 - Construction Services (April 2015 - Sept 2015) PM 28 32 896 165 147,840 Subtotal Task 2 147,840 Task 3 - Post Construction /Closeout (October 2015) PM 3 12 36 165 5,940 Subtotal Task 3 5,940 Task 4 - Consultants Hanna Brunetti Civil Engineers (Allowance) Consultant Lump Sum 35,000 Monte Deignan & Associate Consultant Lump Sum 8,845 PCEI Geotechnical Engineers Consultant Lump Sum 10,770 Architect Incl. MEP Design (Allowance) Consultant Lump Sum 15,000 Testing and Inspection Consultant T &M 5000 Markus 1 7,461 Subtotal Task 4 82,076 Estimated Reimbursables 10,000 Project Contin enc (10 %) 29,525 TOTAL BASIC SERVICES $ 334,78 Construction Project Management and Real Estate Development Services 855 El Camino Real, Suite 307 Palo Alto, CA 94301 tel 650.324.5324 fax 650.324.5327 www.novapartners.com CERTIFICATE OF LIABILITY INSURANCE DATE(MANDD/YYYY) 7/24/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE' A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER. AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to certificate, holder in lieu of.such endorsement(s). PRODUCER Arthur J. Gallagher & Co. Insurance Brokers of CA, Inc. LIC #0726293 1255 Battery Street, Suite 450 San Francisco CA 94111 M£:- PHONE FAX No : WL: ADDREWO AFFORDING COVERAGE NAIC A INSURER A James River Insurance Compar�j 16/2015 EACROCCURRENCE INSURED INSURER a -: 550,000 INSURER C S10 ODO Nova Partners, Inc. 855 El Camino Real #307 Palo Alto, CA 94301 INSURER 0 :- GENERAL AGGREGATE " INSURER E: ' PRODUCTS - COMPIOP AGG INSURER F : - S COVERAGES. CERTIFICATE NUMBER: 862221824 REVISION. NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED -BELOW HAVE BEEN ISSUED TO THE INSURED'NAMED ABOVE FOR THE:POUCY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN: REDUCED BY PAID CLAIMS. ILMR TYPEOFINSURANC£ ADOL %a '- " - .POLICYN MBER POLICYEFf . IMMIDDIYYYYi POLICY.EXP (MMMDNYM LIMITS A , GEWERALLUIBILITY X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE _ OCCUR Y Y 060242447 1612014 ` 16/2015 EACROCCURRENCE $1.000,000 PREMISES n 550,000 MED EXP one ) S10 ODO PERSONAL & ADV INJURY $1.000,000 GENERAL AGGREGATE $2,000;000 GEWL AGGREGATE LIMIT APPLIES PER: POLICY X _ PRO- LOC -IFCT PRODUCTS - COMPIOP AGG $2,000000 S A AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED HIRED AUTOS X AUTOS Y Y 000242447 16/2014 16/2015 1: 000 000 BODILY'INJURY (Per persm) S' BODILY INJURY (Per accident) $ PROPERTY.OAAAAGE Per 5 A X UMBRELLA UAB EXCESSLIAB X OCCUR CLAIMS -MADE 000243887 16 /2014 16 /2015 EACH OCCURRENCE $4;000;000.. X AGGREGATE- _ $4,000,000. DED RETENTION$ . B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY - ANY PROPRIETORIPARTNERIEXECUTNE YIN OFFICERIMEMBEREXCLUDED? E (Mandatory In NH) H s describe Under DESCRIPTION OF OPERATIONS below NIA 16649909 1/2013 1 /2014 X WCSTATUF OTH= - E.L. EACH:ACC IDENT .. _ $1.000,000 E.L. DISEASE r EA EMPLO. $1,000,000 . E.L.'. DISEASE : - POLICY LIMIT _ _ s1,OD0,00D . C Professional Llab. PGIARK0323700 /24 /2013 /24/2014 Ea. Ciaim 4000.000 Ea. Aggregate 2;000.000 'DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space is required) City of Gilroy; its officers and employees are named as Additional Insureds as respects to General Liability as required by written contract only as pertains to Insured's operations. City of GilroyCommunity Development Department 7351 Rosanna Street Gilroy CA 95020 USA AL.UKU zo tZUTUIUb) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE D_ ELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. REMD REPRESENTATIVE The ACORD name and logo are registered marks of ACORD TION. All rights reserved. POLICY NUMBER: 00024244 -7 COMMERCIAL GENERAL LIABILITY CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -­ OWNERS, LESSEES OR CONTRACTORS -COMPLETED OPER- 4TIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Location And Description Of Completed Opera - tions City of Gilroy, its officers, elected or appointed officials, employees, and agents All operations of the named insured 7351 Rosanna Street Gilroy, CA 95020 mtormation requireo to compiete mis z)cnecuie, IT not snown aDove, wiu De snown In the Ueciarations. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organiza- tions) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location desig- nated and described in the schedule of this endorse- ment performed for that additional. insured and included in the "products- completed operations hazard ". CG 20 37 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Policy No. 000242447 ADDITIONAL INSURED AS REQUIRED BY WRITTEN CONTRACT This endorsement modifies insurance provided under the following: ALL COVERAGE PARTS SECTION 11— Who Is An Insured is amended to include any person or organization you are required to include as an additional insured on this policy by written contract or written agreement in effect during this policy period and executed prior to the "occurrence" of the "bodily injury" or "property damage." The insurance provided to the Additional Insured under this endorsement is limited as follows: 1. The person or organization is only an additional.insured with respect to liability arising solely out of "your work" or "your product" which is imputed to the Additional Insured. 2: In the event that the Limits of Insurance provided by this policy exceed the Limits of Insurance required by the written contract or written agreement, the insurance provided by this endorsement shall be limited to the Limits of Insurance required by the written contract or written agreement. This endorsement shall not increase the Limits of Insurance stated in the Declarations. 3. This insurance does not apply to "bodily injury" or "property damage" arising out of "your work" or "your product" included in the "products — completed operations hazard" unless you are required to provide such coverage by written contract or written agreement but only for the period of time required by the written contract or written agreement and only for "bodily injury" or "property damage" that occurs during the policy period arising out of "your work" or "your product". 4. Any coverage provided by this endorsement to an Additional Insured shall be excess over any other valid and collectible insurance available to the Additional Insured whether primary, excess, contingent or on any other basis. 5. Where no coverage under this policy shall apply for the Named Insured, no. coverage or defense shall be afforded to the Additional Insured. 6. This insurance does not apply to "bodily injury" or "property damage" arising out of the sole negligence of the Additional Insured. ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED. AP2009US 04 -10 Page 1 of 1 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Policy No. 000242447 HIRED AUTO LIABILITY This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE SCHEDULE Coverage Limit of Insurance Additional Premium Hired Auto Liability $ 1 $1,000,000 1 $ 1 Included The insurance provided under SECTION I, - COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, applies to "bodily injury" or "property damage" arising out of the maintenance or use of a "hired auto" by you or your "employees" in the course of your business. The Limit of Insurance shown in the Schedule.above is the most we will pay for those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" arising out of the use of a "hired auto" by you or your "employees" in the course of your business. The Limits of Insurance shown in the Schedule above are included within and are..not in addition to the Limits of Insurance shown in the Declarations. Nothing in this endorsement shall increase the Limits of Insurance shown in the Declarations. A. Solely with respect to HIRED AUTO LIABILITY: SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions, is amended by adding the following exclusions: This insurance does not apply to: "Bodily injury" or "property damage" arising out of any: (1) Uninsured or Underinsured Motorist law; or (2) No Fault Law or similar act or law. "Property damage" to: (1) Property owned or being transported by, or rented or loaned to the insured; or (2) Property in the care, custody or control of the insured. B. Solely'with respect to HIRED AUTO LIABILITY: SECTION II — WHO IS AN INSURED, is replaced by the following: Each of the following is an insured under this endorsement to the extent set forth below: a. You; b. Any other person using a "hired auto" with your permission; and c. Any other, person or organization, but only for their liability because of acts or omissions of an insured under a. or b. above. None of the following is an insured: (1) Any person engaged in the business of his or her employer for "bodily injury" to any co- "employee" of such person injured in the course of employment, or to the spouse, child, parent, brother or sister of that co-"employee" as a consequence of such "bodily injury", or for any obligation to share damages with or repay someone else who must pay damages because of the injury; (2) Any partner or "executive officer" for any "auto" owned by such partner or officer or a member of his or her household; (3) Any person while employed in or otherwise engaged in duties in connection with an "auto business ", other than an "auto business" you operate; AP2126US 01 -08 Page 1 of 2 (4) The owner or lessee (of whom you are a sub lessee) of a "hired auto" or any agent or "employee" of any such owner or lessee; (5) Any person or organization for the conduct of any current or past partnership or joint venture that is not shown as a Named Insured in the Declarations. C. Solely with respect to HIRED AUTO LIABILITY: SECTION V — DEFINITIONS is amended by adding the following: 1. "Auto Business" means the business or occupation of selling, repairing, servicing, storing or parking "autos ". 2. "Hired Auto" means any "auto" you lease, hire or borrow. This does not include any "auto" you lease, hire or borrow from any of your "employees" or members of their households, or from any partner or "executive officer" of yours. ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED. AP2126US 01 -08 Page 2 of 2 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CARFEULLY. Policy No. 000242447 WAIVER OF SUBROGATION AS REQUIRED BY CONTRACT This endorsement modifies insurance provided under the following: ALL COVERAGE PARTS The Company agrees to waive any right of recovery against any person or organization, as required by written contract, because of payments we make for injury or damage which is limited to liability directly caused by "your work" which is imputed.to such person or organization. ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED. AP5004US 11 -06 Page 1 of 1 AGENCY CUSTOMER ID: LOC #: ADDITIONAL REMARKS SCHEDULE Page Of AGENCY NAMED WSURED Nova Partners , POLICY NUMBER CARRIER NAIC CODE EFFECTIVE DATE: 5/1612014 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: - FORM TITLE: GENERAL LIABILITY Additional Insured- Owner, Leesees or Contractors- Scheduled Person or Oganization per form: CG2010 07-04 ' Additional insured - Owners, Leesees or Contractors- Completed Operations perform: CG2037 07 -04 *Waiver of Subrogation as required by written contract per forth: AP5004US 11 -06 AUTOMOBILE LIABILITY: • Additional Insured when required by written contract per fortes: AP2009US 04-10 & AP2126US 01 -08 • Waiver of Subrogation as required by written contract per forth: AP5004US 11 -06 er•nen n� r�nnmm� © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD