IMPORTANT NOTICE
This is a hybrid meeting and will be held in-person at the Town Council Chambers at 110 E. Main Street and virtually through Zoom Webinar (log-in information provided below). Members of the public may provide public comments for agenda items in-person or virtually through the Zoom Webinar by following the instructions listed below. The live stream of the meeting may be viewed on television and/or online at www.LosGatosCA.gov/TownYouTube.
HOW TO PARTICIPATE
The public is welcome to provide oral comments in real-time during the meeting in three ways:
Zoom Webinar (Online): Join from a PC, Mac, iPad, iPhone or Android device. Please use this URL to join: https://losgatoscagov.zoom.us/j/82232739012?pwd=1zlbRu029_33oyBb9l3AyTZQ7D2MEQ.kN8FbuOklNsmz-Jj Passcode: 793054 You can also type in 822 3273 9012 in the “Join a Meeting” page on the Zoom website at and use passcode 793054.
When the Mayor announces the item for which you wish to speak, click the “raise hand” feature in Zoom. If you are participating by phone on the Zoom app, press *9 on your telephone keypad to raise your hand.
Telephone: Please dial (877) 336-1839 for US Toll-free or (636) 651-0008 for US Toll. (Conference code: 1052180)
If you are participating by calling in, press #2 on your telephone keypad to raise your hand.
In-Person: Please complete a “speaker’s card” located on the back of the chamber benches and return it to the Town Clerk before the meeting or when the Mayor announces the item for which you wish to speak.
NOTES: (1) Comments will be limited to three (3) minutes or less at the Mayor’s discretion. (2) If you are unable to participate in real-time, you may email to [email protected] the subject line “Public Comment Item #__ ” (insert the item number relevant to your comment). All comments received will become part of the record.
(3) Deadlines to submit written comments are:
11:00 a.m. the Thursday before the Council meeting for inclusion in the agenda packet. 11:00 a.m. the Monday before the Council meeting for inclusion in an addendum. 11:00 a.m. on the day of the Council meeting for inclusion in a desk item. (4) Persons wishing to make an audio/visual presentation must submit the presentation electronically to [email protected] no later than 3:00 p.m. on the day of the Council meeting.
TOWN OF LOS GATOS
COUNCIL MEETING AGENDA *AMENDED
JUNE 18, 2024
110 EAST MAIN STREET AND TELECONFERENCE
TOWN COUNCIL CHAMBERS
7:00 PM
Mary Badame, Mayor
Matthew Hudes, Vice Mayor
Rob Moore, Council Member
Rob Rennie, Council Member
Maria Ristow, Council Member
CALL MEETING TO ORDER
ROLL CALL
APPROVE REMOTE PARTICIPATION (This item is listed on the agenda in the event there is an emergency circumstance requiring a Council Member to participate remotely under AB 2449 (Government Code 54953)).
PLEDGE OF ALLEGIANCE
PRESENTATIONS
i. Parks and Open Space Month Proclamation
ii. Commendation for Outgoing Town Manager
CONSENT ITEMS (Items appearing on the Consent Items are considered routine Town business and may be approved by one motion. Any member of the Council may request to have an item removed from the Consent Items for comment and action. Members of the public may provide input on any or multiple Consent Item(s) when the Mayor asks for public comments on the Consent Items. If you wish to comment, please follow the Participation Instructions contained on Page 1 of this agenda.
If an item is removed, the Mayor has the sole discretion to determine when the item will be heard.)
1. Approve Closed Session Minutes of the June 4, 2024 Town Council Meeting.
2. Approve Minutes of the June 4, 2024 Town Council Meeting.
3. Receive the Monthly Financial and Investment Report for April 2024.
4. Authorize the Town Manager to Execute a Second Amendment to Agreement for Services with H. A. Bowen Electric Inc. to Extend the Term through June 30, 2026 and Increase the Compensation Amount by $48,000 for a Total Agreement Amount Not to Exceed $145,335.
5. Authorize the Town Manager to Execute a Lease Agreement with the Friends of the Los Gatos Library for the Property Located at 108 E. Main St.
6. Shannon Road Pedestrian and Bikeways Improvement Project (CIP No. 813-0218):
a. Award and Authorize the Town Manager to Execute a Contract with Sposeto Engineering Inc. in an Amount Not to Exceed $2,115,930.50; b. Authorize the Town Manager to Execute Change Orders in an Amount Not to Exceed Ten Percent (10%) of the Contract Award Amount ($211,593); c. Approve the Project Construction Plans with Addenda as Required by Government Code 830.6 – Design Immunity;
d. Authorize an Expenditure Budget Increase From Storm Drain Basin #1 Funds in an Amount of $447,717; and
e. Authorize an Expenditure Budget Decrease of Underground Utility Funds in an Amount of $48,003.
7. Stormwater Network Mapping Services (CIP No. 816-0425):
a. Award and Authorize the Town Manager to Execute a Contract with NCE in an Amount Not to Exceed $380,700;
b. Authorize the Town Manager to Execute Change Orders in an Amount Not to Exceed Ten Percent (10%) of the Contract Award Amount ($38,070).
8. Authorize the Town Manager to Execute a Revised Master Service Agreement with Flock Safety Group Inc. for Stationary Automated License Plate Readers (ALPR) in the Amount $255,000 for a Sixty-Month Term and Authorize the Town Manager to Enter into Amendments as Necessary for up to an Additional $40,000 for a Total Agreement Not to Exceed $295,000 Over the Agreement Term.
9. Authorize the Town Manager to Execute a Second Amendment to the Agreement for Services with Pro-Sweep, Inc. for Power-Washing Services to Extend the Term Through December 31, 2024, and Increase the Compensation by $32,760 for a Total Amount not to Exceed $410,539.
10. Approve and Authorize the Town Manager to Execute a Side Letter of Agreement Between the Town of Los Gatos and the Police Officers Association (POA) to Modify the Vacation Accrual Cap through June 30, 2025.
11. Highway 17 Bicycle and Pedestrian Overcrossing (Project No. 818-0803):
a. Authorize the Town Manager to Execute a Second Amendment to the Agreement for Consultant Services with BKF Engineers Inc. for Additional Environmental Consulting Services in the amount of $39,000 for a Total Agreement Not to Exceed $3,087,735; and
b. Authorize an Expenditure Budget Adjustment in the Amount of $34,822 to Authorize the Allocation to the Previously Received Transportation Development Act Article 3 Grant Receipt.
12. Approve Change to Existing Purchase Order with Baker and Taylor Not to Exceed $115,800.
13. Authorize the Town Manager to Execute a Fifth Amendment to a Special Services Agreement with Liebert Cassidy Whitmore (LCW) to Increase Compensation in the Amount of $120,000 for a Total Contract Amount Not to Exceed $550,000.
14. Approve an Amendment to the Town Employees Association (TEA) Salary Schedule to Establish a New Classification Title and Salary Range for Senior Transportation Planner.
15. Authorize the Town Manager to Execute an Agreement with Los Gatos-Monte Sereno Safe Routes to School to Provide Education and Encouragement Programs and Crossing Guard Services for a Total Agreement Base Amount Valued at $350,950 Prior to Any Increased Adjustment Made for Consumer Price Index (CPI) Changes.
VERBAL COMMUNICATIONS (Members of the public are welcome to address the Town Council on any matter that is not listed on the agenda and is within the subject matter jurisdiction of the Town Council. The law generally prohibits the Town Council from discussing or taking action on such items. However, the Council may instruct staff accordingly. To ensure all agenda items are heard, this portion of the agenda is limited to 30 minutes. In the event additional speakers were not able to be heard during the initial Verbal Communications portion of the agenda, an additional Verbal Communications will be opened prior to adjournment. Each speaker is limited to no more than three (3) minutes or such time as authorized by the Mayor.) PUBLIC HEARINGS (Applicants/Appellants and their representatives may be allotted up to a total of five minutes maximum for opening statements. Members of the public may be allotted up to three minutes to comment on any public hearing item. Applicants/Appellants and their representatives may be allotted up to a total of three minutes maximum for closing statements. Items requested/recommended for continuance are subject to Council’s consent at the meeting.)
16. Conduct a Public Hearing to Hear Protests and Authorize the Following Actions for Landscape and Lighting Assessment Districts No. 1 and 2:
a. Adopt a Resolution Confirming the Diagram and Assessments and Levying and Authorizing Collection of Assessments for Landscape and Lighting Assessment District No. 1-Blackwell Drive Benefit Zone.
b. Adopt a Resolution Confirming the Diagram and Assessments and Levying and Authorizing Collection of Assessments for Landscape and Lighting Assessment District No. 1-Kennedy Meadows Benefit Zone.
c. Adopt a Resolution Confirming the Diagram and Assessments and Levying and Authorizing Collection of Assessments for Landscape and Lighting Assessment District No. 1-Santa Rosa Heights Benefit Zone.
d. Adopt a Resolution Confirming the Diagram and Assessments and Levying and Authorizing Collection of assessments for Landscape and Lighting Assessment District No. 1-Vasona Heights Benefit Zone.
e. Adopt a Resolution Confirming the Diagram and Assessments and Levying and Authorizing Collection of assessments for Landscape and Lighting Assessment District No. 1-Hillbrook Drive Benefit Zone.
f. Adopt a Resolution Confirming the Diagram and Assessments and Levying and Authorizing Collection of assessments for Landscape and Lighting Assessment District No. 2-Gemini Court Benefit Zone.
17. Conduct Brush Abatement Program Public Hearing to Consider Objections to the Proposed Removal of Brush on Parcels Listed on the 2024 Wildland Urban Interface (WUI) Area Non-Compliant Parcel List and Order Abatement.
18. Hear Protests and Adopt a Resolution Making Determinations and Approving the Reorganization of an Uninhabited Area Designated as El Gato Lane No. 06, Approximately
0.563 Acres on Property Pre-Zoned R-1:8. APN 523-22-007. Annexation Application AN24-001. Project Location: 15575 El Gato Lane. Property Owner: Sai Kiran Garimella and Renu Sushma Kolli. Applicant: Barzin Keyhankhadiv.
19. Consider a Request for an Exception to the Height Pole, Flagging, Netting, and Signage Policy to Allow Preparation of Visual Renderings by the Applicant Rather than the Town’s Consultant as Required by the Policy on Property Zoned R:PD Located at 110 Wood Road.
This Request is Not a Project as Defined by CEQA Guidelines Section 21065. APN 510-47- 038. Applicant: Frank Rockwood. Property Owner: Front Porch Communities. Project Planner: Sean Mullin
OTHER BUSINESS (Up to three minutes may be allotted to each speaker on any of the following items.)
20. Receive a Presentation, Provide Direction, and Consider Accepting a Proposed Donation from the Los Gatos Rotary to the Town at Live Oak Manor Park.
21. Provide Direction on the Town’s Community Grant Process.
22. Provide Any Additional Direction on Near-term Improvements to the Interim Community Center and Operational Support for Community Partners.
PUBLIC HEARINGS (Applicants/Appellants and their representatives may be allotted up to a total of five minutes maximum for opening statements. Members of the public may be allotted up to three minutes to comment on any public hearing item. Applicants/Appellants and their representatives may be allotted up to a total of three minutes maximum for closing
statements. Items requested/recommended for continuance are subject to Council’s consent at the meeting.)
23. *Adopt a Resolution and Introduce Ordinances to Place a One-Eighth Cent Sales Tax on the November 2024 Ballot as Either One Measure for a Special Tax or Two Measures for a General Tax and a Companion Advisory Measure to be Adopted by a Separate Resolution; and Authorize a Fiscal Year 2024/25 Expenditure Budget Adjustment of $66,000 for a Single Measure or $132,000 for Two Measures from the Available Capital/Special Projects Reserve.
COUNCIL / MANAGER MATTERS
CLOSED SESSION REPORT
ADJOURNMENT (Council policy is to adjourn no later than midnight unless a majority of Council votes for an extension of time.)
ADA NOTICE In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Clerk’s Office at (408) 354- 6834.
Notification at least two (2) business days prior to the meeting date will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR §35.102-35.104] Item #23 has been amended
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL CLOSED SESSION MINUTES
MEETING DATE: 06/18/2024
ITEM NO: 1
DRAFT
Minutes of the Town Council Special Meeting – Closed Session Tuesday, June 4, 2024
The Town Council of the Town of Los Gatos conducted a Special Meeting in-person and utilizing teleconferencing means on Tuesday, June 4, 2024, at 5:15 p.m. to hold a Closed Session to discuss labor negotiations and anticipated litigation.
MEETING CALLED TO ORDER AT 5:15 P.M.
ROLL CALL
Present: Mayor Mary Badame, Vice Mayor Matthew Hudes (participated remotely), Council Member Rob Moore, Council Member Rob Rennie, and Council Member Maria Ristow.
Absent: None
VERBAL COMMUNICATIONS (ONLY ON ITEMS ON THE AGENDA)
None.
THE TOWN MOVED TO CLOSED SESSION ON THE FOLLOWING ITEM:
1. CONFERENCE WITH LABOR NEGOTIATORS (Government Code §54957.6) To meet with Town Negotiators listed below in closed session pursuant to Government Code §54957.6 regarding negotiations with the Employee Organizations listed below:
Town Negotiators: Lisa Charbonneau, Liebert Cassidy Whitmore Katy Nomura, Assistant Town Manager
Employee Organizations:
American Federation of State, County and Municipal Employees (AFSCME) Town Employees Association (TEA)
Police Officers’ Association (POA)
2. CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION (Government Code §54956.9(e)(3)): 2 cases.
- Claim submitted by B. Tiernan
- Verbal Communications from Chris O'Reilly
The Town Council reconvened in open session. The Town Attorney stated there was no reportable action.
ITEM NO. 1.
PAGE 2 OF 2
SUBJECT: Draft Minutes of the Special Town Council Meeting of June 4, 2024 DATE: June 5, 2024
ADJOURNMENT
The meeting adjourned at 6:02 p.m.
Attest: Submitted by:
___________________________ ___________________________ Wendy Wood, Town Clerk Laurel Prevetti, Town Manager
ITEM NO. 1.
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 06/18/2024
ITEM NO: 2
DRAFT
Minutes of the Town Council Meeting
Tuesday, June 4, 2024
The Town Council of the Town of Los Gatos conducted a regular meeting in-person and utilizing teleconferencing means on Tuesday, June 4, 2024, at 7:00 p.m.
MEETING CALLED TO ORDER AT 7:00 P.M.
ROLL CALL
Present: Mayor Mary Badame, Vice Mayor Matthew Hudes (remote), Council Member Rob Moore, Council Member Rob Rennie, Council Member Maria Ristow.
Absent: None
PLEDGE OF ALLEGIANCE
Vikram Devaru led the Pledge of Allegiance. The audience was invited to participate.
PRESENTATIONS
Youth Commissioners gave a presentation on the work of the Youth Commission, announced Salt and Straw as the Youth Friendly Business of the Year and Juice Co. as the Green Youth Friendly Business of the Year.
Mayor Badame presented commendations to outgoing Youth Commissioners.
CONSENT ITEMS (TO BE ACTED UPON BY A SINGLE MOTION)
1. Approve Minutes for the May 20, 2024 Closed Session Town Council Meeting.
2. Approve Minutes for the May 21, 2024 Town Council Meeting.
3. Approve Town Council Meeting Schedule for Fiscal Year 2024/2025.
4. Ratify the Town Council Selection Committee’s Recommended Youth Commissioner Appointments.
5. Authorize the Town Manager to Execute a First Amendment to the Agreement for Consultant Services with The KPA Group to Increase the Compensation for Construction Administration for the Civic Center Improvements (CIP 821-2117) in an Amount of $36,835 for a Total Contract Amount of $132,835.
6. Adopt a Resolution to Adopt a List of Projects for Fiscal Year 2024/25 Funded by the State Senate Bill 1, the Road Repair and Accountability Act of 2017. RESOLUTION 2024-027
7. Authorize the Town Manager to Execute a Five-Year Agreement for Services with Air Systems Inc. for Heating Ventilation and Air Conditioning (HVAC) Preventative Maintenance and Repair Services Including a Contingency for Unforeseen Repairs for a Total Agreement Amount of $521,600.
ITEM NO. 2.
PAGE 2 OF 9
SUBJECT: Draft Minutes of the Town Council Meeting of June 4, 2024 DATE: June 4, 2024
8. 2024 Annual Street Repair and Resurfacing Project (CIP No. 811-9901):
a. Award and Authorize the Town Manager to Execute a Contract with O’Grady Paving in an Amount Not to Exceed $3,274,430;
b. Authorize the Town Manager to Execute Change Orders in an Amount Not to Exceed Ten Percent (10%) of the Contract Award Amount ($327,443); c. Authorize the Town Manager to Execute a Contract with BSK for Project Materials Testing in an Amount Not to Exceed $48,356; and
d. Approve the Project Construction Plans with Addenda as Required by Government Code 830.6 – Design Immunity.
9. Adopt a Resolution Establishing the Fiscal Year 2024/25 Gann Appropriation Limit for the Town of Los Gatos. RESOLUTION 2024-028
10. Authorize the Town Manager to Execute an Agreement with Los Gatos-Monte Sereno Safe Routes to School to Provide Education and Encouragement Programs and Crossing Guard Services for an Amount Not to Exceed $70,190.
11. Adopt a Resolution Calling for the General Municipal Election to be Held on November 5, 2024 for the Election of Two Town Council Members to be Held in the Town of Los Gatos, Requesting the Consolidation of Election with the Statewide General Election, Requesting the Santa Clara County Board of Supervisors Render Specified Services to the Town Related to the Conduct of the General Municipal Election, Adopting Regulations for Candidates for Elective Office Pertaining to Filing Fees and Candidate Statements, and Providing for the Process in the Event of a Tie Vote. RESOLUTION 2024-029
12. Authorize the Town Manager to Execute a First Amendment to an Agreement for Services with JLP Building Maintenance LLC for Janitorial Services to Extend the Term through September 30, 2024 and Increase the Compensation by $66,551 for a Total Amount Not to Exceed $1,115,603.
13. Authorize the Town Manager to Execute a First Amendment to the Construction Agreement with Tucker Construction Inc. to Increase the Compensation by $13,538 for a Total Agreement Amount Not to Exceed $287,977 for the Adult Recreation Center Americans with Disabilities Act (ADA) Compliant Public Restroom Project (CIP 821-2601).
14. 2024 Annual Curb, Gutter, and Sidewalk Maintenance Project (CIP No. 813-9921):
a. Award and Authorize the Town Manager to Execute an Agreement for Consultant Services with Ninyo & Moore for Materials Testing in an Amount Not to Exceed $18,555; and
b. Authorize an Expenditure Budget Transfer in an Amount of $18,555 from the Annual Street Repair and Resurfacing Project (CIP No. 811-9901) to the Annual Curb, Gutter, and Sidewalk Maintenance Project (CIP No. 813-9921).
15. Authorize the Town Manager to Execute an Amendment to the Software Support Agreement with Sun Ridge Systems to Incorporate Crossroads Collision and E-Citation Add-On Modules for the Remaining Term of the Original Agreement with the Total Agreement Not to Exceed $260,000.
16. Authorize the Town Manager to Execute a Transitional Agreement for Animal Services with Silicon Valley Animal Control Authority (SVACA) and Execute a Revised Joint Exercise of Powers Agreement for SVACA as a Participating Member Agency.
ITEM NO. 2.
PAGE 3 OF 9
SUBJECT: Draft Minutes of the Town Council Meeting of June 4, 2024 DATE: June 4, 2024
Mayor Badame opened public comment.
No one spoke.
Mayor Badame closed public comment.
MOTION: Motion by Council Member Ristow to approve consent items 1-16. Seconded by Council Member Moore.
VOTE: Motion passed unanimously by roll call vote.
VERBAL COMMUNICATIONS
Amy Despars
- Commented concerns regarding proposed development projects.
Gil Mesa
- Commented on concerns regarding the building height of proposed development projects.
Deborah Weinstein and Sonya Tappan, Los Gatos Education Foundation - Announced Sonya will be taking over the role of Executive Director and thanked the Council for their support.
David Lawler
- Inquired about postcard notice mailing.
Joe Enz, Friends of the Los Gatos Creek
- Commented on creek clean-up.
Rob Stump
- Requested the Town Council work with the Los Gatos Lodge property developer and school district to create a second point of access to the Los Gatos High School property.
Lee Fagot
- Stated support of Rob Stump’s comments and provided positive remarks on the Youth Commission’s work.
Rich Stephens
- Commented concerns regarding proposed development projects.
Lucinda Van Bruggen
- Inquired about signage for development projects and commented on concerns regarding proposed development projects.
ITEM NO. 2.
PAGE 4 OF 9
SUBJECT: Draft Minutes of the Town Council Meeting of June 4, 2024 DATE: June 4, 2024
Pat Kearns, WRATES
- Commented on concerns with San Jose Water Company and requested the Town work with the California Public Utilities Commission (CPUC) to ensure utilities are held accountable.
Tony Alarcon
- Commented concerns regarding proposed development projects.
Conrad Van Bruggen
- Commented on height concerns regarding proposed development projects.
Franz Zach
- Commented concerns regarding proposed development projects.
Audry Warmuth
- Commented concerns regarding proposed development projects.
Ellie Stearn
- Commented on height concerns of proposed development projects.
Lynley Hogan
- Read religious text and commented on concerns.
Brent Ventura
- Commented on concerns with proposed development projects.
PUBLIC HEARINGS
17. Consider a Recommendation of the Planning Commission to Adopt a Resolution Adopting the Draft Revised 2023-2031 Housing Element. An Environmental Analysis Based on the Previously Certified 2040 General Plan Final Environmental Impact Report has been Prepared for the Draft Revised 2023-2031 Housing Element. The Housing Element is Within the Scope of the Previously Approved 2040 General Plan, and the Program EIR for the General Plan Adequately Describes the Impacts of the Housing Element for Purposes of CEQA. Location: Townwide. Applicant: Town of Los Gatos. General Plan Amendment Application GP-24-001. RESOLUTION 2024-030
Jocelyn Shoopman, Senior Planner, presented the staff report.
Council asked preliminary questions.
Mayor Badame opened public comment.
ITEM NO. 2.
PAGE 5 OF 9
SUBJECT: Draft Minutes of the Town Council Meeting of June 4, 2024 DATE: June 4, 2024
Tony Alarcon
- Commented on RHNA (Regional Housing Needs Allocation) numbers and upzoning concerns.
Rich Stephens
- Commented on concerns with increased housing in hillside areas and a streamlined process for approval of Accessory Dwelling Units (ADUs).
Amy Despars
- Commented on concerns with the number of units proposed for approval.
Lee Quintana
- Commented on concerns with Housing Element Programs J and AY and that the Town needs to address the parcels with zoning district and General Plan designation inconsistencies.
David Lawler
- Commented on the letter he submitted and requested the Town fight the State to stop Builders Remedy.
Brent Ventura
- Commented on concerns with the number of housing units proposed for approval.
Mayor Badame closed public comment.
Council discussed the item.
MOTION: Motion by Council Member Moore to adopt a resolution adopting the Draft Revised 2023 Housing Element shown in the agenda [packet material] as Attachment 10.
Seconded by Council Member Ristow.
VOTE: Motion passed 3-2 by roll call vote. Vice Mayor Hudes and Mayor Badame voted no.
Mayor Badame called a recess at 9:51 p.m.
The meeting reconvened at 10:03 p.m.
18. Operating and Capital Budgets:
a. Adopt a Resolution Approving the Town of Los Gatos Fiscal Year (FY) 2024/25 Operating Budget and FY 2024/25– 2028/29 Capital Improvement Program (CIP), New Appropriations, Additional Council Actions on May 21, 2024; Minor Corrections, and Carry-Forward Appropriations; RESOLUTION 2024-031
ITEM NO. 2.
PAGE 6 OF 9
SUBJECT: Draft Minutes of the Town Council Meeting of June 4, 2024 DATE: June 4, 2024
b. Adopt a Resolution Approving Commitment of Fund Balances under GASB 54 (Attachment 2); RESOLUTION 2024-032
c. Approve FY 2023/24 Budget Adjustments and Reclassifications as listed in Attachment 3; and
d. Authorize an Expenditure Budget Adjustment from IRS 115 Restricted Pension Trust to CalPERS up to the Amount Available in the Trust (the Estimated Balance Available is $2,090,163).
Gitta Ungvari, Finance Director, presented the staff report.
Mayor Badame opened public comment.
No one spoke.
Mayor Badame closed public comment.
MOTION: Motion by Mayor Badame to adopt a resolution approving the Town of Los Gatos Fiscal Year (FY) 2024/25 Operating Budget and FY 2024/25 – 2028/29 Capital Improvement Program (CIP), new appropriations, additional Council actions on May 21, 2024; minor corrections, and Carry-Forward Appropriations as in Attachment 1; adopt a Resolution Approving Commitment of Fund Balances under GASB 54 (Attachment 2); approve FY 2023/24 Budget Adjustments and Reclassifications as listed in Attachment 3; and authorize an expenditure budget adjustment from IRS 115 restricted pension trust to CalPERS up to the amount available in the trust (which the estimated balance is $2,090,163). Seconded by Council Member Moore.
Town Manager Prevetti stated Attachment 3 was revised in the Desk Item with Attachment 5.
She also noted that the Oversight Committee did not take action to move money from the pension fund, therefore the recommended action on the expenditure budget adjustment (item d) is not necessary at this time.
SUBSTITUTE MOTION: Motion by Mayor Badame to approve the Resolutions in Attachments 1, 2, and 5 [in the agenda packet and supplemental materials]. Seconded by Council Member Moore.
VOTE: Motion passed unanimously by roll call vote.
19. Adopt a Resolution Approving the Administrative Fine and Penalty Schedule for Fiscal Year 2024/25 to Continue, Amend, and Add Certain Department Administrative Fines and Penalties for Fiscal Year 2024/25. RESOLUTION 2024-033
Gabreille Whelan, Town Attorney, presented the staff report.
ITEM NO. 2.
PAGE 7 OF 9
SUBJECT: Draft Minutes of the Town Council Meeting of June 4, 2024 DATE: June 4, 2024
Mayor Badame opened public comment.
No one spoke.
Mayor Badame closed public comment.
MOTION: Motion by Council Member Ristow to adopt a resolution approving the administrative fine and penalty schedule for Fiscal Year 2024/25 in Attachment 1 with the removal of references to Town Code Sections 15.50.015 and 15.050.020 [15.05.020 as stated in the Desk Item] to continue, amend, and add certain department administrative fines and penalties for fiscal year 2024/25 [Attachment 2]. Seconded by Council Member Moore.
VOTE: Motion passed unanimously by roll call vote.
OTHER BUSINESS
20. Adopt a Resolution to Set a Date for Consideration of the Reorganization of an Uninhabited Area Designated as El Gato Lane No. 6, Approximately 0.563 Acres on Property Pre-Zoned R1:8. APN 523-22-007. Annexation Application AN24-001. Project Location: 15575 El Gato Lane. Property Owners: Sai Kiran Garimella and Renu Sushma Kolli. Applicant: Barzin Keyhankhadiv. RESOLUTION 2024-034
Joel Paulson, Community Development Director, presented the staff report.
Mayor Badame opened public comment.
No one spoke.
Mayor Badame closed public comment.
MOTION: Motion by Mayor Badame to adopt a resolution in Attachment 1 to set a date for consideration of the reorganization of an uninhabited area designated as El Gato Lane No. 6, approximately 0.563 acres located at 15575 El Gato Lane. Seconded by Council Member Ristow.
VOTE: Motion passed unanimously by roll call vote.
PUBLIC HEARINGS
21. Introduce an Ordinance Amending the Town’s Curfew Ordinance. Ordinance Title: “An Ordinance of the Town Council of the Town of Los Gatos Amending Chapter 18, ‘Offenses And Miscellaneous Provisions,’ Article III, ‘Minors,’ and Division 2, ‘Curfew,’ of the Town of Los Gatos Town Code."
ITEM NO. 2.
PAGE 8 OF 9
SUBJECT: Draft Minutes of the Town Council Meeting of June 4, 2024 DATE: June 4, 2024
Gabreille Whelan, Town Attorney, presented the staff report.
Mayor Badame opened public comment.
Lee Fagot
- Shared his experience on a ride along to see who was violating the curfew law and stated all the youths stopped were from other municipalities.
Mayor Badame closed public comment.
Council discussed the item.
MOTION: Motion by Mayor Badame to introduce an Ordinance in Attachment 2 amending the Town’s Curfew Ordinance. Seconded by Council Member Ristow.
VOTE: Motion passed unanimously by roll call vote.
COUNCIL/TOWN MANAGER REPORTS
Council Matters
- Council Member Ristow stated she attended CalCities Call to Action Luncheon, Memorial Day Ceremony, Chamber of Commerce Merchant Meeting, Romantiques’ 30th Anniversary Celebration, and the Monday Morning Monthly Movie held by the Los Gatos Thrives Foundation.
- Council Moore acknowledged the passing of Drew Gordon; stated he will participate in the Library Summer Reading Challenge; attended the Los Gatos Education Foundation Celebration for Deborah Weinstein, a Los Gatos Disaster Aid Response Team (DART) Team meeting, a League of Cities Peninsula Division meeting, the Daves Avenue Culture Fair, the Africa Day event hosted by AWO, the Silicon Valley at Home “Happy Housers” event, and a Lion’s Club date night event; met with students affected by the passing of an individual in an accident on Blossom Hill Road; and met with developers. - Council Member Rennie stated he attended a Silicon Valley Clean Energy Oversight Committee meeting.
- Vice Mayor Hudes stated he met with the Los Gatos Foundation for Older Adult to Thrives Executive Committee and the Community Center Planning Committee meeting; announced the upcoming Community Center Dreaming meeting and invited all to attend; attended a Community Health and Senior Services Committee (CHSSC) meeting; participated in a meeting with the Los Gatos Foundation for Older Adults to Thrive meeting; and met with developer working on an older adults community called the Meadows. - Mayor Badame stated she attended a League of Cities Peninsula Division meeting; participated in Mayors and Managers of West Valley monthly meeting, a West Valley Solid Waste Management Authority meeting; participated in the Memorial Day Ceremony; met with Los Gatos-Saratoga Union High School District Superintendent; attended a Monday
ITEM NO. 2.
PAGE 9 OF 9
SUBJECT: Draft Minutes of the Town Council Meeting of June 4, 2024 DATE: June 4, 2024
Morning Monthly Movie; and participated in the 8th grade promotional ceremony at Hillbrook School.
Town Manager Matters
- Announced Symphony in the Park will be held on July 4, 2024, at Oak Meadow Park starting at 10:30 a.m. and invited all to attend.
CLOSED SESSION REPORT
Gabreille Whelan, Town Attorney, stated the Town Council met in closed session to discuss labor negotiations pursuant to Government Code §54957.6 and conference with legal counsel regarding anticipated litigation pursuant to Government Code §54956.9(e)(3) there was no reportable action for either item.
ADJOURNMENT
The meeting adjourned at 10:47 p.m.
Respectfully Submitted:
_____________________________________
Jenna De Long, Deputy Town Clerk
ITEM NO. 2.
PREPARED BY: Eric Lemon
Finance and Accounting Manager
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● 406-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 06/18/2024
ITEM NO: 3
DATE: June 10, 2024
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Receive the Monthly Financial and Investment Report for April 2024 RECOMMENDATION:
Receive the Monthly Financial and Investment Report for April 2024.
BACKGROUND:
California Government Code Section 41004 requires that the Town Treasurer submit to the Town Clerk and the legislative body a written report and accounting of all receipts, disbursements, and fund balances. The Finance Director assumes the Town Treasurer role.
Attachment 1 contains the April 2024 Monthly Financial and Investment Report which fulfills this requirement. The April 2024 Monthly Financial and Investment Report will be received by the Finance Commission at their September 9, 2024 meeting.
DISCUSSION:
The April 2024 Monthly Financial and Investment Report includes a Fund Balance Schedule, representing estimated funding available for all funds at the end of the respective month. The fund balances were estimated at a point in time and will be finalized at the final close of the fiscal year.
Please note that the amount in the Fund Schedule differs from the Portfolio Allocation and Treasurer’s Cash Fund Balances Summary schedule because assets and liabilities are components of the fund balance.
ITEM NO. 3.
PAGE 2 OF 3
SUBJECT: Monthly Financial and Investment Report for April 2024 DATE: June 10, 2024
DISCUSSION (continued):
As illustrated in the summary below, Total Cash is adjusted by the addition of Total Assets less the amount of Total Liabilities to arrive at the Ending Fund Balance – which represents the actual amount of funds available.
As of April 30, 2024, the Town’s financial position (Assets $93.41M, Liabilities $29.62M, and Fund Equity $63.79M) remains strong and there are no issues meeting financial obligations in the near future.
As of April 30, 2024, the Town’s weighted portfolio yield for investments under management was 4.37% which was 10 basis points above the Local Agency Investment Fund (LAIF) yield of
4.27% for the same reporting period. Currently, the LAIF portfolio’s weighted average maturity (WAM) is 227 days versus the Town’s longer WAM of 657 days. The longer maturity (WAM) for Town assets under management reflects the Town’s strategy to take advantage of higher yields associated with longer maturities balanced with shorter term yields available on investments held with the State’s LAIF. The Town’s weighted average rate of return on investments under management of 4.37% at the close of April was 3 basis points higher when compared to the prior month’s return of 4.34% reported as of March 31, 2024.
Since April 2023, LAIF yields had climbed from 287 basis points (2.87%) to 427 basis points (4.27%) through the end of April 2024.
Staff, in coordination with the Town’s investment advisor, primarily replaced maturing investments with long term maturities in the four-to-five-year maturity range. These investments capture current yields that exceed the rates expected to be earned in the LAIF pool during that same time period. The State LAIF pool typically lags the market when current market yields are either increasing or decreasing.
On March 22, 2023, the Federal Reserve voted to approve a ¼ percentage basis point increase from 4.75% to 5.00%. This action was followed with additional hikes in May 2023 from 5.00% to 5.25% and July from 5.25 % to 5.5 %. Through these actions over time, the Federal Open Market Committee’s (FOMC) goal is to bring year to year inflation to its targeted level of 2%.
ITEM NO. 3.
PAGE 3 OF 3
SUBJECT: Monthly Financial and Investment Report for April 2024 DATE: June 10, 2024
DISCUSSION (continued):
The US economy added 303,000 jobs in March, stronger than consensus expectations of 214,000. The participation rate edged up from 62.5% to 62.7% and the unemployment rate fell slightly from 3.9% to 3.8%. Wage growth fell from 4.3% to 4.1%. However, the employment cost index (ECI), the fed’s preferred measure of labor costs, came in at 1.2% in Q1 from 0.9% in Q4 (stalling at 4.2% per annum), higher than the market expected and the firmest quarterly ECI print since Q3 2022.
The Town's investments are in compliance with the Town's Investment Policy dated May 21, 2024, and also in compliance with the requirements of Section 53600 at seq. of the California State Code. Based on the information available, the Town has sufficient funds to meet the cash demands for the next six months.
CONCLUSION:
Receive Monthly Financial and Investment Report for April 2024.
Attachment:
1. Financial and Investment Report (April 2024)
ITEM NO. 3.
Weighted Average YTM Portfolio Yield on Investments
under Management 4.37%
Weighted Average Maturity (days) 657
This Month Last Month One year ago
Portfolio Allocation & Treasurer's Cash Balances $80,969,252 $74,499,958 $74,868,304 Cert. of Participation 2002 Lease Payment Fund
Managed Investments $49,675,957
Local Agency Investment Fund $16,516,009
Reconciled Demand Deposit Balances $14,777,286
Portfolio Allocation & Treasurer's Cash Balances $80,969,252 Benchmarks/ References:
Town's Average Yield 4.37% 4.34% 2.77%
LAIF Yield for month 4.27% 4.23% 2.87%
3 mo. Treasury 5.41% 5.38% 5.08%
6 mo. Treasury 5.41% 5.33% 5.04%
2 yr. Treasury 5.04% 4.62% 4.01%
5 yr. Treasury (most recent) 4.71% 4.21% 3.49%
10 Yr. Treasury 4.68% 4.20% 3.43%
Town of Los Gatos
Summary Investment Information
April 30, 2024
0 - 1 year
42%
1 - 2 years
16%
2 - 3 years
13%
3 - 5 years
29%
Portfolio Maturity Profile
Compliance: The Town's investments are in compliance with the Town's investment policy dated May 21, 2024, and also in compliance with the requirements of Section 53600 at seq. of the California State Code. Based on the information available, the Town has sufficient funds to meet the cash demands for the next six months.
1 ATTACHMENT 1 Page 20
ITEM NO. 3.
Month YTD
Cash & Investment Balances - Beginning of Month/Period $ 74,499,957.76 $ 78,384,947.79 Receipts 9,787,361.30 66,567,695.67
Disbursements (3,318,066.61) (63,983,391.01)
Cash & InvestmCash & Investment Balances - End of Month/Period $80,969,252.45 $80,969,252.45 Portfolio Allocation Amount % of Portfolio
Max. % or $ Allowed
per State Law or Policy
BNY MM $36,103.88 0.05% 20% of Town Portfolio
US Treasury Notes $19,915,752.16 30.10% No Max. on US Treasuries Government Agency Debenture Notes $15,867,942.90 23.97% No Max. on Non-Mortgage Backed Corporate Medium Term Bonds $13,856,158.01 20.93% 30% of Town Portfolio Local Agency Investment Fund $16,516,009.29 24.95% $75 M per State Law Subtotal - InSubtotal - Investments 66,191,966.24 100.00% Reconciled Demand Deposit Balances 14,777,286.21
Total Portfolio Allocation & Treasurer's Cash Balances $80,969,252.45
0.0401
0.0388
Town of Los Gatos
Portfolio Allocation & Treasurer's Cash Balances
April 30, 2024
BNY MM
0.05%
US Treasury Notes
30.10%
Government Agency Debenture
Notes
23.97%
Corporate Medium Term Bonds
20.93%
Local Agency Investment Fund
24.95%
Portfolio Investment Allocation
$74.9 M
$81.0 M
$0.0 M
$10.0 M
$20.0 M
$30.0 M
$40.0 M
$50.0 M
$60.0 M
$70.0 M
$80.0 M
$90.0 M
Apr-23 May-23 Jun-23 Jul-23 Aug-23 Sep-23 Oct-23 Nov-23 Dec-23 Jan-24 Feb-24 Mar-24 Apr-24 Treasurer's Fund Balances
2
ITEM NO. 3.
April 2024 April 2024 April 2024
Beginning Deposits Interest/ Ending
Balance Realized Gain/Adj. Earnings Withdrawals Balance Non-Treasury Funds:
Cert. of Participation 2002 Ser A Reserve Fund $ 691,910.37 $ - $ 2,814.90 $ - $ 694,725.27 Note 1 Cert. of Participation 2010 Ser Lease Payment Fund 101.00 - 0.37 - 101.37 Note 2 Cert. of Participation 2002 Ser A Lease Payment Fund 29,302.20 - 119.29 - 29,421.49 Note 1 Cert. of Participation 2010 Ser Reserve Fund 1,370,921.35 - 6,037.37 - 1,376,958.72 Note 2 Total Restricted Funds: $ 2,092,234.92 $ - $ 8,971.93 $ - $ 2,101,206.85 CEPPT IRS Section 115 Trust 2,180,743.10 - (63,241.59) - $ 2,117,501.51 Note 3 Grand Total COP's and CEPPT Trust $ 4,272,978.02 $ - $ (54,269.66) $ - $ 4,218,708.36 These accounts are not part of the Treasurer's fund balances reported elsewhere in this report, as they are for separate and distinct entities.
Note 1: The three original funds for the Certificates of Participation 2002 Series A consist of construction funds which will be expended over the next few years, reserve funds which will guarantee the payment of lease payments, and a third fund for the disbursement of lease payments and initial delivery costs.
Note 2: The 2010 COP Funds are all for the Library construction, reserves to guarantee lease payments, and a lease payment fund for the life of the COP issue. The COI fund was closed in September 2010.
Note 3: The CEPPT Section IRS Section 115 Trust was established as an irrevocable trust dedicated to accumulate resources to fund the Town's unfunded liabilities related to pension and other post employment benefits.
Town of Los Gatos
Non-Treasury Restricted Fund Balances
April 30, 2024
3
ITEM NO. 3.
July 2023 $ 133,845.42
August 2023 $ 131,615.82
September 2023 $ 158,361.71
October 2023 $ 149,112.14
November 2023 $ 163,137.22
December 2023 $ 177,498.26
January 2024 $ 183,950.61
February 2024 $ 183,453.40
March 2024 $ 206,361.80
April 2024 $ 218,590.31
May 2024 -
June 2024 -
$ 1,705,926.69
Town of Los Gatos
Statement of Interest Earned
April 30, 2024
4
ITEM NO. 3.
Original Issue Market Value Maturity Yield to Interest Interest Interest Days Deposit Par Original (Discount) Market Above (Under) Purchased Date or Maturity Received Earned Earned to Institution CUSIP # Security Coupon Date Value Cost Premium Value Cost Interest Call Date or Call to Date Prior Yrs. Current FY Maturity Apple 037833DB3 Corporate Bond 2.90% 12/20/2022 1,300,000.00 1,228,591.00 (71,409.00) 1,213,719.00 (14,872.00) 6/21/2027 4.19% $ 46,287.22 $ 28,170.97 $ 44,750.76 1147 Home Depot 437076BM3 Corporate Bond 3.00% 8/4/2022 1,000,000.00 991,960.00 (8,040.00) 959,660.00 (32,300.00) 1/1/2026 3.04% $ 49,750.00 $ 29,252.66 $ 27,036.55 611 US Treasury 912828ZW3 US Treasury Note 0.25% 8/9/2022 350,000.00 322,096.88 (27,903.12) 330,519.00 8,422.12 6/30/2025 3.16% $ 1,217.39 $ 9,366.72 $ 8,790.30 426 IBM 459200JY8 Corporate Bond 3.00% 3/25/2021 1,000,000.00 1,071,040.00 71,040.00 999,000.00 (72,040.00) 5/15/2024 0.71% $ 79,166.67 $ 16,751.96 $ 6,178.17 15 FFCB 3133EN5V8 Gov. Agency Debenture 4.13% 1/17/2023 236,000.00 239,174.20 3,174.20 231,128.96 (8,045.24) 1/11/2027 3.76% $ 9,572.75 $ 4,016.30 $ 7,469.34 986 US Treasury 91282CBT7 US Treasury Note 0.75% 9/30/2022 800,000.00 712,565.18 (87,434.82) 737,720.00 25,154.82 3/31/2026 4.14% $ 9,000.00 $ 23,165.06 $ 25,880.38 700 FFCB 3133ENP95 Gov. Agency Debenture 4.25% 9/30/2022 900,000.00 900,939.60 939.60 888,633.00 (12,306.60) 9/30/2025 4.14% $ 57,375.00 $ 28,374.86 $ 31,700.85 518 American Honda 02665WCZ2 Corporate Bond 2.40% 11/27/2019 1,000,000.00 1,012,410.01 12,410.01 995,070.00 (17,340.01) 6/27/2024 2.12% $ 108,733.34 $ 76,483.79 $ 17,793.71 58 JP Morgan Chase 46625HRS1 Corporate Bond 3.20% 9/23/2022 500,000.00 474,660.00 (25,340.00) 477,550.00 2,890.00 3/15/2026 4.70% $ 19,644.44 $ 17,865.15 $ 19,460.25 684 Honeywell Int'l. 438516BW5 Corporate Bond 2.30% 11/20/2019 1,000,000.00 1,014,660.00 14,660.00 990,500.00 (24,160.00) 7/15/2024 1.64% $ 96,983.33 $ 71,679.55 $ 16,587.45 76 Caterpillar Financial Serv 14913Q2V0 Corporate Bond 2.85% 2/23/2021 1,000,000.00 1,077,370.00 77,370.00 998,740.00 (78,630.00) 5/17/2024 0.44% $ 77,900.00 $ 10,677.18 $ 3,799.93 17 FNMA 3135G0V75 Gov. Agency Debenture 1.75% 10/17/2019 1,100,000.00 1,105,833.30 5,833.30 1,092,971.00 (12,862.30) 7/2/2024 1.63% $ 81,331.25 $ 66,718.86 $ 15,051.22 63 FFCB 3133EKQA7 Gov. Agency Debenture 2.08% 10/21/2019 1,000,000.00 1,019,780.00 19,780.00 987,900.00 (31,880.00) 9/10/2024 1.66% $ 91,231.11 $ 61,888.40 $ 14,002.94 133 FHLB 3135G05X7 Gov. Agency Debenture 0.38% 6/10/2022 1,200,000.00 1,102,952.40 (97,047.60) 1,127,028.00 24,075.60 8/25/2025 3.04% $ 7,687.50 $ 36,626.55 $ 29,015.84 482 US Treasury 912828ZL7 US Treasury Note 0.38% 4/12/2022 1,700,000.00 1,583,927.57 (116,072.43) 1,620,287.00 36,359.43 4/30/2025 2.72% $ 13,066.99 $ 54,017.06 $ 37,106.31 365 FHLB 3130AQF65 Gov. Agency Debenture 1.25% 11/30/2022 1,300,000.00 1,160,559.40 (139,440.60) 1,188,304.00 27,744.60 12/21/2026 4.15% $ 17,197.92 $ 29,385.32 $ 42,276.06 965 US Treasury 912828XT2 US Treasury Note 2.00% 10/31/2019 1,000,000.00 1,015,667.41 15,667.41 997,180.00 (18,487.41) 5/31/2024 1.64% $ 81,639.34 $ 60,792.37 $ 13,857.75 31 FHLB 3130APJH9 Gov. Agency Debenture 1.00% 1/17/2023 1,000,000.00 907,010.00 (92,990.00) 923,110.00 16,100.00 10/28/2026 4.17% $ 13,354.17 $ 15,544.14 $ 28,908.30 911 FFCB 3133EN5N6 Gov. Agency Debenture 4.00% 2/8/2023 1,700,000.00 1,706,732.00 6,732.00 1,652,264.00 (54,468.00) 1/6/2028 3.91% $ 61,955.56 $ 25,921.64 $ 55,676.76 1346 Freddie Mac 3137EAEX3 Gov. Agency Debenture 0.38% 5/1/2023 750,000.00 689,032.50 (60,967.50) 701,962.50 12,930.00 9/23/2025 3.97% $ 2,515.62 $ 4,638.18 $ 23,577.44 511 American Honda 02665WED9 Corporate Bond 4.70% 5/11/2023 600,000.00 608,856.00 8,856.00 588,540.00 (20,316.00) 1/12/2028 4.34% $ 18,878.33 $ 3,603.61 $ 21,982.03 1352 US Treasury 91282CEF4 US Treasury Note 2.50% 6/9/2023 1,500,000.00 1,416,626.12 (83,373.88) 1,403,850.00 (12,776.12) 3/31/2027 4.09% $ 30,327.87 $ 3,416.23 $ 49,616.73 1065 US Treasury 91282CGA3 US Treasury Note 4.00% 6/20/2023 2,100,000.00 2,080,558.59 (19,441.41) 2,062,683.00 (17,875.59) 12/15/2025 4.40% $ 40,852.46 $ 2,515.25 $ 76,715.03 594 Colgate-Palmolive 194162AR4 Corporate Bond 4.60% 7/14/2023 500,000.00 504,655.00 4,655.00 494,600.00 (10,055.00) 2/1/2028 4.37% $ 14,502.79 $ - $ 17,522.43 1372 FannieMae 3135G06G3 Gov. Agency Debenture 0.50% 7/14/2023 500,000.00 455,157.00 (44,843.00) 466,250.00 11,093.00 11/7/2025 4.63% $ 784.72 $ - $ 17,399.66 556 FFCB 3133EPQC2 Gov. Agency Debenture 4.63% 7/17/2023 500,000.00 501,957.50 1,957.50 494,885.00 (7,072.50) 7/17/2026 4.48% $ 11,562.50 $ - $ 17,732.20 808 FFCB 3133EPBM6 Gov. Agency Debenture 4.13% 7/14/2023 600,000.00 596,220.00 (3,780.00) 585,576.00 (10,644.00) 8/23/2027 4.29% $ 15,056.25 $ - $ 20,465.02 1210 PNC Bank 69353RFJ2 Corporate Bond 3.25% 7/25/2023 1,000,000.00 921,490.00 (78,510.00) 922,710.00 1,220.00 12/23/2027 5.23% $ 15,979.17 $ - $ 38,568.48 1332 US Treasury 91282CFU0 US Treasury Note 4.13% 7/31/2023 1,300,000.00 1,290,660.60 (9,339.40) 1,269,788.00 (20,872.60) 10/31/2027 4.31% $ 40,218.75 $ - $ 41,903.26 1279 Toyota Motor Credit 89236TKL8 Corporate Bond 5.45% 8/25/2023 1,600,000.00 1,617,168.00 17,168.00 1,610,112.00 (7,056.00) 11/10/2027 5.16% $ 18,166.67 $ - $ 56,707.65 1289 US Treasury 912810FE3 US Treasury Note 5.50% 10/3/2023 1,200,000.00 1,238,207.14 38,207.14 1,235,724.00 (2,483.14) 8/15/2028 4.76% $ 24,211.96 $ - $ 33,459.95 1568 Pepsico Inc 713448DF2 Corporate Bond 2.85% 10/16/2023 1,000,000.00 947,570.00 (52,430.00) 959,690.00 12,120.00 11/24/2025 5.24% $ 10,133.33 $ - $ 28,796.10 573 FFCB 3133EPUW3 Gov. Agency Debenture 4.75% 10/13/2023 1,000,000.00 994,338.00 (5,662.00) 992,650.00 (1,688.00) 9/1/2026 4.96% $ 18,208.33 $ - $ 27,101.78 854 Freddie Mac 3137EAEP0 Gov. Agency Debenture 1.50% 10/13/2023 1,000,000.00 951,540.00 (48,460.00) 970,330.00 18,790.00 2/12/2025 5.32% $ 4,958.33 $ - $ 28,079.83 288 US Treasury 91282CEW7 US Treasury Note 3.25% 10/16/2023 1,000,000.00 950,039.06 (49,960.94) 953,090.00 3,050.94 6/30/2027 4.73% $ 6,711.96 $ - $ 24,815.53 1156 US Treasury 91282CEN7 US Treasury Note 2.75% 10/31/2023 1,300,000.00 1,214,336.39 (85,663.61) 1,223,118.00 8,781.61 4/30/2027 4.82% $ 17,875.00 $ - $ 30,034.94 1095 US Treasury 912828YV6 US Treasury Note 1.50% 11/15/2023 700,000.00 673,667.97 (26,332.03) 684,565.00 10,897.03 11/30/2024 5.26% $ 430.33 $ - $ 16,345.97 214 US Treasury 91282CAB7 US Treasury Note 0.25% 11/15/2023 675,000.00 623,900.39 (51,099.61) 634,871.25 10,970.86 7/31/2025 4.92% $ 353.09 $ - $ 14,447.79 457 US Treasury 91282CGU9 US Treasury Note 3.88% 11/30/2023 1,000,000.00 983,515.62 (16,484.38) 987,810.00 4,294.38 3/31/2025 5.17% $ 12,916.67 $ - $ 21,282.01 335 US Treasury 91282CCH2 US Treasury Note 1.25% 12/21/2023 900,000.00 798,647.55 (101,352.45) 780,786.00 (17,861.55) 6/30/2028 3.99% $ 305.71 $ - $ 12,069.84 1522 FNMA 3135G0Q22 Gov. Agency Debenture 1.88% 12/21/2023 900,000.00 845,676.00 (54,324.00) 836,136.00 (9,540.00) 9/24/2026 4.22% $ 4,359.38 $ - $ 13,116.47 877 US Treasury 91282CFB2 US Treasury Note 2.75% 1/2/2024 1,000,000.00 960,354.91 (39,645.09) 937,030.00 (23,324.91) 7/31/2027 3.95% $ 2,167.12 $ - $ 12,578.13 1187 US Treasury 91282CHE4 US Treasury Note 3.63% 1/17/2024 1,800,000.00 1,775,185.72 (24,814.28) 1,722,726.00 (52,459.72) 8,557.37 5/31/2028 3.97% $ (8,557.37) $ - $ 20,208.75 1492 JP Morgan Chase 46647PDG8 Corporate Bond 4.85% 2/1/2024 1,400,000.00 1,396,528.00 (3,472.00) 1,371,188.00 (25,340.00) 1,131.90 7/25/2027 4.93% $ (1,131.90) $ - $ 16,803.17 1181 US Bancorp 91159HJF8 Corporate Bond 4.55% 2/5/2024 1,000,000.00 989,200.00 (10,800.00) 966,800.00 (22,400.00) 1,642.33 7/22/2027 4.89% $ (1,642.33) $ - $ 11,318.07 1178 Treasury 91282CHB0 US Treasury Note 3.63% 2/23/2024 1,175,000.00 1,151,962.92 (23,037.08) 1,143,004.75 (8,958.17) 11,701.58 5/15/2026 4.56% $ (11,701.58) $ - $ 9,719.42 745 FHLB 3130AXB31 Gov. Agency Debenture 4.88% 2/27/2024 1,000,000.00 1,003,060.00 3,060.00 995,840.00 (7,220.00) 3/13/2026 4.72% $ 2,979.17 $ - $ 8,155.62 682 FFCB 3133EP5U5 Gov. Agency Debenture 4.13% 3/28/2024 1,700,000.00 1,687,981.00 (12,019.00) 1,652,638.00 (35,343.00) 1,558.33 3/20/2029 4.28% $ (1,558.33) $ - $ 6,558.24 1785 US Treasury 9128285M8 US Treasury Note 3.13% 4/30/2024 1,200,000.00 1,123,832.14 (76,167.86) 1,120,356.00 (3,476.14) 17,204.66 11/15/2028 4.69% $ (17,204.66) $ - $ - 1660 Subtotal $ 50,986,000.00 $ 49,639,853.07 $ (1,346,146.93) $ 49,180,593.46 $ (459,259.61) $ 41,796.17 $ 1,195,753.32 $ 680,871.81 $ 1,162,424.41 BNY MM Money Market 36,103.88 36,103.88 0.00 0.00% 1
LAIF State Investment Pool 16,516,009.29 16,420,072.20 (95,937.09) 4.27% 436,564.71 1 66,191,966.24 $65,636,769.54 ($555,196.70) $41,796.17 $ 1,195,753.32 $ 680,871.81 $ 1,598,989.12 Matured Assets
PNC Financial 69349LAM0 Corporate Bond 3.80% 2/7/2022 1,000,000.00 1,033,470.00 33,470.00 7/25/2023 1.49% $ 55,733.33 $ 20,987.56 $ 1,032.85 US Treasury 91282CCN9 US Treasury Note 0.13% 1/13/2022 1,200,000.00 1,188,375.00 (11,625.00) 7/31/2023 0.75% $ 2,323.37 $ 13,176.45 $ 766.36 Toyota Motor Credit 89236THA6_1 Corporate Bond 1.35% 4/12/2021 500,000.00 510,580.00 10,580.00 8/25/2023 0.45% $ 15,993.75 $ 5,065.91 $ 350.67 Toyota Motor Credit 89236THA6 Corporate Bond 1.35% 1/11/2022 1,100,000.00 1,107,315.00 7,315.00 8/25/2023 0.94% $ 24,090.00 $ 15,144.57 $ 1,585.23 US Treasury 91282CDA6 US Treasury Note 0.25% 1/31/2022 1,100,000.00 1,085,222.44 (14,777.56) 9/30/2023 1.07% $ 4,570.74 $ 16,417.94 $ 2,932.91 American Honda 02665WCQ2 Corporate Bond 3.63% 9/14/2021 950,000.00 1,012,871.00 62,871.00 10/10/2023 0.41% $ 71,362.15 $ 7,316.05 $ 1,141.03 FFCB 3133EMCQ3 Gov. Agency Debenture 0.28% 10/16/2020 2,000,000.00 1,998,000.00 (2,000.00) 10/13/2023 0.31% $ 16,753.33 $ 16,950.71 $ 1,803.27 US Treasury 91282CAP6 US Treasury Note 0.13% 6/30/2021 1,000,000.00 995,390.63 (4,609.37) 10/15/2023 0.33% $ 2,865.44 $ 6,520.12 $ 955.69 US Treasury 91282CDD0 US Treasury Note 0.38% 1/13/2022 1,100,000.00 1,090,675.78 (9,324.22) 10/31/2023 0.85% $ 7,406.77 $ 13,599.56 $ 3,138.36 US Treasury 91282CAW1 US Treasury Note 0.25% 7/15/2021 1,200,000.00 1,199,437.50 (562.50) 11/15/2023 0.27% $ 7,002.72 $ 6,348.21 $ 1,225.25 US Treasury 912828U57 US Treasury Note 2.13% 7/31/2019 1,000,000.00 1,011,875.00 11,875.00 11/30/2023 1.84% $ 92,083.33 $ 72,526.17 $ 7,759.79 FFCB 3133EJ3Q0 Gov. Agency Debenture 2.88% 8/28/2019 1,500,000.00 1,587,503.75 87,503.75 12/21/2023 2.12% $ 164,473.96 $ 87,804.46 $ 10,897.27 US Treasury 912828V23 US Treasury Note 2.25% 11/29/2021 1,000,000.00 1,032,933.04 32,933.04 12/31/2023 0.66% $ 46,956.52 $ 10,649.43 $ 3,390.13 US Treasury 91282CBE0 US Treasury Note 0.13% 9/15/2021 650,000.00 647,615.46 (2,384.54) 1/15/2024 0.28% $ 1,894.37 $ 3,281.18 $ 999.93 US Treasury 91282CBE0_2 US Treasury Note 0.13% 10/7/2021 1,000,000.00 994,768.98 (5,231.02) 1/15/2024 0.36% $ 2,839.67 $ 6,137.79 $ 1,935.69 FFCB 3133EKMX1 Gov. Agency Debenture 2.23% 8/2/2019 1,000,000.00 1,014,400.00 14,400.00 2/23/2024 1.90% $ 107,225.83 $ 74,902.07 $ 12,483.68 US Bancorp 91159HHV5 Corporate Bond 3.38% 12/24/2019 1,000,000.00 1,049,040.00 49,040.00 2/5/2024 2.12% $ 138,843.75 $ 76,859.43 $ 13,169.06 JP Morgan Chase 46625HJT8 Corporate Bond 3.88% 9/23/2019 1,400,000.00 1,485,414.00 85,414.00 2/1/2024 2.39% $ 236,288.89 $ 130,689.90 $ 20,515.28 FHLB 3130ALH98 Gov. Agency Debenture 0.25% 2/26/2021 1,000,000.00 997,610.00 (2,390.00) 2/26/2024 0.33% $ 7,500.00 $ 7,713.30 $ 2,176.70 FFCB 3133EMBE1 Gov. Agency Debenture 0.30% 10/8/2020 1,600,000.00 1,598,000.00 (2,000.00) 3/28/2024 0.34% $ 16,653.34 $ 14,655.57 $ 4,006.35 US Treasury 912828X70 US Treasury Note 2.00% 12/30/2019 1,000,000.00 1,010,589.29 10,589.29 4/30/2024 1.75% $ 86,703.30 $ 61,478.37 $ 14,672.07 Total Investments "Matured" $ 106,937.57
Total Interest FY 23_24 Matured and Current $ 1,705,926.69 Maturity Profile Amount Percent
0-1 year $ 28,061,525.05 42%
1-2 years $10,304,452.54 16%
2-3 years $8,431,640.53 13%
3-5 years $ 19,394,348.12 29%
$66,191,966.24 100%
Town of Los Gatos
Investment Schedule
April 30, 2024
5
ITEM NO. 3.
Date Cusip/Id Description Transaction Type
Settlement
Date Par Coupon Maturity Date Price Principal Interest
Transaction
Total
4/1/2024 3133ENP95
FEDERAL FARM CREDIT BANK 4.25%
30SEP2025 BOND INTEREST 4/1/2024 900,000 4.25% 9/30/2025 - - 19,125.00 19,125.00 4/1/2024 91282CEF4 USA TREASURY 2.5% 31MAR2027 BOND INTEREST 4/1/2024 1,500,000 2.50% 3/31/2027 - - 18,750.00 18,750.00 4/1/2024 91282CBT7 USA TREASURY 0.75% 31MAR2026 BOND INTEREST 4/1/2024 800,000.00 0.75% 3/31/2026 - - 3,000.00 3,000.00 4/1/2024 91282CGU9 USA TREASURY 3.875% 31MAR2025 BOND INTEREST 4/1/2024 1,000,000.00 3.88% 3/31/2025 - - 19,375.00 19,375.00 4/1/2024 437076BM3
HOME DEPOT INC 3% 01APR2026
(CALLABLE 01JAN26) BOND INTEREST 4/1/2024 1,000,000.00 3.00% 4/1/2026 - - 15,000.00 15,000.00 4/2/2024 Cash Cash-USD
SHORT TERM INVESTMENT
FUND INCOME 4/2/2024 384 0.00% 100.00 - - 384.33
4/29/2024 3130APJH9
FEDERAL HOME LOAN BANK 1.25%
28OCT2026 (CALLABLE 28JUL24) #0006 BOND INTEREST 4/28/2024 1,000,000 1.25% 10/28/2026 - - 5,000.00 5,000.00 4/30/2024 9128285M8 USA TREASURY 3.125% 15NOV2028 PURCHASE 4/30/2024 1,200,000 3.13% 11/15/2028 93.65 1,123,832.15 17,204.67 1,141,036.82 4/30/2024 91282CEN7 USA TREASURY 2.75% 30APR2027 BOND INTEREST 4/30/2024 1,300,000 2.75% 4/30/2027 - - 17,875.00 17,875.00 4/30/2024 91282CFU0 USA TREASURY 4.125% 31OCT2027 BOND INTEREST 4/30/2024 1,300,000 4.13% 10/31/2027 - - 26,812.50 26,812.50 4/30/2024 912828X70 USA TREASURY 2% 30APR2024 BOND INTEREST 4/30/2024 1,000,000 2.00% 4/30/2024 - - 10,000.00 10,000.00 4/30/2024 912828ZL7 USA TREASURY 0.375% 30APR2025 BOND INTEREST 4/30/2024 1,700,000 0.38% 4/30/2025 - - 3,187.50 3,187.50 4/30/2024 912828X70 USA TREASURY 2% 30APR2024 REDEMPTION 4/30/2024 1,000,000 2.00% 4/30/2024 100.00 1,000,000.00 - 1,000,000.00 Town of Los Gatos
Investment Transaction Detail
April 30, 2024
6
ITEM NO. 3.
Security Description Maturity Date Par/Shares S&P Rating Moody Rating Insight ESG Rating Environment Social Governance IBM CORP 3.0% 15MAY2024 5/15/2024 $ 1,000,000 A- A3 2 1 2 4 CATERPILLAR FIN SERVICES 2.85% 17MAY24 5/17/2024 $ 1,000,000 A A2 4 5 3 4 AMERICAN HONDA FINANCE 2.4% 27JUN2024 6/27/2024 $ 1,000,000 A- A3 3 3 3 3 HONEYWELL INTERNATIONAL 2.3% 15AUG2024 (CALLABLE 15JUL24) 8/15/2024 $ 1,000,000 A A2 4 3 4 4 PEPSICO INC 2.85% 24FEB2026 (CALLABLE 24NOV25) 2/24/2026 $ 1,000,000 A+ A1 2 2 2 3 HOME DEPOT INC. 3% 01APR2026 (CALLABLE 01JAN2026) 4/1/2026 $ 1,000,000 A A2 2 3 2 3 JPMORGAN CHASE & CO 3.2 15JUN2026 (CALLABLE 15MAR26) 6/15/2026 $ 500,000 A- A1 3 1 3 4 APPLE INC. 2.9% 12SEP2027 (CALLABLE 12JUN27) 9/12/2027 $ 1,300,000 AA+ Aaa 4 1 4 5 TOYOTA MOTOR CREDIT CORP 5.45% 10NOV2027 11/10/2027 $ 1,600,000 A+ A1 4 2 3 4 AMERICAN HONDA FINANCE 4.7% 12JAN2028 1/12/2028 $ 600,000 A- A3 3 3 3 3 PNC BANK NA 3.25% 22JAN2028 (CALLABLE 01 FEB28) 1/22/2028 $ 1,000,000 A A2 3 2 3 3 COLGATE-PALMOLIVE CO 4.6% 01MAR2028 (CALLABLE 01FEB28) 3/1/2028 $ 500,000 A+ Aa3 3 2 3 3 US BANCORP 4.548% 22JUL2028 (CALLABLE 22JUL27) 7/222028 $ 1,000,000 A A3 3 3 4 3 JPMORGAN CHASE & CO 4.851% 25JUL2028 (CALLABLE 25JUL28) 7/25/2028 $ 1,400,000 A- A1 3 1 3 4 Total/Average $ 13,900,000 3.1 2.3 2.9 3.6
*ESG ratings are from 1 to 5, with 1 as the highest rating and 5 as the lowest. All ratings are weighted by industry rankings, based on the importance of the category within the individual industry.
Town of Los Gatos
Insight ESG Ratings as of April 30, 2024
7
ITEM NO. 3.
Fund Schedule
Fund
Number Fund Description
Current
Revenue
Current
Expenditure
Transfer
In
Transfer
Out
GENERAL FUND
Non-Spendable:
Loans Receivable 159,000 - - - - - 159,000
Restricted Fund Balances:
Pension 1,400,163 - - - - - 1,400,163
Land Held for Resale 44,338 - - - - - 44,338
Committed Fund Balances:
Budget Stabilization 6,129,774 - - - - - 6,129,774
Catastrophic 6,129,775 - - - - - 6,129,775
Pension/OPEB 300,000 - - - - - 300,000
Measure G District Sales Tax 590,581 - - - - - 590,581
Assigned Fund Balances:
Open Space 410,000 - - - - - 410,000
Sustainability 140,553 - - - - - 140,553
Capital/Special Projects 10,359,577 - - - - - 10,359,577 Carryover Encumbrances 37,698 - - - - - 37,698
Compensated Absences 1,580,623 - - - - - 1,580,623
ERAF Risk Reserve 689,608 - - - - - 689,608
Council Priorities - Economic Recovery 1,556,614 - - - - - 1,556,614 Unassigned Fund Balances:
111 Other Unassigned Fund Balance Reserve (Pre YE distribution) - (951,295) 8,543,125 (3,428,569) - - 4,163,261 General Fund Total 29,528,304 (951,295) 8,543,125 (3,428,569) - - 33,691,565 * Interfund transfers and ARPA funding allocation to be performed as part of the fiscal year end closing entries.
Apr 2024
Prior Year
Carryforward
7/1/2023
Increase/
(Decrease)
July - Mar
Estimated Fund
Balance
4/30/2024*
8
ITEM NO. 3.
Fund Schedule
Fund
Number Fund Description
Current
Revenue
Current
Expenditure Transfer In
Transfer
Out
SPECIAL REVENUE
211/212 CDBG 166,653 - - - - - 166,653
222 Urban Runoff (NPDES) 629,843 62,715 29,996 (17,627) - - 704,927 231-236 Landscape & Lighting Districts 176,964 1,893 - - - - 178,857 251 Los Gatos Theatre 74,991 47,243 9,830 (5,378) - - 126,686 711-716 Library Trusts 530,173 64,094 - (2,849) - - 591,418 Special Revenue Total 1,578,624 175,945 39,826 (25,854) - - 1,768,541
CAPITAL PROJECTS
411 GFAR - General Fund Appropriated Reserve 21,725,837 (1,498,115) 82,050 (31,708) - - 20,278,064 412 Community Center Development - 866,281 - - - - 866,281 421 Grant Funded Projects (406,890) (196,967) 322,776 (54,425) - - (335,506) 461-463 Storm Basin Projects 3,218,331 171,469 2,080 - - - 3,391,880 471 Traffic Mitigation Projects 431,079 - 300 (300) - - 431,079 472 Utility Undergrounding Projects 3,438,996 21,600 - - - - 3,460,596 481 Gas Tax Projects 1,671,245 (354,977) 138,131 - - - 1,454,399 Capital Projects Total 30,078,598 (990,709) 545,337 (86,433) - - 29,546,793
INTERNAL SERVICE FUNDS
611 Town General Liability 212,022 (14,976) - (1,594) - - 195,452 612 Workers Compensation 514,813 (566,500) - (132,489) - - (184,176) 621 Information Technology 2,474,618 (10,704) 3,097 (29,409) - - 2,437,602 631 Vehicle & Equipment Replacement 2,413,719 723,003 - - - - 3,136,722 633 Facility Maintenance 927,700 219,425 6,933 (104,039) - - 1,050,019 Internal Service Funds Total 6,542,872 350,248 10,030 (267,531) - - 6,635,619 Trust/Agency
942 RDA Successor Agency (6,187,789) (1,665,933) (117) - - (7,853,839) Trust/Agency Fund Total (6,187,789) (1,665,933) - (117) - - (7,853,839) Total Town 61,540,609 9,138,318 (3,808,504) - - 63,788,679 * Interfund transfers and ARPA funding allocation to be performed as part of the fiscal year end closing entries.
Deposit Accounts of Interest:
111-23541 General Plan Update deposit account balance $697,897.51 111-23521 BMP Housing deposit account balance $4,021,280.60 Prior Year
Carryforward
7/1/2023
Increase/
(Decrease)
July - Mar
Apr 2024 Estimated Fund
Balance
4/30/2024*
9
ITEM NO. 3.
PREPARED BY: Daniel Keller
Facilities and Environmental Services Manager
__________________________________________________________________________________________ Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Finance Director, and Parks and Public Works Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 06/18/2024
ITEM NO: 4
DATE: June 3, 2024
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Execute a Second Amendment to Agreement for Services with H. A. Bowen Electric Inc. to Extend the Term through June 30, 2026 and Increase the Compensation Amount by $48,000 for a Total Agreement Amount Not to Exceed $145,335
RECOMMENDATION:
Authorize the Town Manager to execute a second amendment to Agreement for Services with H. A. Bowen Electric Inc. to extend the term through June 30, 2026 and increase the compensation amount by $48,000 for a total agreement amount not to exceed $145,335.
BACKGROUND:
On August 10, 2021, the Town entered into an Agreement for Services with H. A. Bowen Electric Inc. to provide on-call electrical services and repairs for Town facilities, emergencies, unforeseen infrastructure work, and downtown decorative lighting. The agreement was amended on February 1, 2022, and is set to expire on June 30, 2024.
DISCUSSION:
Staff recommends extending the agreement term through June 30, 2026, and adjusting the compensation amount not to exceed $145,335. This would allow for continued coverage for unforeseen electrical repairs, emergencies, after-hours response, and downtown decorative lighting repairs for the Town. The extension would provide continuous electrical service coverage and allow staff time to evaluate the agreement's scope of work to determine if a formal bid for a larger compensation amount is necessary for future electrical needs.
ITEM NO. 4.
PAGE 2 OF 2
SUBJECT: Authorize the Town Manager to Execute a Second Amendment to Agreement for Services with H. A. Bowen Electric Inc., to Extend the Term through June 30, 2026 and Increase the Compensation Amount by $48,000 for a Total Agreement Amount Not to Exceed $145,335
DATE: June 3, 2024
CONCLUSION:
Authorize the Town Manager to execute a Second Amendment to Agreement for Services with H. A. Bowen Electric Inc. to extend the term through June 30, 2026 and increase the compensation amount by $48,000 for a total agreement amount not to exceed $145,335.
FISCAL IMPACT:
The Adopted Fiscal Year (FY) 2024/25 Parks and Public Works Facilities Program Operating Budget includes sufficient funds to cover the contract amendment in the amount of $24,000 for FY 2024/25.
ENVIRONMENTAL ASSESSMENT:
This is a project as defined under CEQA and is Categorically Exempt (Section 15301) as a modification to an existing facility.
Attachment:
1. Second Amendment to Agreement for Services with Exhibit A (First Amendment and Original Agreement) and Exhibit B (New Proposal)
ITEM NO. 4.
H.A. Bowen Electrical Inc.
Second Amendment to Agreement for Consultant Services ATTACHMENT 1
SECOND AMENDMENT TO AGREEMENT
This SECOND AMENDMENT to AGREEMENT for SERVICES is dated for identification this 3 rd day of June 2024 and amends that certain First Amendment to Agreement for Consultant Services dated February 1, 2022, made by and between the Town of Los Gatos, ("Town,") and H.A. Bowen Electrical Inc. (“Service Provider”) and whose address is 2055 Williams Street, San Leandro, CA 94577.
RECITALS
A. Town and Service Provider entered into an Agreement for Services for On-call Electrical Services on August 10, 2021, (“Agreement”), a First Amendment to Agreement for Consultant Services on February 1, 2022, copies of which are attached hereto and incorporated by reference as Exhibit A to this Agreement.
B. Town desires to amend the Agreement to extend the term and time of performance and adjust the compensation.
AMENDMENT
1. 2.2 Term and Time of Performance is amended to read as follows:
This contract will remain in effect from August 10, 2021, and extend to June 30, 2026.
2. 2.6 Compensation is amended to read as follows:
Additional compensation for Service Provider’s professional services shall be increased as follows:
FY 2024/25 = $20,000 + $4,000 for unanticipated services = $24,000 FY 2025/26 = $20,000 + $4,000 for unanticipated services = $24,000 For a total agreement amount not to exceed $145,335 inclusive of all costs. Payment shall be based upon Town approval of each task as described in Exhibit B.
3. All other terms and conditions of the Agreement remain in full force and effect.
ITEM NO. 4.
H.A. Bowen Electrical Inc.
Second Amendment to Agreement for Consultant Services ATTACHMENT 1 IN WITNESS WHEREOF, the Town and Consultant have executed this Amendment.
Town of Los Gatos: Approved as to Consent:
_______________________________ ______________________________ Laurel Prevetti, Town Manager Rich Gallespie, Superintendent Department Approval:
_______________________________________
Nicolle Burnham
Director of Parks and Public Works
Approved as to Form: Attest:
______________________________ ______________________________ Gabrielle Whelan, Town Attorney Wendy Wood, CMC, Town Clerk
ITEM NO. 4.
Daniel Keller Rich Gillespie
Facilities & Enviromental Services Manager Project Manager Town of Los Gatos H.A. Bowen Electric, Inc.
41 Miles Ave. 2055 Williams St
Los Gatos, CA 95030 San Leandro, CA 94577
[email protected] [email protected]
PROJECT:
Scope of Work:
►
►
►
►
Sincerely,
Richard Gillespie
6/5/2024
Project Manager
2 Year Service Proposal- Town of Los Gatos
All work is assumed to take place during regular working hours.
Thank you for the opportunity to provide a price for the electrical portion of work on the above mentioned project.
Bowen Electric is a union contractor and a member of the NECA. Our scope of work is based on the following:
Proposal is for $20,000 for each year, for a total of $40,000. 7/1/2024 to 6/30/26 Standard non-emeregency service call response 24hrs.
Emergency service call response within 4hrs.
Thank you for your time in reviewing this proposal. Please feel free to contact me if you need any further information.
Final Price $ 40,000
EXHIBIT B
ITEM NO. 4.
1 of 2
H. A Bowen Electric – First Amendment to Agreement of Services
FIRST AMENDMENT TO AGREEMENT FOR SERVICES
This AMENDMENT TO AGREEMENT is dated for identification this 1 st day of February 2022
and amends that certain Agreement for Services dated August 10, 2021, made by and between the Town of Los Gatos, ("Town,") and the H.A. Bowen Electrical, Inc. (“Service Provider”).
RECITALS
A. Town and Consultant entered into an Agreement for Services on August 10, 2021 (“Agreement”), a copy of which is attached hereto and incorporated by reference as Attachment 1 to this Amendment.
B. Town desires to amend the Agreement for Servicesfor on-call electrical services to increase compensation for the Scope of Services for Fiscal Years: 2021/22, 2022/23, 2023/24.
AMENDMENT
2.6 Compensation is amended as described below:
1. Compensation shall amend to read.
FY 21/22: Not to exceed $11,100, plus $21,235 for unanticipated services = $32,335 FY 22/23: Not to exceed $11,100, plus $21,400 for unanticipated services = $32,500 FY 23/24: Not to exceed $11,100, plus $21,400 for unanticipated services = $32,500 Total agreement not to exceed $97,335)
(Prior agreement = $49,500 + Amendment = $97,335)
2. All other terms and conditions of the Agreement remain in full force and effect.
DocuSign Envelope ID: AD452524-3AFD-4968-803E-E33ECA3588CB
EXHIBIT A
ITEM NO. 4.
2 of 2
H. A Bowen Electric – First Amendment to Agreement of Services IN WITNESS WHEREOF, the Town and Consultant have executed this Amendment.
Town of Los Gatos Service Provider, by:
By: _______________________________ By: ______________________________ Laurel Prevetti, Town Manager
Recommended by:
_______________________________________
Matt Morley, Director of Parks and Public Works
Approved as to Form:
______________________________
Robert Schultz, Town Attorney
Attest:
______________________________
Shelley Neis, MMC, CPMC, Town Clerk
DocuSign Envelope ID: AD452524-3AFD-4968-803E-E33ECA3588CB 2/9/2022
2/11/2022
2/14/2022
2/14/2022
ITEM NO. 4.
Agreement for Services 2021-2024
H.A. Bowen Electric Page 1 of 8
AGREEMENT FOR SERVICES
THIS AGREEMENT is dated for identification this 10th day of August 2021, and is made by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and H.A. Bowen Electrical whose address is 2055 Williams Street, San Leandro, CA 94577. This Agreement is made with reference to the following facts.
I. RECITALS
1.1 Town sought quotations for the services described in this Agreement, and Service Provider was found to be the lowest responsible supplier for this purchase.
1.2 Service Provider represents and affirms that it is willing to perform the desired work pursuant to this Agreement.
1.3 Town desires to engage Service Provider to provide On-call Electrical Services.
1.4 Service Provider warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement. Service Provider acknowledges Town has relied upon these warranties to retain Service Provider.
II. AGREEMENT
2.1 Scope of Services. Service Provider shall provide services as described in that certain Proposal sent to the Town on July 15, 2021, which is hereby incorporated by reference and attached as Exhibit A.
2.2 Term and Time of Performance. The effective date of this Agreement shall begin upon execution and will continue through June 30, 2024 subject to appropriation of funds, notwithstanding any other provision in this agreement.
2.3 Compliance with Laws. The Service Provider shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Service Provider represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Service Provider to practice its profession. Service Provider shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos.
2.4 Sole Responsibility. Service Provider shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement.
DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3
ITEM NO. 4.
Agreement for Services 2021-2024
H.A. Bowen Electric Page 2 of 8
2.5 Information/Report Handling. All documents furnished to Service Provider by the Town and all reports and supportive data prepared by the Service Provider under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Service Provider in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Service Provider shall not make any of these documents or information available to any individual or organization not employed by the Service Provider or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Service Provider pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Service Provider in connection with other projects shall be solely at Town's risk, unless Service Provider expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Service Provider which is and has been confirmed in writing by Service Provider to be a trade secret of Service Provider.
2.6 Compensation. Compensation for services shall be:
FY 21/22: Not to exceed $11,100, plus $5,400 for unanticipated services = $16,500 FY 22/23: Not to exceed $11,100, plus $5,400 for unanticipated services = $16,500 FY 23/24: Not to exceed $11,100, plus $5,400 for unanticipated services = $16,500 For a total agreement amount not to exceed $49,500, inclusive of all costs. Payment shall be based upon Town approval of each task.
2.7 Billing. Billing shall be monthly by invoice within thirty (30) days of the rendering of the service and shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655
2.8 Availability of Records. Service Provider shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Service Provider shall make these records available to authorized personnel of the Town at the Service Provider offices during business hours upon written request of the Town.
DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3
ITEM NO. 4.
Agreement for Services 2021-2024
H.A. Bowen Electric Page 3 of 8
2.9 Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Service Provider. No portion of these services shall be assigned or subcontracted without the written consent of the Town.
2.10 Independent Contractor. It is understood that the Service Provider, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Service Provider may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Service Provider agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Service Provider shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Service Provider or is based on allegations of Service Provider's negligent performance or wrongdoing.
2.11 Conflict of Interest. Service Provider understands that its professional responsibilities are solely to the Town. The Service Provider has and shall not obtain any holding or interest within the Town of Los Gatos. Service Provider has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Service Provider warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Service Provider shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person Service Provider discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement Service Provider shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship.
2.12 Equal Employment Opportunity. Service Provider warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Service Provider nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3
ITEM NO. 4.
Agreement for Services 2021-2024
H.A. Bowen Electric Page 4 of 8
i. Service Provider agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage.
ii. Service Provider agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Service Provider shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Service Provider agrees that all certificates and endorsements are to be received and approved by the Town before work commences.
General Liability:
i. The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Service Provider; products and completed operations of Service Provider, premises owned or used by the Service Provider. ii. The Service Provider's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self-insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Service Provider's insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers.
iv. The Service Provider's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability.
3.2 All Coverages. Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk.
DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3
ITEM NO. 4.
Agreement for Services 2021-2024
H.A. Bowen Electric Page 5 of 8
3.3 Workers’ Compensation. In addition to these policies, Service Provider shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement.
Further, Service Provider shall ensure that all subcontractors employed by Service Provider provide the required Workers' Compensation insurance for their respective employees.
3.4 Indemnification. The Service Provider shall save, keep, hold harmless and indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Service Provider, or any of the Service Provider's officers, employees, or agents or any subcontractor.
IV. GENERAL TERMS
4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.
4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara.
4.3 Termination of Agreement. The Town and the Service Provider shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Service Provider shall deliver to the Town all plans, files, documents, reports, performed to date by the Service Provider.
In the event of such termination, Town shall pay Service Provider an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination.
4.4 Prevailing Wages. This project is subject to the requirements of Section 1720 et seq. of the California Labor Code requiring the payment of prevailing wages, the training of apprentices and compliance with other applicable requirements. Contractors and all subcontractors who perform work on the project are required to comply with these requirements. Prevailing wages apply to all projects over $1,000 which are defined as a “public work” by the State of California. This includes: construction, demolition, repair, alteration, maintenance and the installation of photovoltaic systems under a Power Purchase Agreement when certain conditions are met under Labor Code Section 1720.6. This include service and warranty work on public buildings and structures.
DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3
ITEM NO. 4.
Agreement for Services 2021-2024
H.A. Bowen Electric Page 6 of 8
4.4.1 The applicable California prevailing wage rate can be found at www.dir.ca.gov and are on file with the Town of Los Gatos Parks and Public Works Department, which shall be available to any interested party upon request. The contractor is also required to have a copy of the applicable wage determination posted and/or available at each jobsite.
4.4.2 Specifically, contractors are reminded of the need for compliance with Labor Code Section 1774-1775 (the payment of prevailing wages and documentation of such), Section 1776 (the keeping and submission of accurate certified payrolls) and 1777.5 in the employment of apprentices on public works projects. Further, overtime, weekend and holiday pay, and shift pay must be paid pursuant to applicable Labor Code section.
4.4.3 The public entity for which work is being performed or the California Department of Industrial Relations may impose penalties upon contractors and subcontractors for failure to comply with prevailing wage requirements. These penalties are up to $200 per day per worker for each wage violations identified; $100 per day per worker for failure to provide the required paperwork and documentation requested within a 10-day window; and $25 per day per worker for any overtime violation.
4.4.4 As a condition to receiving progress payments, final payment and payment of retention on any and all projects on which the payment of prevailing wages is required, the contractor agrees to present to the TOWN, along with its request for payment, all applicable and necessary certified payrolls (for itself and all applicable subcontractors) for the time period covering such payment request.
The term “certified payroll” shall include all required documentation to comply with the mandates set forth in Labor Code Section 1720 et seq, as well as any additional documentation requested by the Agency or its designee including, but not limited to: certified payroll, fringe benefit statements and backup documentation such as monthly benefit statements, employee timecards, copies of wage statements and cancelled checks, proof of training contributions (CAC2 if applicable), and apprenticeship forms such as DAS-140 and DAS-142.
4.4.5 In addition to submitting the certified payrolls and related documentation to the TOWN, the contractor and all subcontractors shall be required to submit certified payroll and related documents electronically to the California Department of Industrial Relations. Failure to submit payrolls to the DIR when mandated by the project parameters shall also result in the withholding of progress, retention and final payment.
4.4.6 No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
4.4.7 No contractor or subcontractor may be awarded a contract for public work on a public works project, unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Contractors MUST be a DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3
ITEM NO. 4.
Agreement for Services 2021-2024
H.A. Bowen Electric Page 7 of 8
registered “public works contractor” with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for maintenance work or less than $25,000 for construction alternation, demolition or repair work, registration is not required.
4.4.8 Should any contractor or subcontractors not be a registered public works contractor and perform work on the project, Contractor agrees to fully indemnify the TOWN for any fines assessed by the California Department of Industrial Relations against the TOWN for such violation, including all staff costs and attorney’s fee relating to such fine.
4.4.9 The TOWN shall withhold any portion of a payment; including the entire payment amount, until certified payroll forms and related documentation are properly submitted, reviewed and found to be in full compliance. In the event that certified payroll forms do not comply with the requirements of Labor Code Section 1720 et seq., the TOWN may continue to hold sufficient funds to cover estimated wages and penalties under the contract.
4.5 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Service Provider.
4.6 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal.
4.7 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to:
Town of Los Gatos
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
H.A. Bowen Electrical
2055 Williams Street,
San Leandro, CA 94577
or personally delivered to Service Provider to such address or such other address as Service Provider designates in writing to Town.
4.8 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect of the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings.
4.9 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and exclusive statement of the Agreement between the Town and Service Provider. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party.
DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3
ITEM NO. 4.
Agreement for Services 2021-2024
H.A. Bowen Electric Page 8 of 8
IN WITNESS WHEREOF, the Town and Service Provider have executed this Agreement.
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Matt Morley, Director of Parks and Public
Works
H.A. Bowen Electrical by:
Title
Approved as to Form:
_____________________________________
Robert Schultz, Town Attorney
Attest:
______________________________________
Shelley Neis, MMC, CPMC, Town Clerk
DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3 8/31/2021
Superintendent
9/1/2021
9/2/2021
9/2/2021
9/2/2021
ITEM NO. 4.
July 15, 2021
Request for Quotes:
On call and Electrical Services for the Town of Los Gatos.
The Town of Los Gatos is seeking Electrical Services for both on-call emergency and planned repairs for Town facilities. All work for the Town requires prevailing wage and registration with the State Department of Industrial Relations (DIR).
Please provide hourly rate and cost information below:
Journeyman Regular time ___________ Overtime ___________ Apprentice Regular time ___________ Overtime ___________ Call – out minimum charge ___________
Vehicle charge ___________
Materials mark-up ___________
Rental equipment mark-up ___________
Company Name ____________________________________________ Address ____________________________________________
License # ____________________________________________
Contact Name ____________________________________________ Email ____________________________________________
Phone ____________________________________________
Send to:
Dan Keller, Facilities & Environmental Services Manager Parks & Public Works Dept. - Town of Los Gatos
[email protected]
41 Miles Ave, Los Gatos, CA 95030
(408) 395-5310
EXHIBIT A 384915 (510)385-1712 [email protected] Richard Gillespie 2055 Williams Street H.A. Bowen Electric Inc. 20% 20% 302 HR 135 220 180 290 DocuSign Envelope ID: 1650CD9B-C8BB-4ED6-9B5F-153D4C9CBAE3
ITEM NO. 4.
PREPARED BY: Ryan Baker
Library Director
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 06/18/2024
ITEM NO: 5
DATE: June 3, 2024
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Execute a Lease Agreement with the Friends of the Los Gatos Library for the Property Located at 108 E. Main St.
RECOMMENDATION:
Authorize the Town Manager to execute a Lease Agreement with the Friends of the Los Gatos Library for the property located at 108 E. Main St.
BACKGROUND:
The Friends of the Los Gatos Library (Friends) are a 501c3 non-profit organization with the dedicated mission of supporting the Los Gatos Library through funding for programs and events. The Friends support their mission with an annual cash donation to the Town stipulated for Library programs, services, and program not covered by General Fund dollars. The donation amount varies each year and has not been less than $70,000 each year for the past seven years; however, this amount is not guaranteed as the actual amount it tied to the success of their fundraising for each year.
The primary source of fundraising is generated through the operation of the Friends Bookstore.
The Friends have been operating the Friends Bookstore at 108 East Main St in the Civic Center Complex as a tenant of the Town since July of 2015. This lease set the actual “rent” as $1 per year with the understanding that the Friends would make a cash donation to the Town for Library services of a minimum of $35,000 per year.
DISCUSSION:
The original 2015 lease agreement expired in June of 2023, at which point the Friends operated as a month-to-month tenant per stipulations of that original agreement. Staff recommends
ITEM NO. 5.
PAGE 2 OF 2
SUBJECT: Authorize the Town Manager to execute a Lease Agreement with the Friends of the Los Gatos Library for the Property Located at 108 E. Main St.
DATE: June 3, 2024
DISCUSSION (continued):
that the Town and the Friends enter into a new lease agreement (Attachment 1). The new agreement is relatively similar to the original with general changes and updates consistent with other current Town lease agreements, updated insurance specifications, and current conventions.
Top level points of the lease include:
Five-year lease expiring April 30, 2029.
Option to extend the lease for two additional five-year periods. 90-day termination option by the Town.
$1 rent per year with minimum donation commitment of $35,000 per year. Use of the 1,860-square foot property as a retail new and used bookstore. Friends to determine hours of operation at their discretion. Friends to pay for utility usage based on the square footage of the property. Friends to hire and maintain their own custodial services.
With regard to insurance, the Town usually requires at least $2M in commercial general liability insurance from its tenants and contractors. However, the Friends of the Los Gatos Library is a non-profit and was only able to obtain $1M in commercial general liability insurance. Staff is recommending that the Town Council accept the lower limits on the basis that the Friends are a non-profit and are providing the maximum amount of insurance available to them. The new lease has been reviewed by the Friends and was approved to enter into the agreement by their Board on June 5, 2024.
COORDINATION:
This item was coordinated with the Library, the Town Attorney, Town Manager’s Office, and the Friends of the Los Gatos Library.
FISCAL IMPACT:
This lease continues a current lease arrangement and has no expected change in fiscal impact.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachment:
1. Lease Agreement Between Town of Los Gatos and Friends of the Los Gatos Library
ITEM NO. 5.
Page i of ii
LEASE AGREEMENT
BETWEEN
TOWN OF LOS GATOS
AND
FRIENDS OF THE LOS GATOS PUBLIC LIBARY
TABLE OF CONTENTS
LEASE PROVISIONS
1. PREMISES. ....................................................................................................................... 1
2. TERM................................................................................................................................. 1
3. RENT. ................................................................................................................................ 2
4. FUNDING COMMITMENT. .......................................................................................... 2
5. USE OF PREMISES AND OPERATING HOURS. ...................................................... 2
6. UTILITIES AND OPERATING EXPENSES. .............................................................. 3
7. TAXES. .............................................................................................................................. 4
8. MAINTENANCE. ............................................................................................................. 4
9. CASP INSPECTION. ....................................................................................................... 5
10. AMERICANS WITH DISABILITIES ACT. ................................................................. 6
11. TENANT IMPROVEMENTS. ........................................................................................ 6
12. ALTERATIONS BY LESSEE ......................................................................................... 7
13. HOLD HARMLESS/INDEMNIFICATION. ................................................................. 7
14. DAMAGE, DESTRUCTION AND TERMINATION. .................................................. 7
15. SIGNS AND MARKETING. ........................................................................................... 8
16. ASSIGNMENT AND SUBLETTING. ............................................................................ 8
17. DEFAULTS; REMEDIES................................................................................................ 9
18. INTEREST ON PAST-DUE OBLIGATIONS. ............................................................ 10
19. HOLDING OVER. .......................................................................................................... 11
20. TOWN’S ACCESS.......................................................................................................... 11
21. INSURANCE. .................................................................................................................. 11
22. DISPUTE RESOLUTION.............................................................................................. 12
23. NON-LIABILITY OF OFFICIALS AND EMPLOYEES OF THE TOWN. ........... 12
24. NON-DISCRIMINIATION. .......................................................................................... 12 DRAFT
ATTACHMENT 1
ITEM NO. 5.
Page ii of ii
25. INDEPENDENT CONTRACTOR................................................................................ 13
26. CONFLICT OF INTEREST. ......................................................................................... 13
27. ESTOPPEL CERTIFICATE. ........................................................................................ 13
28. LIENS............................................................................................................................... 13
29. VACATING. .................................................................................................................... 14
30. ABANDONMENT. ......................................................................................................... 14
31. NOTICES......................................................................................................................... 14
32. TIME. ............................................................................................................................... 14
33. AMENDMENTS. ............................................................................................................ 14
34. SIGNING AUTHORITY................................................................................................ 15
35. CAPTIONS. ..................................................................................................................... 15
36. SURRENDER OF LEASE NOT MERGER. ............................................................... 15
37. INTEGRATED DOCUMENT. ...................................................................................... 15
38. WAIVER. ......................................................................................................................... 15
39. INTERPRETATIONS. ................................................................................................... 15
40. SEVERABILITY CLAUSE. .......................................................................................... 16
41. GOVERNING LAW. ...................................................................................................... 16
42. VENUE............................................................................................................................. 16
43. COMPLIANCE WITH LAWS. ..................................................................................... 16
44. BROKERS. ...................................................................................................................... 16
45. ATTACHMENTS TO LEASE. ..................................................................................... 16
EXHIBITS
A DESCRIPTION OF SUBJECT PREMISES .................................................................... 18 B STANDARD INSURANCE REQUIREMENTS .............................................................. 20
ITEM NO. 5.
1 LEASE AGREEMENT
BETWEEN
TOWN OF LOS GATOS
AND
FRIENDS OF THE LOS GATOS PUBLIC LIBRARY
This lease agreement (herein "Lease") is made and entered into______, 2024, by and between the Town of Los Gatos, a California municipal corporation (herein "Town") and Friends of the Los Gatos Public Library, a California nonprofit corporation (herein "Lessee"). Town and Lessee may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Lease." The Town Manager serves as Contract Administrator for this Lease on behalf of the Town Council.
In consideration of these recitals and the following covenants, terms, and conditions, Lessee and Town mutually agree as follows:
LEASE PROVISIONS
1. PREMISES.
Town hereby leases to Lessee, certain real property located in the Town of Los Gatos, County of Santa Clara, State of California, commonly known as 108 E. Main Street (herein the "Premises") and more particularly described in Exhibit A attached hereto and incorporated herein by reference. The Premises consists of approximately one thousand eight hundred and sixty (1,860) square feet of space for retail book sales. Unless specifically provided, Lessee accepts the Premises “as-is” on the date of execution of this Lease.
2. TERM.
2.1 Original Term. The term of this Lease shall be for five (5) years, commencing on ______, 2024 ("Delivery Date") and ending on April 30, 2029. Lessee shall, at the expiration of the term of this Lease, or upon its earlier termination, surrender the Premisesin as good condition as it is now at the date of this lease. The Parties expect reasonable wear and tear.
2.2 Option to Extend. Provided Lessee is not in default hereunder, either at the time of exercise or at the time the extended term commences, Lessee shall have the option to extend the initial term of this Lease for two (2) additional periods of five (5) years (“Option Period”) with the same terms, covenants and conditions provided herein by letter agreement. Lessee’s option shall be exercised by Lessee providing Town with request for an extension in writing no less than sixty (60) days prior to the expiration of the then current term.
Early Termination by Town. If Town in its sole discretion determines that it requires the Premises for any public purpose, Town may terminate this Lease upon ninety (90) days written notice.
ITEM NO. 5.
2 3. RENT.
3.1 Base Rent. The rent to be paid by Lessee shall be in the amount of One Dollar ($1.00) per year.
3.2 Payment Date. Rent shall be payable on the first day of ____ commencing on the Delivery Date, and each _____ 1st thereafter during the term of the Lease and any Lease extension at Town Hall Finance Department.
4. FUNDING COMMITMENT.
Lessee shall be obligated to contribute a minimum of $35,000 to Town on an annual basis based on proceeds from the Lessee’s efforts to support the Town of Los Gatos Public Library as established in Lessee’s Library Trust Fund account. All funds paid by the Friends of the Los Gatos Public Library per the funding commitment will be used as enhancements to the Library budget and are not intended to offset the general fund contributions to the Library budget. All payments shall be made payable annually to the Town the day after the second Town Council meeting in August. The Town will provide an opportunity for the Friends of the Los Gatos Public Library to ceremonially present the contribution at a regular meeting of the Town Council in August.
5. USE OF PREMISES AND OPERATING HOURS.
5.1 Required Uses. Throughout the term of this Lease, Lessee shall provide the following uses, services and activities (“Required Uses”):
5.1.1 Uses consistent with Lessee’s business purposes which includes retail sales of used and new books, ancillary items (cards, t-shirts, paper, and similar products), and museum merchandise.
5.1.2 1,860 square feet of space on the upper level of the old Town of Los Gatos Library located at 108 Main Street, Los Gatos, CA, as shown on Exhibit A.
5.1.3 Lessee may request to reserve the conference room once a month in the new public library and the outdoor Town deck adjacent to Lessee’s space in accordance with the Town’s Facility Use Policy
5.2 Hours of Operations.
5.2.1 Public Hours. Lessee may set reasonable hours of operation.
ITEM NO. 5.
3 5.2.2 Special Events. Lessee shall be obligated to apply for a Special Events Permit in accordance with Town rules and regulations and pay all associated costs and fees for any event that meets the criteria set forth by Town Code. Alcohol (beer & wine only) may be allowed in conjunction with approval of a Special Events Permit, subject to all regulations required by the Los Gatos Police Department. For those events that do not meet the criteria requiring a Special Event Permit, but do impact parking at the Civic Center, Lessee shall coordinate with the Town Manager’s office to avoid conflicts during business hours or when Town events or meetings are scheduled.
5.3 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted hereunder. Lessee shall not create, cause, maintain or permit any nuisance or waste in, on, or about the Premises, or permit or allow the Premises to be used for any unlawful or immoral purpose. Lessee shall not do or permit to be done anything in any manner which unreasonably disturbs the users of the Town Property or the occupants of neighboring property. Specifically, and without limiting the above, Lessee agrees not to cause any unreasonable odor, noise, vibration, power emission, or other item to emanate from the Premises. No materials or articles of any nature shall be stored outside upon any portion of the Premises. Lessee will not use Premisesin a manner that increases the risk of fire, cost of fire insurance or improvements thereon. No unreasonable sign or placard shall be painted, inscribed or placed in or on said Premises; and no tree or shrub thereon shall be destroyed or removed or other waste committed of said Premises. No bicycles, motorcycles, automobiles or other mechanical means of transportation shall be placed or stored anywhere on the Premises. No repair, overhaul or modification of any motor vehicle shall take place on the Premises or the street in front of said Premises. Lessee, at his/her expense, shall keep the Premises in as good condition as it was at the beginning of the terms hereof, except damage occasioned by ordinary wear and tear, and except damage to the roof, sidewalks and underground plumbing, which is not the fault of Lessee.
5.4 Condition, Use of Premises. Town makes no warranty or representation of any kind concerning the condition of the Premises, or the fitness of the Premises for the use intended by Lessee, and hereby disclaims any personal knowledge with respect thereto, it being expressly understood by the parties that Lessee has personally inspected the Premises, knows its condition, finds it fit for Lessee’s intended use, accepts it as is, and has ascertained that it can be used exclusively for the limited purposes specified in Section 5.1.
5.5 Parking. Town will provide Olive Zone parking to Lessee for their volunteers.
5.6 Coordination with Town. Lessee shall schedule, attend, and fully participate in annual meetings with Town Manager and/or Manager’s designee to address any and all conditions of this Agreement or any other matter which arises in conjunction with the use of the Premises. Lessee shall also be required to participate in Town Emergency Preparedness training and exercises.
6. UTILITIES AND OPERATING EXPENSES.
ITEM NO. 5.
4 6.1 Lessee Obligations. Lessee at Lessee’s sole expense shall fully and promptly pay for all expenses associated with the operation of the Premises, including but not limited to the furnishing of gas, water, sewer, electricity, telephone service, garbage pickup and disposal, other public utilities and custodial service. Lessee shall be obligated to pay a pro-rated share based on square footage for gas, water, sewer, electricity, garbage service and other public utilities provided by or through the Town. Lessee shall be obligated to pay their own direct costs for telephone, technology, audio-visual, custodial or other specialized services, including any initial costs for those services. Town shall maintain all exterior landscaping.
6.2 Custodial Services. Lessee at Lesses’s sole expense shall fully maintain and pay for all custodial services to maintain the interior premises in a clean and safe manner. All vendors for custodial services shall be bonded, insured, and the Town named as an additional insured.
Proof of bond and insurance including the additional insured certificate shall be provided to Town prior to any custodial services being performed.
7. TAXES.
7.1 Payment of Real Property Taxes. Town shall pay Lessee’s share of all real property taxes which become due and payable.
7.2 Revenue and Taxation Code. Lessee specifically acknowledges it is familiar with section 107.6 of the California Revenue and Taxation Code. Lessee realizes that a possessory interest subject to property taxes may be created, agrees to pay any such tax, and hereby waives any rights Lessee may have under said California Revenue and Taxation Code section 107.6.
7.3 Personal Property Taxes. Lessee shall pay before delinquent, or if requested by Town, reimburse Town for, any and all taxes, fees, and assessments associated with the Premises, the personal property contained in the premises and other taxes, fees, and assessments regarding any activitieswhich take place at thePremises. Lessee recognizes and understands in accepting this Lease that its interest therein may be subject to a possible possessory interest tax that Town or County may impose on such interest and that such tax payment shall not reduce any rent due Town hereunder and any such tax shall be the liability of and be paid by Lessee.
8. MAINTENANCE.
8.1 Town and Lessee Responsibilities. Lessee at Lessee’s expense, shall perform all interior maintenance and repairs, including all painting, necessary to keep the Premises in good order, repair, and condition, and shall keep the Premises in a safe, clean, and sanitary condition to the complete satisfaction of Town, and in compliance with all applicable laws, throughout the term of this Lease. In addition, Lessee shall maintain, at Lessee’s expense, all equipment, furnishings and trade fixtures upon the Premisesrequired for the maintenance and operation of public services of the type to be conducted pursuant to this Lease. Routine
ITEM NO. 5.
5 interior plumbing and electrical maintenance (e.g., plugged toilets/sinks, faulty switches/lights) will be the responsibility of the Lessee. Town shall be responsible for the routine maintenance and repair of the exterior structure of the Premises and main support systems, including roof repair, exterior painting and structural repairs, excluding any maintenance or repairs resulting from Lessee’s actions or activities. Windows broken or cracked will be the responsibility of the Town, excluding broken windows resulting from Lessee’s actions or activities.
8.2 Waiver of Civil Code. Lessee expressly waives the benefit of any statute now or hereinafter in effect, including the provisions of sections 1941 and 1942 of the Civil Code of California, which would otherwise afford Lessee the right to make repairs at Town’s expense or to terminate this Lease because of Town’s failure to keep Premises in good order, condition and repair. Lessee further agrees that if and when any repairs, alterations, additions or betterments shall be made by Lessee as required by this paragraph, Lessee shall promptly pay for all labor done or materials furnished and shall keep the Premises free and clear of any lien or encumbrance of any kind whatsoever. If Lessee fails to make any repairs or perform any maintenance work for which Lessee is responsible within a reasonable time (as determined by the Town Manager in the Town Manager’s sole discretion) after demand by the Town, Town shall have the right, but not the obligation, to make the repairs at Lessee’s expense; within ten (10) days of receipt of a bill, Lessee shall reimburse Town for the cost of such repairs, including a fifteen percent (15%) administrative overhead fee. The making of such repairs or performance of maintenance by Town shall in no event be construed as a waiver of the duty of Lessee to make repairs or perform maintenance as provided in this Section.
8.3 Maintenance of Common Areas. Town shall maintain or cause to be maintained, including repair and replacement as necessary, the exterior grounds, exterior shared deck, and the parking lot adjacent to the Premises. If Lessee uses the shared deck for activities or a special event, Lessee shall promptly remove allstructures, fixtures, accessories, decorations and trash associated with the activity or event.
9. CASP INSPECTION.
Landlord states that the Premises have not been inspected by a Certified Access Specialist (CASp). Accordingly, this notice is provided by Landlord pursuant to California Civil Code Section 1938:
“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or Landlord may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp
ITEM NO. 5.
6 inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of the construction-related accessibility standards within the premises.”
Unless otherwise expressly stated in this Lease and subject to the terms of this Lease: (a) Lessee may elect at any time to perform a CASp inspection of the Premises at Lessee’s expense; (b) any repairs or modifications necessary to correct violations of applicable construction-related accessibility standards within or about the Premises are the responsibility of Lessee; and (c) any construction-related accessibility improvements by Lessee or alterations of or improvements to the Premises are the responsibility of the Lessee.
10. AMERICANS WITH DISABILITIES ACT.
Throughout the term of the Lease, Lessee acknowledges and expressly accepts full responsibility and shall incur all costs and expenses (whether structural or non-structural in nature) for compliance with the requirements of the Americans with Disabilities Act (ADA) and any other law regarding the accessibility of the Premises (and the improvements located or to be located thereon) by disabled individuals. Lessee agrees to release, indemnify, defend and hold harmless Landlord (and its officials, officers, directors, employees, agents, representatives, volunteers, contractors, successors and assigns) from and against any claim, loss, expense or liability arising from Lessee’s failure to fully comply with all such applicable laws and/or this Section 10 (Americans with Disabilities Act).
11. TENANT IMPROVEMENTS.
11.1 Improvements Permitted. Subject to prior written approval of the Town Manager, which shall not be unreasonably withheld, Lessee shall be entitled to install improvements in an efficient and workmanlike manner within the Premises, at no cost to Town. All costs of plans, improvements, and permits shall be the sole responsibility of the Lessee. All structural improvements and improvements in excess of $5,000 must be approved in writing by the Town Manager.
11.2 Cost of Improvements. All tenant improvements shall be made at Lessee’s sole expense.
11.3 Ownership of Improvements. All improvements constructed, erected, or installed upon the Premises must be free and clear of all liens, claims, or liability for labor or material and shall become the property of Town, at its election, upon expiration or earlier termination of this lease and upon Town's election, shall remain upon the Premises upon termination of this Lease. Title to all free standing equipment, furniture, furnishings, and trade fixtures placed by Lessee upon the Premises shall remain in Lessee’s ownership, and replacements, substitutions and modifications thereof may be made by Lessee throughout the term of this Lease.
11.4 Indemnity for Claims Arising Out of Construction. Lessee shall defend and indemnify
ITEM NO. 5.
7 Town against all claims, liabilities, and losses of any type arising out of work performed on the Premises by Lessee, together with reasonable attorneys' fees and all costs and expenses reasonably incurred by Town in negotiating, settling, defending or otherwise protecting against such claims.
11.5 Certificate of Inspection. Upon completion of construction of any building, Lessee shall submit to the Town Manager a Certificate of Inspection, verifying that the construction was completed in conformance with Title 20 of the California Code of Regulations for residential construction, or in conformance with Title 24 of the California Code of Regulations for non-residential construction.
11.6 As Built Plans. Lessee shall provide the Town Manager with a complete set of reproducible “as built plans” reflecting actual construction within or upon the Premises upon completion of any: (i) new construction; (ii) structural alterations; or, (iii) non-structural alterations costing more than $25,000.
12. ALTERATIONS BY LESSEE
Lessee shall not make any alterations or improvements to the Premises without obtaining the prior written consent of the Town Manager. Lessee may, at any time and at its sole expense, install and place business fixtures and equipment within the Premises, provided such fixtures and installation have been reviewed and approved by the Town Manager.
13. HOLD HARMLESS/INDEMNIFICATION.
13.1 Indemnification. To the fullest extent permitted by law, Lessee agrees to protect, defend, hold harmless and indemnify Town, its Town Council, commissions, officers, agents, volunteers, and employees from and against any claim, injury, liability, loss, cost, and/or expense or damage, however same may be caused, including all costs and reasonable attorney's fees in providing a defense to any claim arising therefrom for which Town shall become legally liable arising from Lessee's negligent, reckless, or wrongful acts, errors, or omissions with respect to or in any way connected with this Lease. Lessee shall give Town immediate notice of any claim or liability hereby indemnified against. This indemnity shall be in addition to the Hazardous Materials indemnity contained in this Lease and shall survive shall survive the expiration of or early termination of the Lease Term.
13.2 Waiver of Claims. Lessee waives any claims against Town for injury to Lessee’s business or any loss of income therefrom, for damage to Lessee’s property, or for injury or death of any person in or about the Premises or the Town Property, from any cause whatsoever, except to the extent caused by Town’s active negligence or willful misconduct.
14. DAMAGE, DESTRUCTION AND TERMINATION.
14.1 Force Majeure. Prevention, delay or stoppage due to strikes, lockouts, labor disputes, Acts of God, inability to obtain labor, inability to obtain materials or reasonable substitutes, governmental restrictions, governmental regulation, governmental controls, judicial orders,
ITEM NO. 5.
8 enemy or hostile governmental actions, civil commotion, fire or other casualty, and other causes beyond the reasonable control of Lessee (financial inability excepted), shall excuse the performance by Lessee for a period equal to the prevention, delay, or stoppage, except the obligations imposed with regard to rent to be paid by Lessee pursuant to this Lease. In the event any work performed by Lessee or Lessee’s contractors results in a strike, lockout, and/or labor dispute, the strike, lockout, and/or labor dispute shall not excuse the performance by Lessee of the provisions of this Lease.
14.2 Restoration of Premises Termination . If, during the term of the Lease, the Premises are totally or partially destroyed, rendering the Premises totally or partially inaccessible or unusable, Lessor may restore the Premises to substantially the same condition as it was in immediately before destruction, whether or not the insurance proceeds are sufficient to cover the actual cost of restoration. Either party can also choose to terminate this Lease by giving reasonable notice to the other party.
15. SIGNS AND MARKETING.
15.1 Lessee shall not place, construct, maintain, or allow any signs affixed to the building or to the exterior of the Premises without prior written consent of the Town following Town Council review and approval. Lessee shall submit an application to the Community Development Department and, be obligated to pay all costs associated with any application process required to obtain approval for any signs.
15.2 Lessee shall not place, construct, maintain, or allow any other signs, including minor ones, visible to the exterior of the Premises without prior written consent of the Town Manager. Lessee shall submit an application to the Community Development Department and, be obligated to pay all costs associated with any application process required to obtain approval for any signs. Exterior or otherwise visible signage shall be subject to the Town’s naming policy and donation policy.
15.3 Town shall include references to Lessee on signs and marketing programs prepared by or for Town in association with Lessee’s operations on the Premises.
16. ASSIGNMENT AND SUBLETTING.
16.1 Town's Consent Required. Lessee shall not assign this Lease, nor any interest therein, and shall not sublet or encumber the Premises or any part thereof, nor any right or privilege appurtenant thereto, nor allow or permit any other person(s) to occupy or use the Premises, or any portion thereof, without the prior written consent of Town. This Lease shall be binding upon any permitted assignee or successor of Lessee. Consent by Town to one assignment, subletting, occupation or use by another person shall not be deemed to be consent to any subsequent assignment, subletting, occupation or use by another person. No assignment, subletting, or encumbrance by Lessee shall release it from or in any way alter any of Lessee's obligations under this Lease. Lessee may have the Premises delivered to a subsidiary company of Lessee, but such arrangement shall in no way alter Lessee's
ITEM NO. 5.
9 responsibilities hereunder with respect to the Premises. Any assignment, subletting, encumbrances, occupation, or use contrary to the provisions of this Lease shall be void and shall constitute breach of this Lease. Town may assign any of its rights hereunder without notice to Lessee.
16.2 No Release of Lessee. No subletting or assignment as approved by Town shall release Lessee of Lessee’s obligation or alter the primary liability of Lessee to pay the rent and to perform all other obligations by Lessee hereunder. The acceptance of rent by Town from any other person shall not be deemed to be a waiver by Town of any provision hereof. In the event of default by any assignee of Lessee or any successor of Lessee in the performance of any of the terms hereof, Town may proceed directly against Lessee without the necessity of exhausting remedies against said assignee.
17. DEFAULTS; REMEDIES.
17.1 Defaults. The occurrence of any one or more of the following events shall constitute a material default, or breach of this Lease, by Lessee:
17.1.1 Abandonment of the Premises by Lessee as defined by California Civil Code section 1951.3;
17.1.2 Failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as provided in this Lease, where such failure shall continue for a period of ten (10) business days after written notice thereof from Town to Lessee. In the event Town serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes, such Notice to Pay Rent or Quit shall also constitute the notice required by this subparagraph;
17.1.3 Failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease in any material respect where such failure shall continue for a period of thirty (30) days after written notice thereof from Town to Lessee; provided, however, that if the nature of Lessee’s default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion;
17.1.4 Making by Lessee of any general arrangement or assignment for the benefit of creditors; Lessee’s becoming a “debtor” as defined in 11 U.S.C. §101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); the appointment of a bankruptcy trustee or receiver to take possession of all or substantially all of Lessee’s assets located at or on the Premises or of Lessee’s interest in this Lease where possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other judicial seizure of all or substantially all of Lessee’s assets located at or on the Premises or of Lessee’s interest in this Lease, where such seizure is not discharged within thirty (30) days.
ITEM NO. 5.
10 17.1.5 Failure to make the Funding Commitment payments as required under this Lease Agreement for a period of six (6) months or more.
17.2 Remedies. In the event of any material default or breach by Lessee, Town may at any time thereafter, following any notice required by statute, and without limiting Town in the exercise of any right or remedy which Town may have by reason of such default or breach:
17.2.1 Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises and Improvements to Town. In such event, Town shall be entitled to recover from Lessee all damages incurred by Town by reason of Lessee’s default including but not limited to: the cost of recovering possession of the Premises and Improvements; expenses of reletting, including necessary renovation and alteration of the Premises and Improvements; reasonable attorneys’ fees; the worth at the time of the award of the unpaid rent that had been earned at the time of termination of this Lease and the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably avoided.
17.2.2 Maintain Lessee’s right to possession, in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event, Town shall be entitled to enforce all of Town’s rights and remedies under this Lease, including the right to recover rent and other payments as they become due hereunder.
17.2.3 Pursue any other remedy now or hereafter available to Town under the laws or judicial decisions of the State of California. Town shall have all remedies provided by law and equity.
17.3 No Relief from Forfeiture After Default. Lessee waives all rights of redemption or relief from forfeiture under California Code of Civil Procedure sections 1174 and 1179, and any other present or future law, in the event Lessee is evicted or Town otherwise lawfully takes possession of the Premises by reason of any default or breach of this Lease by Lessee.
17.4 Disposition of Abandoned Personal Property. If the Lessee fails to remove any personal property belonging to Lessee from the Premises after forty-five (45) days of the expiration or termination of this Lease, such property shall at the option of Town be deemed to have been transferred to Town. Town shall have the right to remove and to dispose of such property without liability to Lessee or to any person claiming under Lessee, and the Town shall have no need to account for such property.
18. INTEREST ON PAST-DUE OBLIGATIONS.
Except as expressly provided herein, any amount due Town when not paid when due shall bear interest at the lesser of ten percent (10%) per year or the maximum rate then allowable by law from
ITEM NO. 5.
11 the date due.
19. HOLDING OVER.
If Lessee remains in possession of the Premises or any part thereof after the expiration of the term or option term hereof, such occupancy shall be a tenancy from month to month with all the obligations of this Lease applicable to Lessee and at a monthly rental obligation at the market rate in effect at the time of expiration. Nothing contained in this Lease shall give to Lessee the right to occupy the Premises after the expiration of the term, or upon an earlier termination for breach.
20. TOWN’S ACCESS.
20.1 Access for Inspection. Town and Town’s agents shall have the right to enter the Premises at reasonable times, upon not less than twenty-four (24) hours prior notice to Lessee, for the purpose of inspecting same, showing same to prospective purchasers, lenders or lessees, and making such alterations, repairs, improvements, or additions to the Premises as Town may deem necessary.
20.2 Intentionally omitted
20.3 New Locks. Lessee may not install new locks on any doors without the express written consent of the Town. Lessee shall advise Town of such action and shall provide Town with keys to said locks. Lessee shall also deliver to Town the old locks with keys. Upon termination, Lessee shall leave new locks that shall become the property of Town.
21. INSURANCE.
Lessee shall purchase and maintain in full force and effect during the entire term of this Lease insurance coverage in amounts and in a form acceptable to Town as set forth in Exhibit B attached hereto and incorporated herein by reference.
Lessee shall be responsible for all losses incurred for any reason of its personal property or contents on Premises. Lessee may want to consider securing renter's liability insurance.
Lessee shall deposit with the Town Manager, on or before the effective date of this Lease, certificates of insurance necessary to satisfy Town that the insurance provisions of this Lease have been complied with, and to keep such insurance in effect and the certificates therefore on deposit with Town during the entire term of this Lease. Should Lessee not provide evidence of such required coverage at least three (3) days prior to the expiration of any existing insurance coverage, Town may purchase such insurance, on behalf of and at the expense of Lessee to provide six months of coverage.
Town shall retain the right at any time to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of the Town’s Risk Manager (or comparable official), the insurance provisions in this Lease do not provide adequate protection for Town and for members of the public using the Premises, the Town Manager may require Lessee to obtain insurance sufficient
ITEM NO. 5.
12 in coverage, form, and amount to provide adequate protection as determined by the Risk Manager.
Town's requirements shall be reasonable and shall be designed to assure protection from and against the kind and extent of risk that exists at the time a change in insurance is required.
The Town Manager or designee shall notify Lessee in writing of changes in the insurance requirements. If Lessee does not deposit copies of acceptable insurance policies with Town incorporating such changes within sixty (60) days of receipt of such notice, or in the event Lessee fails to maintain in effect any required insurance coverage, Lessee shall be in default under this lease without further notice to Lessee. Such failure shall constitute a material breach and shall be grounds for immediate termination of this Lease at the option of Town.
The procuring of such required policy or policies of insurance shall not be construed to limit Lessee’s liability hereunder nor to fulfill the indemnification provision and requirements of this Lease. Notwithstanding the policy or policies of insurance, Lessee shall be obligated for the full and total amount of any damage, injury, or loss caused by or connected with this Lease or with use or occupancy of the Premises.
22. DISPUTE RESOLUTION.
22.1 Unless otherwise mutually agreed to, any controversies between Lessee and Town regarding the construction or application of this Lease, and claims arising out of this Lease or its breach shall be submitted to mediation within thirty (30) days of the written request of one Party after the service of that request on the other Party.
22.2 The Parties may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request the Superior Court of Santa Clara County to appoint a mediator. The mediation meeting shall not exceed one day (eight (8) hours). The Parties may agree to extend the time allowed for mediation under this Lease.
22.3 The costs of mediation shall be borne by the Parties equally.
22.4 Mediation under this section is a condition precedent to filing an action in any court. In the event of litigation arising out of any dispute related to this Lease, the Parties shall each pay their respective attorney's fees, expert witness costs and cost of suit, regardless of the outcome of the litigation.
23. NON-LIABILITY OF OFFICIALS AND EMPLOYEES OF THE TOWN.
No official or employee of Town shall be personally liable for any default or liability under this agreement.
24. NON-DISCRIMINATION
26.1 Non-discrimination in Lease Activities. Lessee agrees that in the performance of this Lease and in connection with all of the activities Lessee conducts on the Premises, it shall not discriminate, harass, or retaliate against any person or class of persons regardless of
ITEM NO. 5.
13 race, religious creed (including religious dress and grooming practices), color, national origin (including language use restrictions), ancestry, religion, disability (mental and physical), medical condition, sex, gender (including gender identity and gender expression), physical characteristics, marital status, age, sexual orientation, genetic information (including family health history and genetic test results), organizational affiliation, and military or veteran status, or any other consideration made unlawful by local, State or Federal law. Tenant shall make its accommodations and services available to all persons on equal and reasonable terms.
25. INDEPENDENT CONTRACTOR.
It is agreed that Lessee shall act and be an independent contractor and not an agent nor employee of Town.
26. CONFLICT OF INTEREST.
Lessee shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Lease. Lessee warrants and covenants that no official or employee of Town nor any business entity in which any official or employee of Town is interested: (1) has been employed or retained to solicit or aid in the procuring of this agreement; or (2) will be employed in the performance of this Lease without the divulgence of such fact to Town. In the event that Town determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of Town, Lessee upon request of Town shall immediately terminate such employment. Violation of this provision constitutes a serious breach of this Lease and Town may terminate this Lease as a result of such violation.
27. ESTOPPEL CERTIFICATE.
Lessee shall, from time to time, upon at least thirty (30) days prior written notice from Town, execute, acknowledge and deliver to Town a statement in writing: (i) certifying this Lease is unmodified and in full force and effect, or, if modified, stating the nature of the modification and certifying that the Lease, as modified, is in full force and effect, and the date to which the rental and other charges, if any, have been paid; and, (ii) acknowledging that there are not to Lessee’s knowledge, any defaults, or stating if any defaults are claimed, any statement may be relied upon by any prospective purchaser or encumbrance of the Town Property. Lessee’s failure to deliver such statements within such time shall be conclusive upon the Lessee that this Lease is in full force and effect, except as and to the extent any modification has been represented by Town, and that there are no uncured defaults in Town’s performance.
28. LIENS.
Lessee agrees at its sole cost and expense to keep the Premises free and clear of any and all claims, levies, liens, encumbrances or attachments.
ITEM NO. 5.
14 29. VACATING.
Upon termination of the tenancy, Lessee shall completely vacate the Premises, including the removal of any and all of its property. Before departure, Lessee shall return keys and personal property listed on the inventory to Town in good, clean and sanitary condition, reasonable wear and tear excepted.
Lessee shall allow Town to inspect the Premises to verify the condition of the Premises and its contents.
30. ABANDONMENT.
Lessee's absence from the Premises for three (3) consecutive days, without prior notice, during which time rent or other charges are delinquent, shall be deemed abandonment of the Premises.
Such abandonment will be deemed cause for immediate termination without notice. Town shall thereupon be authorized to enter and take possession and to remove and dispose of the property of Lessee or its guests without any liability whatsoever to Town.
31. NOTICES.
All notices to the Parties shall, unless otherwise requested in writing, be sent to Town addressed as follows:
Town of Los Gatos
Attention: Town Manager
110 E. Main Street
Los Gatos, CA 95030
And to Lessee addressed as follows:
Friends of the Los Gatos Public Library
Attn: Friends of the Library President
100 Villa Ave.
Los Gatos, CA 95030
Notices may be served upon Lessee in person, by first class mail, or by certified mail whether or not said mailing is accepted by Lessee. If notice is sent via facsimile or e-mail, a signed, hard copy of the material shall also be mailed. The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday. These addresses shall be used for service of process.
32. TIME.
Time shall be of the essence in this Lease.
33. AMENDMENTS.
ITEM NO. 5.
15 It is mutually agreed that no oral Leases have been entered into and that no alteration or variation of the terms of this Lease shall be valid unless made in writing and signed by the Parties to this Lease.
34. SIGNING AUTHORITY.
If this Lease is not signed by all Lessees named herein, the person actually signing warrants that he/she has the authority to sign for the others.
35. CAPTIONS.
The captions of the various sections, paragraphs and subparagraphs of this Lease are for convenience only and shall not be considered or referred to in resolving questions of interpretation.
36. SURRENDER OF LEASE NOT MERGER.
The voluntary or other surrender of this Lease by Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of Town, terminate all or any existing subleases or subtenancies, or may, at the option of Town, operate as an assignment of any and all such subleases or subtenancies.
37. INTEGRATED DOCUMENT.
This Lease, including any exhibits attached hereto, embodies the entire agreement between Town and Lessee. No other understanding, agreements, conversations or otherwise, with any officer, agent or employee of Town prior to execution of this Lease shall affect or modify any of the terms or obligations contained in any documents comprising this Lease. Any such verbal agreement shall be considered as unofficial information and in no way binding upon Town. All agreements with Town are subject to approval of the Town Council before Town shall be bound thereby.
38. WAIVER.
Waiver by Town of one or more conditions of performance or any breach of a condition under this Lease shall not be construed as a waiver of any other condition of performance or subsequent breaches. The subsequent acceptance by a Party of the performance of any obligation or duty by another Party shall not be deemed to be a waiver of any term or condition of this Lease. The exercise of any remedy, right, option or privilege hereunder by Town shall not preclude Town from exercising the same or any and all other remedies, rights, options and privileges hereunder and Town's failure to exercise any remedy, right, option or privilege at law or equity, or otherwise which Town may have, shall not be construed as a waiver.
39. INTERPRETATIONS.
In construing or interpreting this Lease, the word "or" shall not be construed as exclusive and the word "including" shall not be limiting. The Parties agree that this Lease shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against any other Party.
ITEM NO. 5.
16 40. SEVERABILITY CLAUSE.
If any provision of this Lease is held to be illegal, invalid or unenforceable in full or in part, for any reason, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid and enforceable, and the other provisions of this Lease shall not be affected thereby.
41. GOVERNING LAW.
This Lease shall be governed and construed in accordance with the statutes and laws of the State of California.
42. VENUE.
In the event that suit shall be brought by any Party to this Lease, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara.
43. COMPLIANCE WITH LAWS.
The Parties hereto shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments in the performance of their rights, duties and obligations under this Lease.
44. BROKERS.
Each party represents that neither has had dealings with any real estate broker, finder, or other person, with respect to this lease in any manner. Each Party shall hold harmless the other party from all damages resulting from any claims that may be asserted against the other party by any broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
45. ATTACHMENTS TO LEASE.
The following exhibits are attached to and made a part of this Agreement:
“A” – Description of Subject Premises “
B” – Standard Insurance Requirements
ITEM NO. 5.
17 IN WITNESS WHEREOF, the parties have executed this Lease the day and year first above written.
TOWN: TENANT:
TOWN OF LOS GATOS (LESSOR) FRIENDS OF THE LOS GATOS
PUBLIC LIBRARY
______ ____ ___________________________________
Laurel Prevetti, Town Manager , President
ATTEST:
______________
Wendy Wood, Town Clerk
APPROVED AS TO FORM:
________________________________
Gabrielle Whelan, Town Attorney
ITEM NO. 5.
18 LEASE AGREEMENT
BETWEEN
TOWN OF LOS GATOS
AND
FRIENDS OF THE LOS GATOS PUBLIC LIBRARY
EXHIBIT A
DESCRIPTION OF SUBJECT PREMISES
ITEM NO. 5.
19
ITEM NO. 5.
20 LEASE AGREEMENT BY AND BETWEEN TOWN OF LOS GATOS, CALIFORNIA AND
FRIENDS OF THE LIBRARY
EXHIBIT B
INSURANCE REQUIREMENTS
Upon executing this Lease Agreement, Tenant shall procure and maintain for the duration of the Lease and for so long as may be necessary to fully protect Landlord, insurance against claims for injuries to persons and/or damages to property which may arise from or in connection with the Tenant’s operations on, access to, and/or use of the Premises and Property. The cost of such insurance shall be borne by the Tenant.
A. CERTIFICATE REQUIREMENTS
The Town will be issued a Certificate of Insurance (a Memorandum of Understanding will not be accepted) with the following minimum requirements:
• Certificate(s) will show current policy number(s) and effective dates, • Coverage and policy limits will meet, or exceed, requirements below, • The Certificate Holder will be Town of Los Gatos, 110 E Main Street, Los Gatos, CA 95030,
• Certificate will be signed by an authorized representative, • An endorsement, if required below, will be provided to show the Town, its officers, officials, employees, and volunteers as additional insureds, and • Coverages must be maintained during the term of the Lease with the Town, unless a longer duration is required.
B. MINIMUM SCOPE AND LIMIT OF INSURANCE
Tenant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. If Tenant maintains broader insurance coverage and/or higher limits than the minimums shown below, Landlord shall be entitled to the broader insurance coverage and/or higher limits maintained by Tenant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Landlord.
Coverage shall be at least as broad as the following:
1. Commercial General Liability (CGL): During the term of this Lease, including any extensions or renewals thereof, Tenant, at its sole cost, shall keep in full force and effect a policy of standard form commercial general liability insurance, including coverage for contractual liability, personal injury, property damage, products liability, acts of independent contractors, with a single combined liability limit of not less than One Million Dollars ($1,000,000.00) per occurrence; Two Million Dollars ($2,000,000) in the aggregate, for bodily injury and property damage insuring against all liability of Tenant and its employees, agents, representatives, subtenants, assignees and concessionaires arising out of and in connection with Tenant's use or occupancy of the Premises.
ITEM NO. 5.
21 The liability insurance policy required herein shall insure Tenant's performance of the indemnity provisions of this Lease, and Landlord, and its officials, officers, employees, and agents shall be named as additional insureds with cross-liability endorsements.
The Landlord, and any person, firms or corporations designated by Landlord, by reason of their inclusion under said policy, shall not incur liability for payment of any premium for any policy of insurance required herein. If available, any policy of insurance required herein shall contain a provision requiring the insurer to give the Landlord thirty (30) days' prior written notice before canceling or changing any such coverage.
2. Automobile Liability: Tenant shall procure automobile insurance on an “Any Auto” Basis: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 combined single limit each occurrence/per accident for bodily injury and property damage.
3. Workers’ Compensation and Employer’s Liability Insurance. Tenant shall obtain policies as required by applicable law against liability arising on account of injuries or death to workers or employees on the Premises or any improvement of Tenant. Such workers’ compensation insurance shall be in amounts at least equal to the maximum liability of Tenant, its agents, and contractors under the Workers’ Compensation Insurance and Safety Act of the State of California and the Federal Longshore and Harbor Workers’ Compensation Act, as applicable. Tenant shall also maintain Employer’s Liability insurance with limits no less than One Million Dollars ($1,000,000) per accident for bodily injury or disease, $1,000,000 disease – policy limit, $1,000,000 disease – each employee. Such insurance shall include a waiver of subrogation in favor of Landlord.
4. Property Insurance
Tenant shall, at Tenant's sole expense, obtain and keep in full force and effect an insurance policy covering all of Tenant's personal property, trade fixtures, equipment and merchandise located in or upon the leased Premises, and including tenant improvements and betterments in an amount sufficient to cover not less than one hundred percent (100%) of the replacement value of the personal property. Tenant shall be solely responsible for any uninsured loss or damage caused to Tenant's personal property, trade fixtures, equipment and merchandise located in or upon the leased Premises for any reason.
C. OTHER INSURANCE PROVISIONS
1. Primary Coverage:
For any claims related to this Lease, the Tenant’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects the Town, its officers,
officials, employees, and volunteers. Any insurance or self-insurance maintained by the Landlord, its
officers, officials, employees, or volunteers shall be excess of the Tenant’s insurance and shall not
contribute with it. This requirement shall also apply to any Excess or Umbrella liability
ITEM NO. 5.
22 policies.
2. Insurance Limits, Rating, and Proof of Coverages:
All insurance policies required hereunder shall be issued by an insurance company having not less than a financial rating of Class A VIII or better as rated in the most current available Best's Key Rating Guide.
Prior to the commencement of the term of this Lease, Tenant shall provide Landlord with evidence of any insurance policies required herein and shall continue to provide such evidence of insurance upon the request of Landlord during the remaining term of this Lease, including all extensions and renewals thereto. All public liability, property damage and other casualty policies shall be written as primary policies, not contributing with and not in excess of coverage which the Landlord may carry.
3. Review of Coverage:
Landlord may increase or decrease the amount of commercial general liability insurance and other policies required herein, based upon a general review by Landlord of the standard insurance requirements. Changes in insurance amounts shall occur not more frequently than once a year. Landlord will notify Tenant of any changes under this provision of this Lease.
Landlord may also require Tenant’s contractor or subcontractor to obtain insurance sufficient in coverage, form and amount to provide adequate protection for Landlord, Tenant, and/or those using the Premises or Property.
4. Contractors:
Tenant shall require and verify that all contractors and subcontractors maintain insurance meeting all the requirements stated herein, and Tenant shall ensure that Town, its officers, officials, employees, agents, and volunteers are named as additional insureds on insurance required from its contractor(s) and subcontractor(s).
D. SPECIAL RISKS/CIRCUMSTANCES
Landlord reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances and provide notice to Tenant.
ITEM NO. 5.
23
ITEM NO. 5.
PREPARED BY: Gary Heap
Town Engineer
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Finance Director, and Director of Parks and Public Works
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 06/18/2024
ITEM NO: 6
DATE: June 13, 2024
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Shannon Road Pedestrian and Bikeways Improvement Project (CIP No. 813- 0218):
a. Award and Authorize the Town Manager to Execute a Contract with Sposeto Engineering Inc. in an Amount Not to Exceed $2,115,930.50; b. Authorize the Town Manager to Execute Change Orders in an Amount Not to Exceed Ten Percent (10%) of the Contract Award Amount ($211,593); c. Approve the Project Construction Plans with Addenda as Required by Government Code 830.6 – Design Immunity;
d. Authorize an Expenditure Budget Increase From Storm Drain Basin #1 Funds in an Amount of $447,717; and
e. Authorize an Expenditure Budget Decrease of Underground Utility Funds in an Amount of $48,003.
RECOMMENDATION:
Shannon Road Pedestrian and Bikeways Improvement Project (CIP No. 813-0218):
a. Award and authorize the Town Manager to execute a contract with Sposeto Engineering Inc. in an amount not to exceed $2,115,930.50;
b. Authorize the Town Manager to execute change orders in an amount not to exceed ten percent (10%) of the contract award amount ($211,593);
c. Approve the project construction plans with addenda as required by Government Code 830.6 – Design Immunity;
d. Authorize an expenditure budget increase from Storm Drain Basin #1 Funds in an amount of $447,717; and
e. Authorize an expenditure budget decrease of Underground Utility Funds in an amount of $48,003.
ITEM NO. 6.
PAGE 2 OF 4
SUBJECT: Shannon Road Pedestrian and Bikeways Improvement Project (CIP No. 813- 0218)
DATE: June 13, 2024
BACKGROUND:
The Shannon Road Pedestrian and Bikeway Improvements Project is intended to provide pedestrian and bicycle safety improvements on Shannon Road between Los Gatos Boulevard and Cherry Blossom Lane. This segment of Shannon Road is a two-lane neighborhood collector street with high volumes of bicycle and pedestrian traffic when schools are in session. The street is a popular route for students attending Blossom Hill Elementary, Louise Van Meter Elementary, and Raymond J. Fisher Middle Schools. There are intermittent sections of sidewalk on both sides of the roadway. Currently, on-street parking is not allowed on Shannon Road between 7 a.m. and 6 p.m., except on Saturdays, Sundays, and holidays.
DISCUSSION:
The project was advertised for bid on Friday, May 3, 2024. On May 29, 2024, bid packages were opened and three contractors submitted bids. A summary of bid results is presented in Table 1 (with a detailed list on Attachment 2). The contract is recommended to be awarded to Sposeto Engineering Inc. as the apparent low and responsive bidder.
The engineer’s estimate for the project was $1,873,920. Bids received were higher than expected. This is due to the bidder’s unit prices being higher than expected for most bid items, with the exception of the drainage piping which was much higher. The California Construction Cost Index (CCCI) for the San Francisco Bay Area indicates that construction prices are continuing to rise throughout the area. As such, staff does not believe that rebidding the project would change yield pricing that is consistent with the Engineers Estimate.
Table 1. Bid Summary for Shannon Road Pedestrian and Bikeways Improvement Project (CIP No. 813-0218)
BIDDER NAME BASE BID
Sposeto Engineering Inc $2,115,930.00
Redgewick Construction Co $2,192,202.50
Galeb Paving Inc $2,451,454.47
Government Code 830.6 – Design Immunity states that neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body. The project
ITEM NO. 6.
PAGE 3 OF 4
SUBJECT: Shannon Road Pedestrian and Bikeways Improvement Project (CIP No. 813- 0218)
DATE: June 13, 2024
DISCUSSION (continued):
construction plans can be found at the following link: https://www.losgatosca.gov/108/CapitalImprovement-Program.
CONCLUSION:
Staff recommends awarding and executing an agreement with Sposeto Engineering, Inc. for $2,115,930.50. Staff also requests that Town Council formally approve the construction plans, bid documents, and addenda.
COORDINATION:
This project has been coordinated with the Finance Department.
FISCAL IMPACT:
Budget Costs
GFAR $ 740,296.49
OBAG Grant $ 940,100.00
TFCA Grant $ 174,250.00
Storm Basin #1 $ 200,000.00
Budget Increase from Storm Basin #1 Funds (Requested with this Staff Report) $ 447,717.00
Traffic Mitigation $ 133,380.00
Underground Utility Funds $ 119,204.00
Budget Decrease of Underground Utility Funds (Requested with this Staff Report) $ (48,003.00)
Total Budget $ 2,706,944
Prior Expenses Including Encumbrances $ 369,421
Construction Agreement with Sposeto Engineering Inc. (Requested with this Staff Report) $ 2,115,930
Construction Contingency (Requested with this Staff Report) $ 211,593 Temporary/Part-Time Staff $ 10,000
Total Expenditures $ 2,706,944
Remaining Budget $0
Shannon Road Pedestrian and Bikeway Improvements
CIP No. 813-0218
ITEM NO. 6.
PAGE 4 OF 4
SUBJECT: Shannon Road Pedestrian and Bikeways Improvement Project (CIP No. 813- 0218)
DATE: June 13, 2024
FISCAL IMPACT (continued):
The original project budget included funding for utility undergrounding. Efforts were made towards utility undergrounding; however, relocation of the existing utility poles is what was determined to be the best course of action. Underground Utility Funds were used for the PG&E application for this project. As the project will only relocate existing utility poles and not actually accomplish any utility undergrounding, staff is requesting that the remainder of these underground funds be removed from the project and reallocated back to the Utility Undergrounding Fund.
Additional funding from the Storm Drain Funds will be used to cover the shortage of project funding as there are more than $700,000 in storm drainage improvements being constructed with the project.
ENVIRONMENTAL ASSESSMENT:
This is a project as defined under CEQA and is Categorically Exempt (Section 15301(c)). A Notice of Exemption has been filed.
Attachments:
1. Construction Agreement with Exhibit A – Bid Summary
2. Bid Summary
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project CONTRACT Town Project #813-0218, Federal Project #CML-5067(024) Page 1 Contract
This public works contract (“Contract”) is entered into by and between Town of Los Gatos (“Town”) and Sposeto Engineering Inc. (“Contractor”), for work on the Shannon Road Pedestrian and Bikeway Improvement Project, TLG Project #813-0218 – Federal Project #CML5067(024) (“Project”).
The parties agree as follows:
1. Award of Contract. In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform the Work to construct the Project. On June 18, 2024, Town authorized award of this Contract to Contractor for the amount set forth in Section 4, below. Town has elected to include the following Project alternate(s) in the Contract: No alternates.
2. Contract Documents. The Contract Documents incorporated into this Contract include and are comprised of all of the documents listed below. The definitions provided in Article 1 of the General Conditions apply to all of the Contract Documents, including this Contract.
2.1 Notice Inviting Bids;
2.2 Instructions to Bidders;
2.3 Addenda, if any;
2.4 Bid Proposal and attachments thereto;
2.5 Contract;
2.6 Payment and Performance Bonds;
2.7 General Conditions;
2.8 Special Conditions;
2.9 Project Plans and Specifications;
2.10 Change Orders, if any;
2.11 Notice of Potential Award;
2.12 Notice to Proceed; and
2.13 The following: No additional documents.
3. Contractor’s Obligations. Contractor will perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, supplies, tools, equipment, transportation, onsite facilities, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to diligently prosecute and complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.
ATTACHMENT 1
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project CONTRACT Town Project #813-0218, Federal Project #CML-5067(024) Page 2
4. Payment. As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, Town will pay Contractor $2,115,930.50 (“Contract Price”) for all of Contractor’s direct and indirect costs to perform the Work, including all labor, materials, supplies, equipment, taxes, insurance, bonds and all overhead costs, in accordance with the payment provisions in the General Conditions.
5. Time for Completion. Contractor will fully complete the Work for the Project, meeting all requirements for Final Completion, within (95) ninety-five working days from the start date set forth in the Notice to Proceed (“Contract Time”). By signing below, Contractor expressly waives any claim for delayed early completion.
6. Liquidated Damages. As further specified in Section 5.4 of the General Conditions, if Contractor fails to complete the Work within the Contract Time, Town will assess liquidated damages in the amount of $2,850 per day for each day of unexcused delay in achieving Final Completion, and such liquidated damages may be deducted from Town’s payments due or to become due to Contractor under this Contract.
7. Labor Code Compliance.
7.1 General. This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance, as further specified in Article 9 of the General Conditions.
7.2 Prevailing Wages. This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. Copies of these prevailing rates are available online at http://www.dir.ca.gov/DLSR.
7.3 DIR Registration. Town may not enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work pursuant to Labor Code § 1725.5, subject to limited legal exceptions.
8. Workers’ Compensation Certification. Pursuant to Labor Code § 1861, by signing this Contract, Contractor certifies as follows: “I am aware of the provisions of Labor Code § 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.”
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project CONTRACT Town Project #813-0218, Federal Project #CML-5067(024) Page 3
9. Conflicts of Interest. Contractor, its employees, Subcontractors, and agents may not have, maintain, or acquire a conflict of interest in relation to this Contract in violation of any Town ordinance or requirement, or in violation of any California law, including Government Code § 1090 et seq., or the Political Reform Act, as set forth in Government Code § 81000 et seq. and its accompanying regulations. Any violation of this Section constitutes a material breach of the Contract.
10. Independent Contractor. Contractor is an independent contractor under this Contract and will have control of the Work and the means and methods by which it is performed. Contractor and its Subcontractors are not employees of Town and are not entitled to participate in any health, retirement, or any other employee benefits from Town.
11. Notice. Any notice, billing, or payment required by or pursuant to the Contract Documents must be made in writing, signed, dated, and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, or by email as a PDF file.
Notice is deemed effective upon delivery, except that service by U.S. Mail is deemed effective on the second working day after deposit for delivery. Notice for each party must be given as follows:
Town:
Finance Department
Town of Los Gatos
110 E. Main St.
Los Gatos, CA 95030
[email protected]
Copy to: Gary Heap, Town Engineer
[email protected]
Contractor:
Name: Sposeto Engineering___________________
Address:___________________________________
City/State/Zip:_______________________________
Phone:_____________________________________
Attn:_______________________________________
Email:______________________________________
Copy to:____________________________________
12. General Provisions.
12.1 Assignment and Successors. Contractor may not assign its rights or obligations under this Contract, in part or in whole, without Town’s written consent. This
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project CONTRACT Town Project #813-0218, Federal Project #CML-5067(024) Page 4 Contract is binding on Contractor’s and Town’s lawful heirs, successors and permitted assigns.
12.2 Third Party Beneficiaries. There are no intended third party beneficiaries to this Contract.
12.3 Governing Law and Venue. This Contract will be governed by California law and venue will be in the Santa Clara County Superior Court, and no other place.
Contractor waives any right it may have pursuant to Code of Civil Procedure § 394, to file a motion to transfer any action arising from or relating to this Contract to a venue outside of Santa Clara County, California.
12.4 Amendment. No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.
12.5 Integration. This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between Town and Contractor.
12.6 Severability. If any provision of the Contract Documents is determined to be illegal, invalid, or unenforceable, in whole or in part, the remaining provisions of the Contract Documents will remain in full force and effect.
12.7 Iran Contracting Act. If the Contract Price exceeds $1,000,000, Contractor certifies, by signing below, that it is not identified on a list created under the Iran Contracting Act, Public Contract Code § 2200 et seq. (the “Act”), as a person engaging in investment activities in Iran, as defined in the Act, or is otherwise expressly exempt under the Act.
12.8 Authorization. Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required pursuant to California Corporations Code § 313. [Signatures are on the following page.]
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project CONTRACT Town Project #813-0218, Federal Project #CML-5067(024) Page 5 The parties agree to this Contract as witnessed by the signatures below:
CITY: Approved as to form:
s/_______________________________ s/__________________________________ Laurel Prevetti, Town Manager_______ Gabrielle Whelan, Town Attorney_________ Name, Title Name, Title
Date: ___________________________ Date: ______________________________ Attest:
s/_______________________________
Wendy Wood, CMC, Town Clerk______
Name, Title
Date: ___________________________
CONTRACTOR: Sposeto Engineering Inc._______________
Business Name
s/_______________________________ Seal:
_________________________________
Name, Title
Date: ____________________________
Second Signature (See Section 12.8):
s/_______________________________
_________________________________
Name, Title
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project CONTRACT Town Project #813-0218, Federal Project #CML-5067(024) Page 6 Date: ____________________________
___________________________________________________
Contractor’s California License Number(s) and Expiration Date(s)
END OF CONTRACT
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project PAYMENT BOND Town Project #813-0218, Federal Project #CML-5067(024) Page 7 Payment Bond
Town of Los Gatos (“Town”) and Sposeto Engineering Inc. (“Contractor”) have entered into a contract for work on the Shannon Road Pedestrian and Bikeway Improvement Project, TLG Project #813-0218 – Federal Project #CML-5067(024) (“Project”). The Contract is incorporated by reference into this Payment Bond (“Bond”).
1. General. Under this Bond, Contractor as principal and ____________________________, its surety (“Surety”), are bound to Town as obligee in an amount not less than $_________________, under California Civil Code § 9550 et seq., to ensure payment to authorized claimants. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.
2. Surety’s Obligation. If Contractor or any of its Subcontractors fails to pay a person authorized in California Civil Code § 9100 to assert a claim against a payment bond, any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Contractor and its Subcontractors under California Unemployment Insurance Code § 13020 with respect to the work and labor, then Surety will pay the obligation.
3. Beneficiaries. This Bond inures to the benefit of any of the persons named in California Civil Code § 9100, so as to give a right of action to those persons or their assigns in any suit brought upon this Bond. Contractor must promptly provide a copy of this Bond upon request by any person with legal rights under this Bond.
4. Duration. If Contractor promptly makes payment of all sums for all labor, materials, and equipment furnished for use in the performance of the Work required by the Contract, in conformance with the time requirements set forth in the Contract and as required by California law, Surety’s obligations under this Bond will be null and void. Otherwise, Surety’s obligations will remain in full force and effect.
5. Waivers. Surety waives any requirement to be notified of alterations to the Contract or extensions of time for performance of the Work under the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845. Town waives the requirement of a new bond for any supplemental contract under Civil Code § 9550. Any notice to Surety may be given in the manner specified in the Contract and sent to Surety as follows:
Attn: _________________________________________________ Address: ______________________________________________ City/State/Zip: _________________________________________ Phone: _______________________________________________
Email: ________________________________________________
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project PAYMENT BOND Town Project #813-0218, Federal Project #CML-5067(024) Page 8
6. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Santa Clara County Superior Court, and no other place.
Surety will be responsible for Town’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.
[Signatures are on the following page.]
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project PAYMENT BOND Town Project #813-0218, Federal Project #CML-5067(024) Page 9
7. Effective Date; Execution. This Bond is entered into and is effective on __________, 20__.
SURETY:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
APPROVED BY TOWN:
s/ __________________________________ ______________________________ Date
____________________________________
Name, Title
END OF PAYMENT BOND
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project PERFORMANCE BOND Town Project #813-0218, Federal Project #CML-5067(024) Page 10 Performance Bond
Town of Los Gatos (“Town”) and Sposeto Engineering Inc.(“Contractor”) have entered into a contract for work on the Shannon Road Pedestrian and Bikeway Improvement Project, TLG Project #813-0218 – Federal Project #CML-5067(024) (“Project”). The Contract is incorporated by reference into this Performance Bond (“Bond”).
1. General. Under this Bond, Contractor as principal and ___________________________, its surety (“Surety”), are bound to Town as obligee for an amount not less than $__________________ to ensure Contractor’s faithful performance of its obligations under the Contract. This Bond is binding on the respective successors, assigns, owners, heirs, or executors of Surety and Contractor.
2. Surety’s Obligations. Surety’s obligations are co-extensive with Contractor’s obligations under the Contract. If Contractor fully performs its obligations under the Contract, including its warranty obligations under the Contract, Surety’s obligations under this Bond will become null and void. Otherwise, Surety’s obligations will remain in full force and effect.
3. Waiver. Surety waives any requirement to be notified of and further consents to any alterations to the Contract made under the applicable provisions of the Contract Documents, including changes to the scope of Work or extensions of time for performance of Work under the Contract. Surety waives the provisions of Civil Code §§ 2819 and 2845.
4. Application of Contract Balance. Upon making a demand on this Bond for completion of the Work prior to acceptance of the Project, Town will make the Contract Balance available to Surety for completion of the Work under the Contract. For purposes of this provision, the Contract Balance is defined as the total amount payable by Town to Contractor as the Contract Price minus amounts already paid to Contractor, and minus any liquidated damages, credits, or backcharges to which Town is entitled under the terms of the Contract.
5. Contractor Default. Upon written notification from Town of Contractor’s termination for default under Article 13 of the Contract General Conditions, time being of the essence, Surety must act within the time specified in Article 13 to remedy the default through one of the following courses of action:
5.1 Arrange for completion of the Work under the Contract by Contractor, with Town’s consent, but only if Contractor is in default solely due to its financial inability to complete the Work;
5.2 Arrange for completion of the Work under the Contract by a qualified contractor acceptable to Town, and secured by performance and payment bonds issued by
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project PERFORMANCE BOND Town Project #813-0218, Federal Project #CML-5067(024) Page 11 an admitted surety as required by the Contract Documents, at Surety’s expense; or
5.3 Waive its right to complete the Work under the Contract and reimburse Town the amount of Town’s costs to have the remaining Work completed.
6. Surety Default. If Surety defaults on its obligations under the Bond, Town will be entitled to recover all costs it incurs due to Surety’s default, including legal, design professional, or delay costs.
7. Notice. Any notice to Surety may be given in the manner specified in the Contract and sent to Surety as follows:
Attn: _________________________________________________ Address: ______________________________________________ City/State/Zip: _________________________________________ Phone: _______________________________________________
Fax: __________________________________________________ Email: ________________________________________________
8. Law and Venue. This Bond will be governed by California law, and venue for any dispute pursuant to this Bond will be in the Santa Clara County Superior Court, and no other place.
Surety will be responsible for Town’s attorneys’ fees and costs in any action to enforce the provisions of this Bond.
9. Effective Date; Execution. This Bond is entered into and effective on ____________________, 20___.
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project PERFORMANCE BOND Town Project #813-0218, Federal Project #CML-5067(024) Page 12 SURETY:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
(Attach Acknowledgment with Notary Seal and Power of Attorney) CONTRACTOR:
___________________________________
Business Name
s/__________________________________ ______________________________ Date
___________________________________
Name, Title
APPROVED BY TOWN:
s/ __________________________________ ______________________________ Date
____________________________________
Name, Title
END OF PERFORMANCE BOND
ITEM NO. 6.
Shannon Road Pedestrian and Bikeway Improvement Project PERFORMANCE BOND Town Project #813-0218, Federal Project #CML-5067(024) Page 13 Page 88 ITEM NO. 6.
EXHIBIT A
ITEM NO. 6.
ITEM NO. 6.
ITEM NO. 6.
Bid Item Quantity Type Unit Cost Cost Unit Cost Cost Unit Cost Cost 1 Traffic Control 1 LS $ 148,000.00 $ 148,000.00 $ 298,745.00 $ 298,745.00 $ 141,300.00 $ 141,300.00 2 Changeable Message Sign 2 EA $ 8,000.00 $ 16,000.00 $ 1,500.00 $ 3,000.00 $ 19,860.00 $ 39,720.00 3 Construction Staking and Layout 1 LS $ 20,000.00 $ 20,000.00 $ 35,000.00 $ 35,000.00 $ 36,960.00 $ 36,960.00 4 Tree Protection 1 LS $ 3,600.00 $ 3,600.00 $ 3,950.00 $ 3,950.00 $ 8,245.00 $ 8,245.00 5 Adjust Storm Manhole to Grade 2 EA $ 2,100.00 $ 4,200.00 $ 1,600.00 $ 3,200.00 $ 1,150.00 $ 2,300.00 6 Adjust Survey Monument to Grade 2 EA $ 600.00 $ 1,200.00 $ 1,500.00 $ 3,000.00 $ 750.00 $ 1,500.00 7 Adjust Electric Pullbox 1 EA $ 290.00 $ 290.00 $ 400.00 $ 400.00 $ 1,500.00 $ 1,500.00 8 Abandon Storm Drain Pipe 94 LF $ 75.00 $ 7,050.00 $ 73.00 $ 6,862.00 $ 101.50 $ 9,541.00 9 Remove Tree 9 EA $ 1,200.00 $ 10,800.00 $ 1,000.00 $ 9,000.00 $ 2,160.00 $ 19,440.00 10 Remove Tree Stump 1 EA $ 250.00 $ 250.00 $ 250.00 $ 250.00 $ 3,300.00 $ 3,300.00 11 Remove Concrete Sidewalk & Driveway 2943 SF $ 8.00 $ 23,544.00 $ 5.00 $ 14,715.00 $ 6.70 $ 19,718.10 12 Remove Concrete Curb & Gutter 178 LF $ 25.00 $ 4,450.00 $ 60.00 $ 10,680.00 $ 53.40 $ 9,505.20 13 Remove Concrete Curb 192 LF $ 21.00 $ 4,032.00 $ 30.00 $ 5,760.00 $ 47.50 $ 9,120.00 14 Remove Concrete Valley Gutter 10 LF $ 60.00 $ 600.00 $ 130.00 $ 1,300.00 $ 200.00 $ 2,000.00 15 Remove Brick Wall 60 LF $ 40.00 $ 2,400.00 $ 25.00 $ 1,500.00 $ 283.20 $ 16,992.00 16 Remove Brick Column 5 EA $ 400.00 $ 2,000.00 $ 200.00 $ 1,000.00 $ 1,290.00 $ 6,450.00 17 Remove Decorative Paver 640 SF $ 8.00 $ 5,120.00 $ 4.00 $ 2,560.00 $ 11.40 $ 7,296.00 18 Remove Drainage Inlet 4 EA $ 1,400.00 $ 5,600.00 $ 1,500.00 $ 6,000.00 $ 3,250.00 $ 13,000.00 19 Remove Area Drain 1 EA $ 400.00 $ 400.00 $ 1,400.00 $ 1,400.00 $ 1,000.00 $ 1,000.00 20 Remove Existing Sign Panel 5 EA $ 400.00 $ 2,000.00 $ 325.00 $ 1,625.00 $ 71.50 $ 357.50 21 Remove Existing Roadside Sign and Sign Panel 20 EA $ 400.00 $ 8,000.00 $ 325.00 $ 6,500.00 $ 159.50 $ 3,190.00 22 Remove Fence 109 LF $ 18.00 $ 1,962.00 $ 30.00 $ 3,270.00 $ 64.10 $ 6,986.90 23 Remove Mailbox 3 EA $ 675.00 $ 2,025.00 $ 650.00 $ 1,950.00 $ 1,000.00 $ 3,000.00 24 Remove Base and Surfacing 3071 SY $ 33.50 $ 102,878.50 $ 20.00 $ 61,420.00 $ 92.52 $ 284,128.92 25 Cold Plane Asphalt Concrete Pavement 3221 SY $ 12.30 $ 39,618.30 $ 12.00 $ 38,652.00 $ 9.20 $ 29,633.20 26 Clearing and Grubbing 1 LS $ 53,560.00 $ 53,560.00 $ 192,480.00 $ 192,480.00 $ 447,081.00 $ 447,081.00 27 Excavate Unsuitable Material 120 CY $ 390.00 $ 46,800.00 $ 80.00 $ 9,600.00 $ 254.50 $ 30,540.00 28 Imported Topsoil 118 CY $ 172.00 $ 20,296.00 $ 100.00 $ 11,800.00 $ 213.40 $ 25,181.20 29 Tree 47 EA $ 1,924.00 $ 90,428.00 $ 1,625.00 $ 76,375.00 $ 1,788.00 $ 84,036.00 30 Root Barrier 40 LF $ 25.00 $ 1,000.00 $ 35.00 $ 1,400.00 $ 38.50 $ 1,540.00 31 Hot Mix Asphalt 1251 TON $ 225.00 $ 281,475.00 $ 238.00 $ 297,738.00 $ 158.20 $ 197,908.20 32 Asphalt Crack Sealing 1 LS $ 16,000.00 $ 16,000.00 $ 12,800.00 $ 12,800.00 $ 41,250.00 $ 41,250.00 33 Slurry Seal (Black Aggregate) 3150 SY $ 11.00 $ 34,650.00 $ 8.75 $ 27,562.50 $ 9.55 $ 30,082.50 34 Concrete Sidewalk 9448 SF $ 20.00 $ 188,960.00 $ 19.00 $ 179,512.00 $ 15.40 $ 145,499.20 35 Concrete Curb Ramp 865 SF $ 42.38 $ 36,658.70 $ 63.00 $ 54,495.00 $ 30.20 $ 26,123.00 36 Concrete Driveway 3737 SF $ 30.50 $ 113,978.50 $ 24.00 $ 89,688.00 $ 22.00 $ 82,214.00 37 Concrete Curb & Gutter per TLS-ST-210 51 LF $ 89.00 $ 4,539.00 $ 105.00 $ 5,355.00 $ 44.00 $ 2,244.00 38 Concrete Curb & Gutter (MOD) 2809 LF $ 74.00 $ 207,866.00 $ 82.00 $ 230,338.00 $ 38.50 $ 108,146.50 39 Concrete Curb 276 LF $ 60.00 $ 16,560.00 $ 105.00 $ 28,980.00 $ 33.00 $ 9,108.00 40 Drainage Curb Inlet 9 EA $ 6,800.00 $ 61,200.00 $ 7,500.00 $ 67,500.00 $ 7,500.00 $ 67,500.00 41 Drainage Manhole on Existing Pipe 1 EA $ 10,000.00 $ 10,000.00 $ 13,000.00 $ 13,000.00 $ 5,000.00 $ 5,000.00 42 Drainage Manhole 1 EA $ 10,000.00 $ 10,000.00 $ 36,000.00 $ 36,000.00 $ 6,500.00 $ 6,500.00 43 Adjust Inlet 1 EA $ 3,400.00 $ 3,400.00 $ 4,000.00 $ 4,000.00 $ 2,500.00 $ 2,500.00 44 Full Trash Capture Device 2 EA $ 5,700.00 $ 11,400.00 $ 1,800.00 $ 3,600.00 $ 12,500.00 $ 25,000.00 45 4" PVC Schedule 40 130 LF $ 38.00 $ 4,940.00 $ 35.00 $ 4,550.00 $ 35.00 $ 4,550.00 46 12" Corrugated High Density Polyethylene Pipe (Drainage) 245 LF $ 335.00 $ 82,075.00 $ 295.00 $ 72,275.00 $ 267.20 $ 65,464.00 47 24" Corrugated High Density Polyethylene Pipe (Drainage) 503 LF $ 557.00 $ 280,171.00 $ 295.00 $ 148,385.00 $ 347.00 $ 174,541.00 48 * Concrete Backfill (Pipe Trench) 5 CY $ 1,120.00 $ 5,600.00 $ 1,700.00 $ 8,500.00 $ 1,435.00 $ 7,175.00 49 6" Thermoplastic Traffic Stripe 8115 LF $ 3.15 $ 25,562.25 $ 2.50 $ 20,287.50 $ 11.31 $ 91,780.65 50 6" Thermoplastic Traffic Stripe (Broken) 1525 LF $ 3.15 $ 4,803.75 $ 2.50 $ 3,812.50 $ 3.30 $ 5,032.50 51 4" Thermoplastic Traffic Stripe 299 LF $ 2.50 $ 747.50 $ 2.00 $ 598.00 $ 4.40 $ 1,315.60 52 12" Thermoplastic Traffic Stripe 458 LF $ 7.50 $ 3,435.00 $ 6.00 $ 2,748.00 $ 13.20 $ 6,045.60 53 Crosswalk - TLG STD. ST-261 Thermoplastic 105 LF $ 8.75 $ 918.75 $ 7.00 $ 735.00 $ 55.00 $ 5,775.00 54 Pavement Marking -Thermoplastic 582 SF $ 12.50 $ 7,275.00 $ 10.00 $ 5,820.00 $ 15.40 $ 8,962.80 55 Blue Fire Hydrant Marker 3 EA $ 12.50 $ 37.50 $ 10.00 $ 30.00 $ 27.50 $ 82.50 56 Red-Painted Curb 137 LF $ 3.75 $ 513.75 $ 3.00 $ 411.00 $ 8.80 $ 1,205.60 57 Green Bike Lane Marking -Thermoplastic 2818 SF $ 20.00 $ 56,360.00 $ 16.00 $ 45,088.00 $ 17.60 $ 49,596.80 58 Roadside Sign on New Post 20 EA $ 467.50 $ 9,350.00 $ 375.00 $ 7,500.00 $ 545.00 $ 10,900.00 59 Roadside Sign on Existing Post or Luminaire 20 EA $ 467.50 $ 9,350.00 $ 375.00 $ 7,500.00 $ 269.50 $ 5,390.00 $ 2,115,930.50 $ 2,192,202.50 $ 2,451,454.47
PROJECT: 18-813-0218 Shannon Road Pedestrian and Bikeway Improvements Sposeto Engineering Redgewick Construction Galeb Paving Total Bid Amount =
ATTACHMENT 2 Page 92
ITEM NO. 6.
PREPARED BY: Gary Heap
Town Engineer
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Finance Director, and Parks and Public Works Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 06/18/2024
ITEM NO: 7
DATE: June 10, 2024
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Stormwater Network Mapping Services (CIP No. 816-0425):
a. Award and Authorize the Town Manager to Execute a Contract with NCE in an Amount Not to Exceed $380,700;
b. Authorize the Town Manager to Execute Change Orders in an Amount Not to Exceed Ten Percent (10%) of the Contract Award Amount ($38,070) RECOMMENDATION:
Stormwater Network Mapping Services (CIP No. 816-0425):
a. Award and authorize the Town Manager to execute a contract with NCE in an amount not to exceed $380,700;
b. Authorize the Town Manager to execute change orders in an amount not to exceed ten percent (10%) of the contract award amount ($38,070).
BACKGROUND:
The ability to operate, maintain, and make informed management decisions about the storm drain system is critical for the Town of Los Gatos. The Town’s existing storm drainage mapping and data are currently incomplete, and in some cases unreliable. The Town requires the need for consultant services to prepare a complete and accurate map of the network. Due to this incomplete network mapping, staff currently lacks the information necessary to effectively manage the storm drain system and make informed management decisions about street flooding, drainage, and National Pollutant Discharge Elimination System (NPDES) permit compliance. Staff currently estimates the storm drainage system assets to include approximately 1,900 drainage inlets, 300 outfalls, 1,000 manholes, and 3,400 pipe segments (350,000 linear feet of storm pipe), totaling approximately 6,600 assets.
ITEM NO. 7.
PAGE 2 OF 3
SUBJECT: Stormwater Network Mapping Services (CIP No. 816-0425) DATE: June 10, 2024
BACKGROUND (continued):
In 2021, NCE was contracted to conduct a pilot project to collect stormwater network asset data and completed approximately 13% (860 of 6,600) of the Town’s storm drainage infrastructure data collection with the allocated project budget. The contract under consideration with this agenda item would allow the completion of the remaining 87% of the stormwater network data collection and mapping to create a reliable storm drainage Geographic Information System (GIS) map.
DISCUSSION:
Proposals for this project were requested through a Request for Proposal (RFP) process which was advertised on Tuesday, August 15, 2023. On September 15, 2023, the Town received three proposals, from NCE, Surveying and Mapping, LLC, and Sandis. Staff reviewed the proposals and selected NCE due to quality of their proposal, the cost, and the fact that they had previously collected a portion (13%) of the storm drainage network data in Town. The final scope of work took several months to negotiate, and staff worked through the Capital Budget process to increase the available funding to allow for the work to be completed.
CONCLUSION:
The contract for Storm Drainage Mapping Services is recommended to be awarded to NCE in the amount of $380,700 plus contingencies. This project is in the Adopted Fiscal Year (FY) 2024/25 – FY 2028/29 Capital Improvement Program (CIP) Budget. If this item is approved by Council, execution of the project agreement and notice to proceed would occur after July 1, 2024. There are sufficient funds in the project to accommodate the proposed award.
COORDINATION:
The project was coordinated with the Finance Department.
FISCAL IMPACT:
The storm drainage mapping project is included in the Adopted FY 2024/25-2028/29 CIP Budget with sufficient funds for the project beginning July 1st.
ITEM NO. 7.
PAGE 3 OF 3
SUBJECT: Stormwater Network Mapping Services (CIP No. 816-0425) DATE: June 10, 2024
FISCAL IMPACT (continued):
ENVIRONMENTAL ASSESSMENT:
Assessment of the Town’s storm drainage system is not considered a project defined under CEQA, and no further action is required.
Attachment:
1. Agreement with NCE with Exhibit A
Budget Costs
GFAR $ 190,000
Storm Basin #1 $ 86,667
Storm Basin #2 $ 86,667
Storm Basin #3 $ 86,667
Total Budget $ 450,001
Costs
Consultant Services Agreement with NCE (Requested with
this Staff Report) $ 380,700
10% Contingency (Requested with this Staff Report) $ 38,070 Total Expenditures $ 418,770
Available Balance $ 31,231
Storm Drainage Mapping Project
CIP No. 816-0425
ITEM NO. 7.
Agreement for Consultant Services
NCE
AGREEMENT FOR CONSULTANT SERVICES
PREAMBLE
THIS AGREEMENT is dated for identification on July 1, 2024 by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) NCE, (“Consultant”), identified as a C Corporation (Type of Corporation) and whose address is 1885 S Arlington Avenue, Suite 111, Reno NV 89509. This Agreement is made with reference to the following facts.
I. RECITALS
1.1 The Town desires to engage Consultant to provide stormwater network data collection and mapping needed for the creation of a complete and reliable storm drainage GIS map.
1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant to this Agreement.
1.3 Consultant warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement.
Consultant acknowledges Town has relied upon these warranties to retain Consultant.
II. AGREEMENTS
2.1 Scope of Services. Consultant shall provide services as described in that certain Proposal sent to the Town on May 17, 2024, which is hereby incorporated by reference and attached as Exhibit A.
2.2 Term and Time of Performance. This contract will remain in effect from July 1, 2024 through June 30, 2025. Consultant shall perform the services described in this agreement as described in Exhibit A.
2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos.
2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement.
2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the ATTACHMENT 1
ITEM NO. 7.
Agreement for Consultant Services
NCE
Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant.
2.6 Compensation. Compensation for Consultant's professional services shall not exceed $380,700, inclusive of all costs. Payment shall be based upon Town approval of each task.
2.7 Billing. Billing shall be monthly by invoice within thirty (30) days of the rendering of the service and shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655
Email (preferred): [email protected]
2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town.
2.9 Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the Town.
2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor
ITEM NO. 7.
Agreement for Consultant Services
NCE
and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing.
2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship.
2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: two million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage.
ITEM NO. 7.
Agreement for Consultant Services
NCE
ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences.
iv. Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than $1,000,000 which is sufficient to insure Consultant for professional errors or omissions in the performance of the particular scope of work under this agreement.
General Liability:
i. The Town, its elected and appointed officials, employees, and, agents are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions.
ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its elected and appointed officials, employees, and agents. Any insurance or self-insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers.
iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability.
3.2 All Coverages. Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk.
ITEM NO. 7.
Agreement for Consultant Services
NCE
3.3 Workers’ Compensation. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than one million dollars ($1,000,000) per accident for bodily injury or disease.
3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend the Town its elected and appointed officials, agents, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant.
IV. GENERAL TERMS
4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.
4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara.
4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination.
4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant.
4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal.
ITEM NO. 7.
Agreement for Consultant Services
NCE
4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to:
Town of Los Gatos
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
NCE
1885 S Arlington Avenue, Suite 111
Reno, NV 89509
or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town.
4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect of the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings.
4.8 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party.
ITEM NO. 7.
Agreement for Consultant Services
NCE
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Nicolle Burnham
Director of Parks and Public Works
NCE by:
Jason Drew, Principal
Approved as to Form:
Gabrielle Whelan, Town Attorney
Attest:
Wendy Wood, CMC, Town Clerk
ITEM NO. 7.
1003 W. Cutting Blvd., Suite 110
Point Richmond, CA 94804
(510) 215-3620
May 17, 2024
Gary Heap
Town Engineer, Parks & Public Works
Town of Los Gatos
41 Miles Avenue
Los Gatos, CA 95030
RE: Los Gatos Storm Drain Data Collection Project
Dear Mr. Heap:
NCE is pleased to submit the following scope of work for the Los Gatos Storm Drain Data Collection Project (Project).
NCE Scope of Services
Based on NCE’s proposal approach, key discussion points from the interview, and follow up discussions, NCE offers the following scope of work for the Project.
Task 1: Project Coordination
Upon an executed contract and the Town’s Notice to Proceed, NCE will schedule a kickoff meeting with key staff from the Town and NCE. The purpose of the meeting is to discuss elements of the scope including the approach to fieldwork, the proposed schedule, and the deliverables. Based on the discussion from the interview and subsequent follow-up meetings, the Project will proceed with capturing surface data and limited subsurface attribute information (i.e., pipe material, condition, flow direction, and pipe diameter [when accessible]) to support Operations and Maintenance (O&M) activities. In advance of the kickoff meeting, NCE will begin its review of the Town’s existing data and come prepared with an initial assessment and recommendations.
The kickoff meeting will be held via web conference and is anticipated to last up to two hours. Following the meeting, NCE will provide a summary and updated Project schedule, if necessary. During the first month of data collection, brief (30 minute) status meetings will be held to discuss challenges and potential solutions. After the first month of data collection, monthly progress meetings will be held as needed and documented with brief summaries. As necessary, the project schedule will be updated.
Deliverables for Task 1:
• Kickoff meeting agenda and summary (project schedule included). • Weekly progress meetings held during the first month of data collection (meeting summaries provided following each meeting)
• Monthly progress meetings held after the first month of data collection and for the remainder of the project (meeting summaries provided following each meeting) • Scheduled updated as necessary.
EXHIBIT A
ITEM NO. 7.
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Task 2: Project Planning
Task 2a: Data Review
Data review will focus on 1), identifying those areas where additional data collection will be necessary (annexed areas, large development projects, etc.) and 2), developing a proposed geodatabase (GDB) data collection schema.
NCE will confirm annex area boundaries with the Town. These areas are likely to require new data collection.
Next, NCE will develop a draft GDB data collection schema based on the design of the 2021 data collection GDB.
The assets collected in 2021 will not be revisited. Asset types to be collected include Inlets, Manholes, Outfalls, Channels, and Pipes. Attributes and domain values to be collected will include readily available surface data and will be confirmed in Task 2b prior to data collection.
To preserve as much existing information as possible, and to facilitate the data collection workflow, NCE will append the Town’s existing data into the new GDB. This will transfer the geometry and much of the existing attributes into the new GDB for subsequent field verification during the data collection task.
Task 2b: Project Delivery Plan
NCE will update the 2021 Project Delivery Plan (PDP) to provide a roadmap for the Project. The updated PDP will detail NCE’s review and understanding of the Town’s existing data, the data collection approach, definitions for the Town’s assets, and the GDB data collection schema. To facilitate review of the geodatabase design, NCE will develop a metadata spreadsheet to outline and describe asset layers, attributes, and domain values. Attributes and domain values to be collected will include readily available surface data.
Up to two rounds of revision each are anticipated to finalize the metadata spreadsheet and the PDP.
Deliverables for Task 2:
• Draft and final PDP.
• Draft metadata spreadsheet (final provided as an appendix of the PDP).
Task 3: Data Collection & Management
NCE will collect up to 6,600 readily accessible assets. Data collected will include horizontal location (sub-foot), type of asset (i.e., inlet/catch basin, manhole, outfall, pipe, channel), and attributes consistent with the data collected in 2021. When pipes are readily accessible (e.g., located directly below catch basin grates or manholes), NCE will collect pipe diameter. Pipe material will be collected when it can be accurately determined via visual observation. NCE proposes to conduct the work over an approximate 15-week period, with two crews of two field technicians, utilizing four 10-hour workdays. For purposes of budget development, a collection rate of 120 assets per day is assumed for the Project (60 assets per crew per day).
Accessible assets are those that are visually observable, located in the Town right of way, easement, or area readily open to the public, and can be opened by hand with a manhole hook or crowbar. Accessible assets are also outside of the travel lane of arterial, collector, or high-speed roadways (over 25 mph) and/or high traffic intersections. The list below helps to clarify what is classified as inaccessible. As inaccessible assets are identified during the data collection, they will be flagged. If funds remain after the data collection task has been completed (6,600 assets collected or all accessible assets/areas visited).
ITEM NO. 7.
P a g e | 3
• Accessibility Issues:
o Assets located behind locked gates.
o Access prohibited by an obstruction, such as a parked vehicle. • Maintenance Issues:
o Assets with stuck/ceased manhole lids, damaged catch basin grates prohibiting visibility into the facility or filled with debris and/or sediment. NCE will attempt to free the stuck lid with a sledgehammer.
o Several assets are anticipated to be filled or partially filled with debris and/or sediment during data collection. NCE will not perform maintenance during data collection. In situations where facilities obscure attributes of interest (e.g., pipe size [if accessible], pipe material), NCE will take a best guess approach. The asset will be flagged to ensure the Town understands the data collected may not be accurate.
• High Traffic Areas:
o High traffic areas, identified as arterial and collector streets (see attached Road Classification map), require traffic control. Assets located in these areas will not be collected. • Private Property:
o The review of the Town’s existing data indicates nearly 40% of assets are located on private property including residential and commercial private property. It is assumed a number of these assets will be inaccessible due to their location on residential private property and not readily accessible to the public (e.g., single family residential homes, parcels behind gates). These assets will not be collected.
Data will be collected using an ESRI-based workflow, including tablets loaded with the ESRI Field Maps mobile application and tethered via Bluetooth to Trimble R2 or EOS Arrow Gold GPS receivers capable of sub-foot horizontal accuracy. Assets part of the Town’s existing GIS (excluding the 2021 data) will be updated (i.e., refine spatial information and collect any missing attribute information). Existing attributes will be verified for accuracy and completeness and updated, as appropriate. Storm drain assets missing from the existing GIS will be collected.
One benefit of the ESRI-based workflow collected data can be tracked and viewed in real time within the ArcGIS Online (AGOL) environment. NCE will create a Dashboard to track the progress of data collection over time and throughout the Town. NCE will store an authoritative copy on NCE’s AGOL account and periodic backups of the data will be stored on NCE’s network. Concurrent to data collection, a technician will conduct a desktop quality assurance and quality control (QA/QC) protocol (explained below) to verify data accuracy and completeness.
Field data, processed in phases throughout the life of a project, is filtered through three rounds of QA/QC, followed by a post data collection review, and a final review by NCE’s Project Manager, to evaluate accuracy and completeness at the network level. QA/QC phases conducted during data collection include the steps summarized below. Two additional review stages, Post Data Collection Review, and the Manager Review, are then conducted before and after post processing, discussed in Task 4.
• First Line Review – This review step occurs in the field, directly after an asset has been collected. A data technician collects the necessary attributes for each asset while the other technician enters the information, and the values are repeated to ensure the data was entered properly. • Second Line Review – This systematic desktop evaluation involves flagging records with missing or erroneous values.
ITEM NO. 7.
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• Third Line Review – This step occurs in the field to check records flagged as part of second line review plus an additional 10% random sample of records collected during the latest phase of the project (the random sample is generated during Second Line Review).
Should budget remain at the conclusion of data collection for readily accessible assets, NCE and the Town may agree to use the remaining budget to return to inaccessible assets or collect additional assets. A daily data collection rate will be used. Examples of how remaining funds could be utilized include:
• Return to assets initially blocked by parked vehicles. This could be coordinated with the Town’s sweeping schedule to facilitate collecting assets when the streets have been cleared. If the parked vehicle remains during the revisit, these assets will not be collected. • Return to assets with stuck/ceased manhole lids or assets located behind locked gates, with assistance from Town maintenance staff, to gain access.
• Return to assets where sediment or debris obscured attributes of interest (e.g., pipe size [if directly below manholes or catch basins], pipe material) after the sediment/debris has been cleared. • Collect assets located in high traffic areas using traffic control assistance from a sub-contractor. A daily traffic control rate would be applied in addition to the daily data collection rate. • For assets located on residential private property not readily accessible to the public (e.g., single family residential homes, parcels behind gates), the Town will create and print door hanger notifications. NCE will hang notifications on these properties 48 hours in advance of data collection. If NCE returns to these properties and they remain inaccessible or NCE is not granted access to enter, data will not be collected.
Deliverables associated with work conducted in this task will be provided as part of Task 5.
Task 4: Post Processing
Upon completion of data collection, a GIS Specialist will perform a fourth round of QC (Post Field Review).
Annotations are added for storm drain assets with missing information (e.g., not accessible). Flow direction is evaluated to ensure accuracy within the network. Connectivity is programmatically checked to ensure lines snap to points.
Following the Post Field Review, NCE will review the data one final time. This final review helps to identify possible issues of network connectivity, flow direction, and/or unrealistic or improbable values.
Deliverables associated with work conducted in this task will be provided as part of Task 5.
Task 5: Final Deliverables
The final task includes the development of a Data Collection Summary Report to outline what was accomplished during the data collection projects. Assets requiring attention (e.g., broken pipes, broken grates, clogged structures, etc.) will be identified in a table, as well as in the GIS. Additional mapping products, including a large format, system-wide PDF map, and a more portable, larger scale map book PDF will be provided. Up to two rounds of edits are anticipated to finalize the Summary Report. The draft GDB will also be provided with the final deliverables. NCE will perform desktop-based edits during this review and assumes no additional field work will be necessary (e.g., field name changes, domain value changes).
Deliverables for Task 5:
• Draft and final Data Collection Summary Report.
ITEM NO. 7.
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• Draft and final GDB (in both ESRI File GDB and AutoCAD format with attributes retained). • Large format system-wide PDF map.
• Map book PDF.
Assumptions
• Task 1
o The kickoff call with be held via web conference and last up to two hours. o The schedule will be revised once, if necessary.
• Task 2
o The PDP and the metadata spreadsheet will be limted to one round of edits each. o The data collection schema for the current project will closely mirror the schema developed for the 2021 project (minus the constraints associated with subsurface data and vertical accuracy). o Revisiting assets collected in 2021 is not included in this scope. • Task 3
o Up to 6,600 assets will be collected within the Town boundaries. ▪ Assets located outside the Town limits will not be collected. ▪ Assets will be collected at a rate of 120 per day.
▪ Assets determined to have accessibility issues, maintenance issues, located in high traffic areas, or located on residential private property (not readily accessible to the public) will not be collected. If funds remain at the completion of data collection, NCE will work with the town to prioritze how best to use those funds to collect additional data. o Approximately 15 weeks is estimated for data collection. o Estimated horizontal spatial accuracy is sub-foot. If conditions exist impacting this level of accuracy, a spatial data point will be collected a second time and the highest resolution data point will be used.
o Vertical accuracy will be collected and reported for point assets, but no quality control will be applied (i.e., the focus of spatial accuracy for this project is horizontal, so vertical accuracy will be provided “as is”).
o Attribute data collection for pipes will include pipe material, pipe diameter (when accessible, see below), condition, and flow direction when they can accurately be collected from the surface of the asset. Pipe invert elevation and facility floor elevations will not be collected. o Pipe diameter will be collected when the pipe is accessible and the diameter can accurately be measured. If pipes are recessed or other conditions impact the ability to accurately collect data, pipe diameter will not be collected. Approximately one-third of pipes in the Town’s existing geodatabase (i.e., 1,110) is missing a value for pipe diameter. During data collection the following logic will be applied:
▪ If the pipe is accessible (e.g., directly below a catch basin or manhold opening), it will be measured and the value entered (if blank) or verified (if a value exists) – it will then be marked as “Verified”.
▪ If a pipe is not accessible, and has an existing value, that value will be assumed correct and it will be marked as “Not Verified”. If pipe diameter is missing a value, it will be left blank and marked as “Not Verified”.
ITEM NO. 7.
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• Task 5
o The Summary Report will be brief and outline the major accomplishments of the project. o The report and mapping deliverables (PDF map book and large format system map) will be limited to one round of edits each.
o The final GDB will also be converted to AutoCAD format; however, a certain amount of data loss will occur such as domain values (ability to select from a drop-down), photo attachments, and trucation of field headers. Coversion to AutoCAD will be for 2D linework only, not 3D. Attribute values in GIS will be retained in AutoCAD.
Schedule
Based on a Notice to Proceed (NTP) by early July, 2024, NCE has identified the following preliminary schedule:
• Task 1
o Kickoff meeting conducted soon after the NTP in early July. • Task 2
o Draft PDP to Town for review by late July.
o Final PDP approved by late August.
• Task 3
o Data collection will start in early to mid-September and extend through January 2025. • Task 4
o Post processing and final data review will be completed by March 2025. • Task 5
o Draft Summary Report and mapping deliverables (PDF maps and GDB) provided by April 2025. o Final deliverables provided by May 2025.
Cost Estimate
NCE proposes to provide the above-listed services on a time and materials basis in accordance with our Schedule of Charges. To collect up to 6,600 storm drain assets focused primarily on surface data, the total fee for this scope of services will not exceed $380,700. The table below provides the cost breakdown per task.
Task Fee
Task 1. Project Coordination $10,200
Task 2. Project Planning $26,200
Task 3. Data Collection $318,500
Task 4. Post Processing $12,900
Task 5. Final Deliverables $12,900
Total $380,700
Supplemental Data Collection Daily Rate
Should funds remain at the completion of the data collection task (up to 6,600 readily accessible assets collected), NCE will work with the Town to determine how best to use the remainder of the Task 3 budget. For a daily rate of $2,000 per crew (two technicians), NCE can collect up to 40 assets per day. If traffic control is necessary, this can
ITEM NO. 7.
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be accomplished with an additional daily rate of $2,250 ($4,250/day). An itemized budget is attached and provides details regarding labor costs and expenses.
We appreciate the opportunity to provide this service to the Town and look forward to working with you on this project. If you have any questions or additional needs, please contact Jeremy Hall at [email protected] or 775- 588-2505.
Respectfully,
NCE
Jeremy Hall
Project Manager
775-588-2505
[email protected]
Jason Drew
Principal
775-588-2505
[email protected]
Attachments:
Los Gatos Road Classification Map
Itemized Budget
ITEM NO. 7.
UNION AVENUE
LOS GATOS BOULEVARD
CURTNER AVENUE
SHANNON ROAD
LARK AVENUE
FOXWORTHY AVENUE
MAIN STREET
CAMDEN AVENUE
SAMARITAN DRIVE
HARWOOD ROAD
WESTMONT AVENUE
LOS GATOS-SARATOGA ROAD
WINCHESTER BOULEVARD
BLOSSOM HILL ROAD
N. SANTA
CRUZ BOULEVARD
LOS GATOS-ALMADEN ROAD
FIGURE TRA-1
FUNCTIONAL CLASSIFICATION OF ROADWAYS
Town Boundary
Sphere of Influence
Water Body
Creek
City of
Campbell
City of
San Jose
City of
Monte Sereno
Source: Town of Los Gatos, 2008.
Unincorporated
Santa Clara County
0 0.5 1 Miles
Lexington
Reservoir
Vasona Lake
County Park
City of
Saratoga
·|}þ8 5
·|}þ17
Highway
Arterial
Collector
Neighborhood Collector
Hillside Collector
Ross Creek
Smith Creek
San Thomas Aquino Creek
Almendra Creek
Los Gatos Creek
Guadalupe Creek
TOWN OF LOS GATOS
2020 GENERAL PLAN
TRANSPORTATION ELEMENT
ITEM NO. 7.
Task Description
Hourly Breakdown by Personnel
Principal Associate Project
Manager
Senior
Scientist
(QA/QC)
Project
Scientist
Staff
Scientist
GIS
Tech
Field
Tech
Project
Admin
Total
Labor Expenses Total Cost (Rounded)
$250 $220 $195 $190 $170 $155 $115 $100 $80 - - -
Task 1. Project Kickoff and
Coordination 0 0 48 0 0 0 0 8 1 $10,240 $0 $10,200
Task 2. Project Planning 0 20 40 0 0 32 48 24 2 $25,240 $974 $26,200 Task 3. Data Collection 0 0 0 0 78 0 61 2400 0 $260,275 $58,220 $318,500 Task 4. Post Processing 0 0 12 0 24 0 56 0 0 $12,860 $0 $12,900 Task 5. Final Deliverables 1 0 32 0 0 0 56 0 0 $12,930 $0 $12,900 Total 1 20 132 0 102 32 221 2432 3 $321,545 $59,194 $380,700 Data collection daily rate: $2,000
Traffic control daily rate: $2,250
Expenses Task 1 Task 2 Task 3 Task 4 Task 5 Cost
Truck $0 $200 $12,000 $0 $0 $12,200
Field Equipment $0 $0 $6,000 $0 $0 $6,000
Printing $0 $200 $0 $0 $0 $200
Milage/Lodging $0 $574 $40,220 $0 $0 $40,794
Task Total $0 $974 $58,220 $0 $0 $59,194
ITEM NO. 7.
PREPARED BY: Heather St. John
Senior Administrative Analyst
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 06/18/2024
ITEM NO: 8
DATE: June 10, 2024
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Execute a Revised Master Service Agreement with Flock Safety Group Inc. for Stationary Automated License Plate Readers (ALPR). in the Amount $255,000 for a Sixty-Month Term and Authorize the Town Manager to Enter into Amendments as Necessary for up to an Additional $40,000 for a Total Agreement Not to Exceed $295,000 Over the Agreement Term.
RECOMMENDATION:
Authorize the Town Manager to execute a revised Master Service Agreement with Flock Safety Group Inc. for Stationary Automated License Plate Readers (ALPR) in the amount $255,000 for a sixty-month term and authorize the Town Manager to enter into amendments as necessary for up to an additional $40,000 for a total agreement not to exceed $295,000 over the agreement term.
BACKGROUND:
On June 1, 2021, the Town Council approved a two-year pilot program for Flock Safety Automated License Plate Readers (ALPR). The Police Department identified the Flock system based on its proven capability to augment traditional Police services in the deterrence, interruption, and investigation of crime, specifically residential and commercial burglary, in the Town of Los Gatos. The Flock Safety ALPR camera system is being utilized nationwide and throughout California.
Since the system became operational in the Town of Los Gatos, it has proven to be an effective force multiplier for the Los Gatos-Monte Sereno Police Department and other neighboring
ITEM NO. 8.
PAGE 2 OF 3
SUBJECT: Authorize the Town Manager to Execute a Revised Master Service Agreement with Flock Safety Group Inc. for Stationary Automated License Plate Readers (ALPR)
DATE: June 10, 2024
BACKGROUND (continued):
jurisdictions. The Los Gatos-Monte Sereno Police Department has seen positive results in suppressing crime before it occurs and utilizing the ALPR as an investigative tool to assist with leads to apprehend criminals and recover key evidence to major crimes. Images captured by this system can be used to alert Officers in real-time to the location of a stolen vehicle or a suspect vehicle in a crime, or the system can be used to investigate crimes after they occur, providing crucial evidence and investigative leads.
The existing Flock ALPR system consists of 17 cameras mounted at key fixed-point locations throughout the Town, which capture still images of passing vehicles. Collected images are analyzed by system software in compliance with Criminal Justice Information Systems (CJIS) and then searchable when linked to an investigative incident by license plate number, state of origin for the license plate, car color, car make, or car model. The images are stored and available for law enforcement use for 30 days, and subsequently deleted from the secured retention system.
The Los Gatos-Monte Sereno Police Department provides transparency, accountability, and integrity on Police activities, Departmental policies, training materials, and agency practices.
Information is available to the public at https://www.losgatosca.gov/2713/Transparency-andData-page.
DISSCUSSION:
In 2021, the Town entered into a two-year agreement term with Flock Safety Group for fifteen ALPR cameras totaling $78,750. During this two-year agreement, the Town amended the initial agreement and added two additional cameras in the amount of $11,400 for a total two-year agreement in the amount of $90,150, for installation and subscription costs.
In 2023, Flock Safety Group increased their subscription pricing structure from $2,500 per camera to $3,000 per camera annually. To maintain the benefits of the existing technology and forecast future subscription costs, Flock Safety Group proposed a revised five-year (60-month) master services agreement in the amount of $255,000 ($51,000 per year) for the existing seventeen ALPR camera subscription costs.
CONCLUSION:
Staff recommends the Town Council authorize the Town Manager to execute a revised agreement with Flock Safety Group, Inc. for stationary Automated License Plate Readers (ALPRs), not to exceed a five-year total agreement amount of $295,000. The purpose of the
ITEM NO. 8.
PAGE 3 OF 3
SUBJECT: Authorize the Town Manager to Execute a Revised Master Service Agreement with Flock Safety Group Inc. for Stationary Automated License Plate Readers (ALPR)
DATE: June 10, 2024
CONCLUSION (continued):
revised Master Service Agreement is to provide the updated fiscal cost per camera which increased from $2,500 annually per camera to $3,000 annually per camera. This approach would lock in a 60-month term pricing and avoid potential annual increases.
The Department is seeking additional authority up to $40,000 for the term of the agreement to offset any unforeseen costs related to equipment replacement, enhanced service capability adjustments, or modifications to existing technology.
FISCAL IMPACT:
The current Police Department Operating Budget includes $51,000 annual subscription cost for FY 2023/24. The Adopted FY 2024/25 Police Department Operating Budget also includes the annual cost of the ALPR cameras. Any cost adjustment of future fiscal years would be proposed during budget development cycles for a total agreement amount (FY 2023/24 through FY 2027/28) not to exceed $295,000.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Master Service Agreement
2. Sole Source Letter
ITEM NO. 8.
1 Master Services Agreement
This Master Services Agreement (this “Agreement”) is entered into by and between Flock Group, Inc. with a place of business at 1170 Howell Mill Road NW Suite 210, Atlanta, GA 30318 (“Flock”) and the entity identified in the signature block (“Customer”) (each a “Party,” and together, the “Parties”) on this the __ day of _________, 2024. This Agreement is effective on the date of mutual execution (“Effective Date”). Parties will sign an Order Form (“Order Form”) which will describe the Flock Services to be performed and the period for performance, attached hereto as Exhibit A. The Parties agree as follows:
RECITALS
WHEREAS, Flock offers a software and hardware situational awareness solution through Flock’s technology platform that upon detection is capable of capturing audio, video, image, and recording data and provide notifications to Customer (“Notifications”); WHEREAS, Customer desires access to the Flock Services (defined below) on existing devices, provided by Customer, or Flock provided Flock Hardware (as defined below) in order to create, view, search and archive Footage and receive Notifications, via the Flock Services; WHEREAS, Customer shall have access to the Footage in Flock Services. Pursuant to Flock’s standard Retention Period (defined below) Flock deletes all Footage on a rolling thirty (30) day basis, except as otherwise stated on the Order Form. Customer shall be responsible for extracting, downloading and archiving Footage from the Flock Services on its own storage devices; and
AGREEMENT
NOW, THEREFORE, Flock and Customer agree that this Agreement, and any Order Form, purchase orders, statements of work, product addenda, or the like, attached hereto as exhibits and incorporated by reference, constitute the complete and exclusive statement of the ATTACHMENT 1
ITEM NO. 8.
2 Agreement of the Parties with respect to the subject matter of this Agreement, and replace and supersede all prior agreements, term sheets, purchase orders, correspondence, oral or written communications and negotiations by and between the Parties.
1. DEFINITIONS
Certain capitalized terms, not otherwise defined herein, have the meanings set forth or crossreferenced in this Section 1.
1.1 “Anonymized Data” means Customer Data permanently stripped of identifying details and any potential personally identifiable information, by commercially available standards which irreversibly alters data in such a way that a data subject (i.e., individual person or entity) can no longer be identified directly or indirectly.
1.2 “Authorized End User(s)” means any individual employees, agents, or contractors of Customer accessing or using the Flock Services, under the rights granted to Customer pursuant to this Agreement.
1.3 “Customer Data” means the data, media and content provided by Customer through the Flock Services. For the avoidance of doubt, the Customer Data will include the Footage.
1.4. “Customer Hardware” means the third-party camera owned or provided by Customer and any other physical elements that interact with the Embedded Software and the Web Interface to provide the Flock Services.
1.5 “Embedded Software” means the Flock proprietary software and/or firmware integrated with or installed on the Flock Hardware or Customer Hardware.
1.6 “Flock Hardware” means the Flock device(s), which may include the pole, clamps, solar panel, installation components, and any other physical elements that interact with the Embedded Software and the Web Interface, to provide the Flock Services as specifically set forth in the applicable product addenda.
1.7 “Flock IP” means the Flock Services, the Embedded Software, and any intellectual property or proprietary information therein or otherwise provided to Customer and/or its Authorized End Users. Flock IP does not include Footage (as defined below).
1.8 “Flock Network End User(s)” means any user of the Flock Services that Customer authorizes access to or receives data from, pursuant to the licenses granted herein.
ITEM NO. 8.
3 1.9 “Flock Services” means the provision of Flock’s software and hardware situational awareness solution, via the Web Interface, for automatic license plate detection, alerts, audio detection, searching image records, video and sharing Footage.
1.10 “Footage” means still images, video, audio and other data captured by the Flock Hardware or Customer Hardware in the course of and provided via the Flock Services.
1.11 “Hotlist(s)” means a digital file containing alphanumeric license plate related information pertaining to vehicles of interest, which may include stolen vehicles, stolen vehicle license plates, vehicles owned or associated with wanted or missing person(s), vehicles suspected of being involved with criminal or terrorist activities, and other legitimate law enforcement purposes. Hotlist also includes, but is not limited to, national data (i.e., NCIC) for similar categories, license plates associated with AMBER Alerts or Missing Persons/Vulnerable Adult Alerts, and includes manually entered license plate information associated with crimes that have occurred in any local jurisdiction.
1.12 “Installation Services” means the services provided by Flock for installation of Flock Services.
1.13 “Retention Period” means the time period that the Customer Data is stored within the cloud storage, as specified in the product addenda.
1.14 “Vehicle Fingerprint™” means the unique vehicular attributes captured through Flock Services such as: type, make, color, state registration, missing/covered plates, bumper stickers, decals, roof racks, and bike racks.
1.15 “Web Interface” means the website(s) or application(s) through which Customer and its Authorized End Users can access the Flock Services.
ITEM NO. 8.
4 2. SERVICES AND SUPPORT
2.1 Provision of Access. Flock hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the Flock Services via the Web Interface during the Term, solely for the Authorized End Users. The Footage will be available for Authorized End Users to access and download via the Web Interface for the data retention time defined on the Order Form (“Retention Period”). Authorized End Users will be required to sign up for an account and select a password and username (“User ID”). Customer shall be responsible for all acts and omissions of Authorized End Users, including any acts or omissions of Authorized End Users which would constitute a breach of this Agreement if undertaken by Customer. Customer shall undertake reasonable efforts to make all Authorized End Users aware of all applicable provisions of this Agreement and shall cause Authorized End Users to comply with such provisions. Flock may use the services of one or more third parties to deliver any part of the Flock Services, (such as using a third party to host the Web Interface for cloud storage or a cell phone provider for wireless cellular coverage).
2.2 Embedded Software License. Flock grants Customer a limited, non-exclusive, nontransferable, non-sublicensable (except to the Authorized End Users), revocable right to use the Embedded Software as it pertains to Flock Services, solely as necessary for Customer to use the Flock Services.
2.3 Support Services. Flock shall monitor the Flock Services, and any applicable device health, in order to improve performance and functionality. Flock will use commercially reasonable efforts to respond to requests for support within seventy-two (72) hours. Flock will provide Customer with reasonable technical and on-site support and maintenance services in-person, via phone or by email at [email protected] (such services collectively referred to as “Support Services”).
2.4 Upgrades to Platform. Flock may make any upgrades to system or platform that it deems necessary or useful to (i) maintain or enhance the quality or delivery of Flock’s products or services to its agencies, the competitive strength of, or market for, Flock’s products or services, such platform or system’s cost efficiency or performance, or (ii) to comply with applicable law.
Parties understand that such upgrades are necessary from time to time and will not diminish the quality of the services or materially change any terms or conditions within this Agreement.
ITEM NO. 8.
5 2.5 Service Interruption. Flock Services may be interrupted in the event that: (a) Flock’s provision of the Flock Services to Customer or any Authorized End User is prohibited by applicable law; (b) any third-party services required for Flock Services are interrupted; (c) if Flock reasonably believe Flock Services are being used for malicious, unlawful, or otherwise unauthorized use; (d) there is a threat or attack on any of the Flock IP by a third party; or (e) scheduled (to the extent reasonably feasible, scheduled only during non-peak usage hours) or emergency maintenance (“Service Interruption”). Flock will make commercially reasonable efforts to provide written notice of any Service Interruption to Customer, to provide updates, and to resume providing access to Flock Services as soon as reasonably possible after the event giving rise to the Service Interruption is cured. Flock will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized End User may incur as a result of a Service Interruption, except to the extent such Service Interruption occurs due to the negligence or willful misconduct of Flock. To the extent that the Service Interruption is not caused by Customer’s direct actions or by the actions of parties associated with the Customer, the time will be tolled by the duration of the Service Interruption (for any continuous suspension lasting at least one full day). For example, in the event of a Service Interruption lasting five (5) continuous days, Customer will receive a credit for five (5) free days at the end of the Term.
2.6 Service Suspension. Flock may temporarily suspend Customer’s and any Authorized End User’s access to any portion or all of the Flock IP or Flock Service if (a) there is a threat or attack on any of the Flock IP by Customer; (b) Customer’s or any Authorized End User’s use of the Flock IP disrupts or poses a security risk to the Flock IP or any other customer or vendor of Flock; (c) Customer or any Authorized End User is/are using the Flock IP for fraudulent or illegal activities; (d) Customer has violated any term of this provision, including, but not limited to, utilizing Flock Services for anything other than the Permitted Purpose; or (e) any unauthorized access to Flock Services through Customer’s account (“Service Suspension”).
Except to the extent a Service Suspension occurs due to the negligence or willful misconduct of Flock, Customer shall not be entitled to any remedy for the Service Suspension period, including any reimbursement, tolling, or credit. If the Service Suspension was not caused by Customer, the Term will be tolled by the duration of the Service Suspension.
ITEM NO. 8.
6 2.7 Hazardous Conditions. Flock Services do not contemplate hazardous materials, or other hazardous conditions, including, without limit, asbestos, lead, toxic or flammable substances. In the event any such hazardous materials are discovered in the designated locations in which Flock is to perform services under this Agreement, Flock shall have the right to cease work immediately.
3. CUSTOMER OBLIGATIONS
3.1 Customer Obligations. Flock will assist Customer Authorized End Users in the creation of a User ID. Authorized End Users agree to provide Flock with accurate, complete, and updated registration information. Authorized End Users may not select as their User ID, a name that they do not have the right to use, or any other name with the intent of impersonation. Customer and Authorized End Users may not transfer their account to anyone else without prior written permission of Flock. Authorized End Users shall not share their account username or password information and must protect the security of the username and password. Unless otherwise stated and defined in this Agreement, Customer shall not designate Authorized End Users for persons who are not officers, employees, or agents of Customer. Authorized End Users shall only use Customer-issued email addresses for the creation of their User ID. Customer is responsible for any Authorized End User activity associated with its account. Customer shall ensure that Customer provides Flock with up to date contact information at all times during the Term of this Agreement. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Flock Services. Customer shall (at its own expense) provide Flock with reasonable access and use of Customer facilities and Customer personnel in order to enable Flock to perform Services (such obligations of Customer are collectively defined as “Customer Obligations”).
3.2 Customer Representations and Warranties. Customer represents, covenants, and warrants that Customer shall use Flock Services only in compliance with this Agreement and all applicable laws and regulations, including but not limited to any laws relating to the recording or sharing of data, video, photo, or audio content.
4. DATA USE AND LICENSING
4.1 Customer Data. As between Flock and Customer, all right, title and interest in the Customer Data, belong to and are retained solely by Customer. Customer hereby grants to Flock a limited,
ITEM NO. 8.
7 non-exclusive, royalty-free, irrevocable, worldwide license to use the Customer Data and perform all acts as may be necessary for Flock to provide the Flock Services to Customer. Flock does not own and shall not sell Customer Data.
4.2 Customer Generated Data. Flock may provide Customer with the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available, messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, or other information or materials produced by Customer (“Customer Generated Data”). Customer shall retain whatever legally cognizable right, title, and interest in Customer Generated Data. Customer understands and acknowledges that Flock has no obligation to monitor or enforce Customer’s intellectual property rights of Customer Generated Data. Customer grants Flock a non-exclusive, irrevocable, worldwide, royalty-free, license to use the Customer Generated Data for the purpose of providing Flock Services. Flock does not own and shall not sell Customer Generated Data.
4.3 Anonymized Data. Flock shall have the right to collect, analyze, and anonymize Customer Data and Customer Generated Data to the extent such anonymization renders the data nonidentifiable to create Anonymized Data to use and perform the Flock Services and related systems and technologies, including the training of machine learning algorithms. Customer hereby grants Flock a non-exclusive, worldwide, perpetual, royalty-free right to use and distribute such Anonymized Data to improve and enhance the Flock Services and for other development, diagnostic and corrective purposes, and other Flock offerings. Parties understand that the aforementioned license is required for continuity of Flock Services. Flock does not own and shall not sell Anonymized Data.
5. CONFIDENTIALITY; DISCLOSURES
5.1 Confidentiality. To the extent required by any applicable public records requests, each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
Proprietary Information of Flock includes non-public information regarding features, functionality and performance of the Flock Services. Proprietary Information of Customer includes non-public data provided by Customer to Flock or collected by Flock via Flock
ITEM NO. 8.
8 Services, which includes but is not limited to geolocation information and environmental data collected by sensors. The Receiving Party agrees: (i) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the Party takes with its own proprietary information, but in no event less than commercially reasonable precautions, and (ii) not to use (except in performance of the Flock Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. At the termination of this Agreement, all Proprietary Information will be returned to the Disclosing Party, destroyed or erased (if recorded on an erasable storage medium), together with any copies thereof, when no longer needed for the purposes above, or upon request from the Disclosing Party, and in any case upon termination of the Agreement. Notwithstanding any termination, all confidentiality obligations of Proprietary Information that is trade secret shall continue in perpetuity or until such information is no longer trade secret.
5.2 Usage Restrictions on Flock IP. Flock and its licensors retain all right, title and interest in and to the Flock IP and its components, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.
Customer further acknowledges that Flock retains the right to use the foregoing for any purpose in Flock’s sole discretion. Customer and Authorized End Users shall not: (i) copy or duplicate any of the Flock IP; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of any of the Flock IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Flock IP; (iii) attempt to modify, alter, tamper with or repair any of the Flock IP, or attempt to create any derivative product from any of the foregoing; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Flock
ITEM NO. 8.
9 IP; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within the Flock Services or Flock IP; (vi) use the Flock Services for anything other than the Permitted Purpose; or (vii) assign, sublicense, sell, resell, lease, rent, or otherwise transfer, convey, pledge as security, or otherwise encumber, Customer’s rights. There are no implied rights.
5.3 Disclosure of Footage. Subject to and during the Retention Period, Flock may access, use, preserve and/or disclose (after providing written notice to Customer) the Footage to law enforcement authorities, government officials, and/or third parties, if legally required to do so or if Flock has a good faith belief that such access, use, preservation or disclosure is reasonably necessary to comply with a legal process, enforce this Agreement, or detect, prevent or otherwise address security, privacy, fraud or technical issues, or emergency situations.
6. PAYMENT OF FEES
6.1 Billing and Payment of Fees. Customer shall pay the fees set forth in the applicable Order Form based on the billing structure and payment terms as indicated in the Order Form. If Customer believes that Flock has billed Customer incorrectly, Customer must contact Flock no later than thirty (30) days after the closing date on the first invoice in which the error or problem appeared to receive an adjustment or credit. Customer acknowledges and agrees that a failure to contact Flock within this period will serve as a waiver of any claim. If any undisputed fee is more than thirty (30) days overdue, Flock may, without limiting its other rights and remedies, suspend delivery of its service until such undisputed invoice is paid in full. Flock shall provide at least thirty (30) days’ prior written notice to Customer of the payment delinquency before exercising any suspension right.
6.2 Notice of Changes to Fees. Flock reserves the right to change the fees for subsequent Renewal Terms by providing sixty (60) days’ notice (which may be sent by email) prior to the end of the Initial Term or Renewal Term (as applicable).
6.3 Late Fees. Intentionally omitted.
6.4 Taxes. Customer is responsible for all taxes, levies, or duties, excluding only taxes based on Flock’s net income, imposed by taxing authorities associated with the order. If Flock has the legal obligation to pay or collect taxes, including amount subsequently assessed by a taxing authority, for which Customer is responsible, the appropriate amount shall be invoice to and paid
ITEM NO. 8.
10 by Customer unless Customer provides Flock a legally sufficient tax exemption certificate and Flock shall not charge customer any taxes from which it is exempt. If any deduction or withholding is required by law, Customer shall notify Flock and shall pay Flock any additional amounts necessary to ensure that the net amount that Flock receives, after any deduction and withholding, equals the amount Flock would have received if no deduction or withholding had been required.
7. TERM AND TERMINATION
7.1 Term. The initial term of this Agreement shall be for the period of time set forth on the Order Form (the “Term”). Following the Term, unless otherwise indicated on the Order Form, this Agreement will automatically renew for successive renewal terms of the greater of one year or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
7.2 Termination. Upon termination or expiration of this Agreement, Flock will remove any applicable Flock Hardware at a commercially reasonable time period. In the event of any material breach of this Agreement, the non-breaching Party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach prior to the expiration of such thirty (30) day period (“Cure Period”). Either Party may terminate this Agreement (i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other Party's making an assignment for the benefit of creditors, or (iii) upon the other Party's dissolution or ceasing to do business. In the event of a material breach by Flock, and Flock is unable to cure within the Cure Period, Flock will refund Customer a pro-rata portion of the pre-paid fees for Flock Services not received due to such termination.
7.3 Survival. The following Sections will survive termination: 1, 3, 5, 6, 7, 8.3, 8.4, 9, 11.1 and
11.6.
ITEM NO. 8.
11 8. REMEDY FOR DEFECT; WARRANTY AND DISCLAIMER
8.1 Manufacturer Defect. Upon a malfunction or failure of Flock Hardware or Embedded Software (a “Defect”), Customer must notify Flock’s technical support team. In the event of a Defect, Flock shall make a commercially reasonable attempt to repair or replace the defective Flock Hardware at no additional cost to the Customer. Flock reserves the right, in its sole discretion, to repair or replace such Defect, provided that Flock shall conduct inspection or testing within a commercially reasonable time, but no longer than seven (7) business days after Customer gives notice to Flock.
8.2 Replacements. In the event that Flock Hardware is lost, stolen, or damaged, Customer may request a replacement of Flock Hardware at a fee according to the reinstall fee schedule (https://www.flocksafety.com/reinstall-fee-schedule). In the event that Customer chooses not to replace lost, damaged, or stolen Flock Hardware, Customer understands and agrees that (1) Flock Services will be materially affected, and (2) that Flock shall have no liability to Customer regarding such affected Flock Services, nor shall Customer receive a refund for the lost, damaged, or stolen Flock Hardware.
8.3 Warranties. Flock shall use reasonable efforts consistent with prevailing industry standards to maintain the Flock Services in a manner which minimizes errors and interruptions in the Flock Services and shall perform the Installation Services in a professional and workmanlike manner.
Flock Services may be temporarily unavailable for scheduled maintenance (which to the extent reasonably feasible, only occur during non-peak usage hours) or for unscheduled emergency maintenance, either by Flock or by third-party providers, or because of other causes beyond Flock’s reasonable control, but Flock shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. To the best of Flock’s knowledge as of the Effective Date of this Agreement, Customer’s license use of the Flock Services, Embedded Software, and/or Web Interface, will not infringe the intellectual property rights of any third party. The Flock Services shall be performed in material accordance with this Agreement and in a timely, workmanlike manner. Flock shall not modify or change the Embedded Software or the Flock Services to reflect a material diminution in the form, features, or functionality of such Embedded Software or Flock Services, form that existing as of the Effective Date of this
ITEM NO. 8.
12 Agreement. Flock shall ensure its Embedded Software and the Flock Services comply with all applicable laws and regulations.
8.4 Disclaimer. THE REMEDY DESCRIBED IN SECTION 8.1 ABOVE IS CUSTOMER’S SOLE REMEDY, AND FLOCK’S SOLE LIABILITY, WITH RESPECT TO DEFECTS.
EXCEPT TO THE EXTENT CAUSED BY FLOCK’S NEGLIGENCE OR WILLFUL
MISCONDUCT, FLOCK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AND EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER, THE SERVICES ARE PROVIDED “AS IS”
AND FLOCK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THIS DISCLAIMER ONLY APPLIES TO THE EXTENT ALLOWED BY THE GOVERNING LAW OF THE STATE MENTIONED IN SECTION 11.6.
8.5 Insurance. Flock will maintain commercial general liability policies as stated in Exhibit B.
8.6 Force Majeure. Parties are not responsible or liable for any delays or failures in performance from any cause beyond their control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, pandemics (including the spread of variants), issues of national security, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, supply chain shortages of equipment or supplies, financial institution crisis, weather conditions or acts of hackers, internet service providers or any other third party acts or omissions. Each Party will, however, make all reasonable efforts to remove or eliminate such a cause of delay or failures in performance and will, upon the cessation of the cause, diligently pursue performance of its obligations in this Agreement.
9. LIMITATION OF LIABILITY; INDEMNITY
9.1 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY,
FLOCK, ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND
ITEM NO. 8.
13 EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED
THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER THEORY: (A) FOR LOSS OF REVENUE, BUSINESS OR BUSINESS INTERRUPTION; (B) INCOMPLETE, CORRUPT, OR INACCURATE DATA; (C) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (D) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (E) FOR ANY MATTER BEYOND FLOCK’S ACTUAL
KNOWLEDGE OR REASONABLE CONTROL INCLUDING REPEAT CRIMINAL ACTIVITY OR INABILITY TO CAPTURE FOOTAGE; OR (F) FOR ANY AMOUNTS
THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,
EXCEED TWO TIMES THE AMOUNT OF THE FEES PAID AND/OR PAYABLE BY
CUSTOMER TO FLOCK FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT OR OMISSION THAT GAVE RISE TO THE
LIABILITY, IN EACH CASE, WHETHER OR NOT FLOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY OF SECTION
ONLY APPLIES TO THE EXTENT ALLOWED BY THE GOVERNING LAW OF THE STATE REFERENCED IN SECTION 11.6. NOTWITHSTANDING ANYTHING TO THE
CONTRARY, THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY (I)
IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II)
INDEMNIFICATION AND WARRANTY OBLIGATIONS, OR (III) LIABILITY RELATING TO INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Responsibility. Each Party to this Agreement shall assume the responsibility and liability for the acts and omissions of its own employees, officers, or agents, in connection with the performance of their official duties under this Agreement. Each Party to this Agreement shall be liable for the torts of its own officers, agents, or employees.
9.3 Flock Indemnity. Flock shall defend, indemnify, and hold harmless Customer, its agents, officers, officials, and employees, from liability of any kind, including claims, demands, liabilities, actions, damages, fines, sanctions, costs (including defense) and expenses, arising out of a claim of infringement, actual or alleged, direct or contributory, of any intellectual property rights in any way related to this Agreement or to the Customer’s authorized use of the Embedded
ITEM NO. 8.
14 Software or Flock Services. Flock shall not enter into any stipulated judgment or settlement that purports to bind Customer without Customer’s express written authorization, which shall not be unreasonably withheld or delayed. Flock further agrees to defend, indemnify, and hold harmless Customer, its agents, officers, officials, and employees, from and against any and all liability, claim, action, loss, injury, damage, judgment, fines, sanctions, or expenses, including reasonable attorneys’ fees and costs (“Losses”) caused by or resulting from the negligence, recklessness, or willful misconduct of Flock, Flock’s employees, agents, or subcontractors in any way related to this Agreement. Flock’s duty to indemnify and hold harmless hereunder shall not apply to the extent such Losses are caused by the sole or active negligence or willful misconduct of Customer.
10. INSTALLATION SERVICES AND OBLIGATIONS
10.1 Ownership of Hardware. Flock Hardware is owned and shall remain the exclusive property of Flock. Title to any Flock Hardware shall not pass to Customer upon execution of this Agreement, except as otherwise specifically set forth in this Agreement. Except as otherwise expressly stated in this Agreement, Customer is not permitted to remove, reposition, re-install, tamper with, alter, adjust or otherwise take possession or control of Flock Hardware. Customer agrees and understands that in the event Customer is found to engage in any of the foregoing restricted actions, all warranties herein shall be null and void, and this Agreement shall be subject to immediate termination for material breach by Customer. Customer shall not perform any acts which would interfere with the retention of title of the Flock Hardware by Flock. Should Customer default on any payment of the Flock Services, Flock may remove Flock Hardware at Flock’s discretion. Such removal, if made by Flock, shall not be deemed a waiver of Flock’s rights to any damages Flock may sustain as a result of Customer’s default and Flock shall have the right to enforce any other legal remedy or right.
10.2 Deployment Plan. Flock shall advise Customer on the location and positioning of the Flock Hardware for optimal product functionality, as conditions and locations allow. Flock will collaborate with Customer to design the strategic geographic mapping of the location(s) and implementation of Flock Hardware to create a deployment plan (“Deployment Plan”). In the event that Flock determines that Flock Hardware will not achieve optimal functionality at a
ITEM NO. 8.
15 designated location, Flock shall have final discretion to veto a specific location, and will provide alternative options to Customer.
10.3 Changes to Deployment Plan. After installation of Flock Hardware, any subsequent requested changes from Customer to the Deployment Plan, including, but not limited to, relocating, re-positioning, adjusting of the mounting, removing foliage, replacement, changes to heights of poles will incur a fee according to the reinstall fee schedule located at (https://www.flocksafety.com/reinstall-fee-schedule). Customer will receive prior notice and confirm approval of any such fees.
10.4 Customer Installation Obligations. Customer is responsible for any applicable supplementary cost as described in the Customer Implementation Guide, attached hereto as Exhibit C (“Customer Obligations”). Customer represents and warrants that it has, or shall lawfully obtain, all necessary right title and authority and hereby authorizes Flock to install the Flock Hardware at the designated locations and to make any necessary inspections or maintenance in connection with such installation.
10.5 Flock’s Obligations. Installation of any Flock Hardware shall be installed in a professional manner within a commercially reasonable time from the Effective Date of this Agreement. Upon removal of Flock Hardware, Flock shall restore the location to its original condition, ordinary wear and tear excepted. Flock will continue to monitor the performance of Flock Hardware for the length of the Term. Flock may use a subcontractor or third party to perform certain obligations under this Agreement, provided that Flock’s use of such subcontractor or third party shall not release Flock from any duty or liability to fulfill Flock’s obligations under this Agreement.
11. MISCELLANEOUS
11.1 Compliance With Laws. Parties shall comply with all applicable local, state and federal laws, regulations, policies and ordinances and their associated record retention schedules, including responding to any subpoena request(s).
11.2 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
ITEM NO. 8.
16 11.3 Assignment. This Agreement is not assignable, transferable or sublicensable by either Party, without prior consent. Notwithstanding the foregoing, either Party may assign this Agreement, without the other Party's consent, (i) to any parent, subsidiary, or affiliate entity, or (ii) to any purchaser of all or substantially all of such Party's assets or to any successor by way of merger, consolidation or similar transaction.
11.4 Entire Agreement. This Agreement, together with the Order Form(s), the reinstall fee schedule (https://www.flocksafety.com/reinstall-fee-schedule), and any attached exhibits are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous or contemporaneous negotiations, discussions or agreements, whether written and oral , communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. None of Customer’s purchase orders, authorizations or similar documents will alter the terms of this Agreement, and any such conflicting terms are expressly rejected. Any mutually agreed upon future purchase order is subject to these legal terms and does not alter the rights and obligations under this Agreement, except that future purchase orders may outline additional products, services, quantities and billing terms to be mutually accepted by Parties. In the event of any conflict of terms found in this Agreement or any other terms and conditions, the terms of this Agreement shall prevail. Customer agrees that Customer’s purchase is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by Flock with respect to future functionality or feature.
11.5 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Parties do not have any authority of any kind to bind each other in any respect whatsoever. Flock shall at all times be and act as an independent contractor to Customer.
11.6 Governing Law; Venue. This Agreement shall be governed by the laws of the state in which the Customer is located. The Parties hereto agree that venue would be proper in the chosen courts of the State and County in which the Customer is located. The Parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement.
11.7 Special Terms. Flock may offer certain special terms which are indicated in the proposal and will become part of this Agreement, upon Customer’s prior written consent and the mutual
ITEM NO. 8.
17 execution by authorized representatives (“Special Terms”). To the extent that any terms of this Agreement are inconsistent or conflict with the Special Terms, the Special Terms shall control.
11.8 Publicity. Upon prior written consent from Customer, Flock may reference and use Customer’s name and trademarks and disclose the nature of the Services, for the sole purpose of business and development and marketing efforts.
11.9 Feedback. If Customer or Authorized End User provides any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the subject matter hereunder, Agency or Authorized End User hereby assigns to Flock all right, title and interest (including intellectual property rights) with respect to or resulting from any of the foregoing.
11.10 Export. Customer may not remove or export from the United States or allow the export or re-export of the Flock IP or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign Customer or authority. As defined in Federal Acquisition Regulation (“FAR”), section
2.101, the Services, the Flock Hardware and Documentation are “commercial items” and according to the Department of Defense Federal Acquisition Regulation (“DFAR”) section 252.2277014(a)(1) and are deemed to be “commercial computer software” and “commercial computer software documentation.” Flock is compliant with FAR Section 889 and does not contract or do business with, use any equipment, system, or service that uses the enumerated banned Chinese telecommunication companies, equipment or services as a substantial or essential component of any system, or as critical technology as part of any Flock system.
Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
11.11 Headings. The headings are merely for organization and should not be construed as adding meaning to the Agreement or interpreting the associated sections.
11.12 Authority. Each of the below signers of this Agreement represent that they understand this Agreement and have the authority to sign on behalf of and bind the Parties they are representing.
ITEM NO. 8.
18 11.13 Conflict. In the event there is a conflict between this Agreement and any applicable statement of work, or Customer purchase order, this Agreement controls unless explicitly stated otherwise.
11.14 Morality. Intentionally omitted.
11.15 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt to the address listed on the Order Form (or, if different, below), if sent by certified or registered mail, return receipt requested.
FLOCK NOTICES ADDRESS:
1170 HOWELL MILL ROAD, NW SUITE 210
ATLANTA, GA 30318
ATTN: LEGAL DEPARTMENT
EMAIL: [email protected]
Customer NOTICES ADDRESS:
ADDRESS: 110 E. Main St. Los Gatos, CA 95030
ATTN: Police Department, Heather St. John
EMAIL: [email protected]
11.16 Non-Appropriation. Notwithstanding any other provision of this Agreement, all obligations of the Customer under this Agreement which require the expenditure of funds are conditioned on the availability of funds appropriated for that purpose. Customer shall have the right to terminate this Agreement for non appropriation with thirty (30) days written notice without penalty or other cost.
ITEM NO. 8.
19 11.17 Counterparts. The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be deemed an original but all of which, together, shall constitute one and the same instrument. A scanned, electronic, facsimile or other copy of a party’s signature shall be accepted and valid as an original.
The parties enter into this Agreement as of the date first written above.
FLOCK
By: __________________________ Date: ________________
Printed: ___________________________ Title: __________________ By: __________________________ Date: ________________
Printed: ___________________________ Title: __________________
TOWN OF LOS GATOS
________________________ Date: ____________________
Laurel Prevetti, Town Manager
Approved As To Form:
_____________________________
Gabrielle Whelan, Town Attorney
Attest:
_____________________________
Wendy Wood, CMC, Town Clerk
ITEM NO. 8.
20 EXHIBIT A
ORDER FORM
ITEM NO. 8.
Flock Safety + CA - Los Gatos PD
______________
Flock Group Inc.
1170 Howell Mill Rd, Suite 210
Atlanta, GA 30318
______________
MAIN CONTACT:
Graham Carter
[email protected]
(415) 329-1307
ITEM NO. 8.
EXHIBIT A
ORDER FORM
Customer: CA - Los Gatos PD Initial Term: 60 Months
Legal Entity Name: CA - Los Gatos PD Renewal Term: 24 Months Accounts Payable Email: [email protected] Payment Terms: Net 30 Address: 110 E Main St Los Gatos, California 95030 Billing Frequency: Annual - First Year at Signing.
Retention Period: 30 Days
Hardware and Software Products
Annual recurring amounts over subscription term
Item Cost Quantity Total
Flock Safety Platform $51,000.00
Flock Safety Flock OS
FlockOS ™ - Essentials Included 1 Included
Flock Safety LPR Products
Flock Safety Falcon ® Included 17 Included
Professional Services and One Time Purchases
Item Cost Quantity Total
One Time Fees
Subtotal Year 1: $51,000.00
Annual Recurring Subtotal: $51,000.00
Estimated Tax: $0.00
Contract Total: $255,000.00
Taxes shown above are provided as an estimate. Actual taxes are the responsibility of the Customer. This Agreement will automatically renew for successive renewal terms of the greater of one year or the length set forth on the Order Form (each, a “Renewal Term”) unless either Party gives the other Party notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
Special Terms:
• The Term of this contract shall be from 03/01/2024 - 02/28/2029.
ITEM NO. 8.
Billing Schedule
Billing Schedule Amount (USD)
Year 1
At Contract Signing $51,000.00
Annual Recurring after Year 1 $51,000.00
Contract Total $255,000.00
*Tax not included
ITEM NO. 8.
Product and Services Description
Flock Safety Platform Items Product Description Terms
FlockOS™ Flock Safety’s situational awareness operating system.
Flock Safety Falcon ®
An infrastructure-free license plate reader camera that utilizes Vehicle Fingerprint® technology to capture vehicular attributes.
The Term shall commence upon first installation and validation of Flock Hardware.
One-Time Fees Service Description
Installation on existing
infrastructure
One-time Professional Services engagement. Includes site & safety assessment, camera setup & testing, and shipping & handling in accordance with the Flock Safety Advanced Implementation Service Brief.
Professional Services - Standard
Implementation Fee
One-time Professional Services engagement. Includes site and safety assessment, camera setup and testing, and shipping and handling in accordance with the Flock Safety Standard Implementation Service Brief.
Professional Services -
Advanced Implementation Fee
One-time Professional Services engagement. Includes site & safety assessment, camera setup & testing, and shipping & handling in accordance with the Flock Safety Advanced Implementation Service Brief.
FlockOS Features & Description
FlockOS Features Description
Community Network Access
The ability to request direct access to feeds from privately owned Flock Safety Falcon® LPR cameras located in neighborhoods, schools, and businesses in your community, significantly increasing actionable evidence that clears cases.
Unlimited Users Unlimited users for FlockOS
State Network (License Plate Lookup Only) Allows agencies to look up license plates on all cameras opted into the Flock Safety network within your state.
Nationwide Network (License Plate Lookup Only)
With the vast Flock Safety sharing network, law enforcement agencies no longer have to rely on just their devices alone. Agencies can leverage a nationwide system boasting 10 billion additional plate reads per month to amplify the potential to collect vital evidence in otherwise dead-end investigations.
Time & Location Based Search Search full, partial, and temporary plates by time at particular device locations License Plate Lookup Look up specific license plate location history captured on Flock devices Vehicle Fingerprint Search Search footage using Vehicle Fingerprint™ technology. Access vehicle type, make, color, license plate state, missing / covered plates, and other unique features like bumper stickers, decals, and roof racks.
Insights & Analytics Reporting tool to help administrators manage their LPR program with device performance data, user and network audits, plate read reports, hot list alert reports, event logs, and outcome reports.
ESRI Based Map Interface Map-based interface that consolidates all data streams and the locations of each connected asset, enabling greater situational awareness and a common operating picture.
Real-Time NCIC Alerts on Flock ALPR Cameras
Receive automated alerts when vehicles entered into established databases for missing and wanted persons are detected, including the FBI’s National Crime Information Center (NCIC) and National Center for Missing & Exploited Children (NCMEC) databases.
Unlimited Custom Hot Lists Ability to add a suspect’s license plate to a custom list and get alerted when it passes by a Flock camera Law Enforcement Network Access The ability to request direct access to evidence detection devices from Law Enforcement agencies outside of your jurisdiction.
ITEM NO. 8.
By executing this Order Form, Customer represents and warrants that it has read and agrees all of the terms and conditions contained in the Terms of Service located at https://www.flocksafety.com/terms-and-conditions /L1/
The Parties have executed this Agreement as of the dates set forth below.
FLOCK GROUP, INC. Customer: CA - Los Gatos PD
By:
\FSSignature2\
By:
\FSSignature1\
Name:
\FSFullname2\
Name:
\FSFullname1\
Title:
\FSTitle2\
Title:
\FSTitle1\
Date:
\FSDateSigned2\
Date:
\FSDateSigned1\
PO Number:
ITEM NO. 8.
21 EXHIBIT B
INSURANCE
Required Coverage. Flock shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the services under this Agreement and the results of that work by Flock or its agents, representatives, employees or subcontractors. Insurance shall be placed with insurers with a current A. M. Best rating of no less than “A” and “VII”.
Flock shall obtain and, during the term of this Agreement, shall maintain policies of professional liability (errors and omissions), automobile liability, and general liability insurance for insurable amounts of not less than the limits listed herein. The insurance policies shall provide that the policies shall remain in full force during the life of the Agreement. Flock shall procure and shall maintain during the life of this Agreement Worker's Compensation insurance as required by applicable State law for all Flock employees.
Types and Amounts Required. Flock shall maintain, at minimum, the following insurance coverage for the duration of this Agreement:
(i) Commercial General Liability insurance written on an occurrence basis with minimum limits of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and product and completed operations coverage;
(ii) Umbrella or Excess Liability insurance written on an occurrence basis with minimum limits of Ten Million Dollars ($10,000,000) per occurrence and Ten Million Dollars ($10,000,000) in the aggregate. Flock may use excess liability/umbrella policies to meet the required liability limits on the condition that they provide all of the insurance coverages required herein, including, but not limited to, primary and non-contributory, additional insured, SelfInsured Retentions (SIRs), indemnity, and defense requirements. The excess liability/umbrella insurance policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying CGL insurance. No insurance policies maintained by the additional insureds, whether primary or excess, and which also apply to a loss
ITEM NO. 8.
22 covered hereunder, shall be called upon to contribute to a loss until the Flock’s primary and excess liability policies are exhausted;
(iii) Professional Liability/Errors and Omissions insurance with minimum limits of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate; Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after date of completion of the services under this Agreement. If coverage is canceled or non-renewed and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date or start of work date, Flock must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the contracted work;
(iv) Commercial Automobile Liability insurance with a minimum combined single limit of One Million Dollars ($1,000,000) per occurrence for bodily injury, death, and property coverage, including owned and non-owned and hired automobile coverage; and (v) Cyber Liability insurance written on an occurrence basis with minimum limits of Five Million Dollars ($5,000,000) and Five Million Dollars ($5,000,000) in the aggregate.
Coverage shall be sufficiently broad to respond to the duties and obligations undertaken by Flock in this Agreement. The policy(ies) shall include coverage for claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information.
The policy(ies) shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
The policy(ies) shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the Customer in the care, custody, or control of Flock. (vi) Workers’ Compensation As Required By The State Of California, With Statutory Limits, And Employer’s Liability Insurance: $1,000,000 per accident for bodily injury or disease. The Worker’s Compensation policy must be endorsed with a waiver of subrogation in favor of the Customer for all work performed by Flock and its employees.