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CONSULTING SERVICES AGREEMENT BETWEEN
THE TOWN OF LOS ALTOS HILLS AND
COTTON, SHIRES AND ASSOCIATES,INC.
THIS AGREEMENT for consulting services is made by and between the Town of Los Altos Hills
"Town") and Cotton, Shires and Associates, Inc. ("Consultant") (together referred to as the"Parties") as of
,2011 (the"Effective Date").
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to Town the services described in the Scope of Work attached as Exhibit A, and incorporated
herein, at the time and place and in the manner specified therein. In the event of a conflict in or
inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall
end on February 15,2011,and Consultant shall complete the work described in Exhibit A
on or before that date, unless the term of the Agreement is otherwise terminated or
extended, as provided for in Section 8. The time provided to Consultant to complete the
services required by this Agreement shall not affect the Town's right to terminate the
Agreement, as referenced in Section 8.
1.2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement according to the standards observed by a competent practitioner of the
profession in which Consultant is engaged.
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that Town,in its sole discretion, at any
time during the term of this Agreement,desires the reassignment of any such persons,
Consultant shall, immediately upon receiving notice from Town of such desire of Town,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Section 1.1 above and to satisfy Consultant's obligations hereunder.
1.5 Public Works Requirements. Because the services described in Exhibit A include°work
performed during the design and preconstruction phases of construction including, but not
limited to, inspection and land surveying work,the services constitute a public works
within the definition of Section 1720(a)(1)of the California Labor Code. As a result,
Consultant is required to comply with the provisions of the Labor Code applicable to public
works, to the extent set forth in Exhibit C. Consultant shall waive, indemnify, hold
harmless, and defend Town concerning any liability arising out of Labor Code Section
1720 et seq.
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Section 2. COMPENSATION. Town hereby agrees to pay Consultant a sum not to exceed
$28,000.00,notwithstanding any contrary indications that may be contained in Consultant's proposal, for
services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict
between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of
compensation,the Agreement shall prevail. Town shall pay Consultant for services rendered pursuant to
this Agreement at the time and in the manner set forth herein. The payments specified below shall be the
only payments from Town to Consultant for services rendered pursuant to this Agreement. Consultant shall
submit all invoices to Town in the manner specified herein. Except as specifically authorized by Town in
writing, Consultant shall not bill Town for duplicate services performed by more than one person.
Consultant and Town acknowledge and agree that compensation paid by Town to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently,the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. Town
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information:
• Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice,
etc.;
• The beginning and ending dates of the billing period;
• A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement,and
the percentage of completion;
• At Town's option,for each work item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person doing
the work, the hours spent by each person,a brief description of the work, and
each reimbursable expense;
• The total number of hours of work performed under the Agreement by Consultant
and each employee,agent,and subcontractor of Consultant performing services
hereunder;
• The Consultant's signature;
• Consultant shall give separate notice to the Town when the total number of hours
worked by Consultant and any individual employee,agent, or subcontractor of
Consultant reaches or exceeds 800 hours within a 12-month period under this
Agreement and any other agreement between Consultant and Town. Such notice
shall include an estimate of the time necessary to complete work described in
Exhibit A and the estimate of time necessary to complete work under any other
agreement between Consultant and Town, if applicable.
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2.2 Monthly Payment. Town shall make monthly payments, based on invoices received,for
services satisfactodly performed, and for authorized reimbursable costs incurred. Town
shall have 30 days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
2.3 Final Payment. Town shall pay the last 10%of the total sum due pursuant to this
Agreement within 60 days after completion of the services and submittal to Town of a final
invoice, if all services required have been satisfactorily performed.
2.4 Total Payment. Town shall pay for the services to be rendered by Consultant pursuant to
this Agreement. Town shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering services pursuant to this Agreement.
Town shall make no payment for any extra,further,or additional service pursuant to this
Agreement.
In no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment
2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto as Exhibit B.
2.6 Reimbursable Expenses. Reimbursable expenses are included in the total amount of
compensation provided under this Agreement that shall not be exceeded.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
2.8 Payment upon Termination. In the event that the Town or Consultant terminates this
Agreement pursuant to Section 8,the Town shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactodly completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein,Consultant shall, at its sole
cost and expense,provide all facilities and equipment that may be necessary to perform the services
required by this Agreement.
Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant,at its own cost and expense, unless otherwise specified below, shall procure the types and
amounts of insurance listed below against claims for injuries to persons or damages to property that may
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arise from or in connection with the performance of the work hereunder by the Consultant and its agents,
representatives,employees,and subcontractors. Consistent with the following provisions, Consultant shall
provide proof satisfactory to Town of such insurance that meets the requirements of this section and under
forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to
the Town. Consultant shall maintain the insurance policies required by this section throughout the term of
this Agreement. The cost of such insurance shall be included in the Consultants bid. Consultant shall not
allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance
required herein for the subcontractor(s) and provided evidence that such insurance is in effect to Town.
Verification of the required insurance shall be submitted and made part of this Agreement prior to
execution. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Compensation Insurance and Employer's Liability Insurance shall be provided with limits of
not less than$1,000,000 per accident. In the alternative,Consultant may rely on a self-
insurance program to meet those requirements,but only if the program of self-insurance
complies fully with the provisions of the California Labor Code. Determination of whether a
self-insurance program meets the standards of the Labor Code shall be solely in the
discretion of the Contract Administrator. The insurer, if insurance is provided,or the
Consultant, if a program of self-insurance is provided,shall waive all rights of subrogation
against the Town and its officers, officials, employees, and volunteers for loss arising from
work performed under this Agreement.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General requirements. Consultant,at its own cost and expense,shall maintain
commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than$1,000,000 per occurrence,combined
single limit coverage for risks associated with the work contemplated by this
Agreement. If a Commercial General Liability Insurance or an Automobile Liability
form or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required
occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting
therefrom, and damage to property resulting from activities contemplated under
this Agreement,including the use of owned and non-owned automobiles.
42.2 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (most recent edition)covering comprehensive General Liability on an
"occurrence"basis. Automobile coverage shall be at least as broad as Insurance
Services Office Automobile Liability form CA 0001 (most recent edition), Code 1
(any auto). No endorsement shall be attached limiting the coverage.
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4.2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an occurrence basis, and
not on a claims-made basis.
b. Town, its officers,officials,employees,and volunteers are to be covered
as insureds as respects: liability arising out of work or operations
performed by or on behalf of the Consultant;or automobiles owned,
leased, hired,or borrowed by the Consultant
c. For any claims related to this Agreement or the work hereunder,the
Consultant's insurance covered shall be primary insurance as respects
the Town, its officers,officials,employees, and volunteers. Any insurance
or self-insurance maintained by the Town, its officers,officials, employees,
or volunteers shall be excess of the Consultant's insurance and shall not
contribute with it.
d. Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be canceled by either party,except after 30 days'
prior written notice has been provided to the Town.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Consultant, at its own cost and expense,shall maintain
for the period covered by this Agreement professional liability insurance for
licensed professionals performing work pursuant to this Agreement in an amount
not less than $1,000,000 covering the licensed professionals'errors and
omissions. Any deductible or self-insured retention shall not exceed$150,000 per
claim.
4.3.2 Claims-made limitations. The following provisions shall apply if the professional
liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be before the
date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement or the
work, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another
claims-made policy form with a retroactive date that precedes the date of
this Agreement,Consultant must purchase an extended period coverage
for a minimum of five years after completion of work under this
Agreement.
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d. A copy of the claim reporting requirements must be submitted to the Town
for review prior to the commencement of any work under this Agreement.
4.4 All Policies Requirements.
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VII.
4.4.2 Verification of coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish Town with complete copies of all policies delivered to
Consultant by the insurer, including complete copies of all endorsements attached
to those policies. All copies of policies and endorsements shall show the signature
of a person authorized by that insurer to bind coverage on its behalf. If the Town
does not receive the required insurance documents prior to the Consultant
beginning work, it shall not waive the Consultant's obligation to provide them. The
Town reserves the right to require complete copies of all required insurance
policies at any time.
4.4.3 Deductibles and Self-Insured Retentions. Consultant shall disclose to and
obtain the written approval of Town for the self-insured retentions and deductibles
before beginning any of the services or work called for by any term of this
Agreement. At the option of the Town,either:the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects the Town, its officers,
employees, and volunteers;or the Consultant shall provide a financial guarantee
satisfactory to the Town guaranteeing payment of losses and related
investigations, claim administration and defense expenses.
4.4.4 Wasting Policies. No policy required by this Section 4 shall include a"wasting"
policy limit(i.e.limit that is eroded by the cost of defense).
4.4.5 Waiver of Subrogation, Consultant hereby agrees to waive subrogation which
any insurer or contractor may require from vendor by virtue of the payment of any
loss. Consultant agrees to obtain any endorsements that may be necessary to
affect this waiver of subrogation.
The Workers'Compensation policy shall be endorsed with a waiver of subrogation
in favor of the entity for all work performed by the consultant,its employees,
agents,and subcontractors.
4.4.6 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
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4.5 Remedies. In addition to any other remedies Town may have if Consultant fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time
herein required,Town may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies Town may have and are not the exclusive remedy for
Consultant's breach:
• Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
• Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder,or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof; and/or
• Terminate this Pe.)
Agreement.
Section 5. INDEMNIFICATION AND CONSULTANTS RESPONSIBILITIES.
Consultant shall indemnify,defend with counsel acceptable to Town, and hold harmless Tow and its
officers,officials,employees, agents and volunteers from and against any and all liability,I s,damage,
claims,expenses,and costs(including without limitation,attorney's fees and costs and f s of litigation)
(collectively, "Liability")of every nature arising out of or in connection with Consultant' erformance of the TS
Services or its failure to comply with any of its obligations contained in this Agreemen ,except such Liability c c
caused by the sole negligence or willful misconduct of Town.
The Consultant's obligation to defend and indemnify shall not be excused because of the Consultants
inability to evaluate Liability or because the Consultant evaluates Liability and determines that the
Consultant is not liable to the claimant. The Consultant must respond within 30 days,to the tender of any
claim for defense and indemnity by the Town, unless this time has been extended by the Town. If the
Consultant fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any
other remedy authorized by law,so much of the money due the Consultant under and by virtue of this
Agreement as shall reasonably be considered necessary by the Town, may be retained by the Town until
disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the
tender of defense,whichever occurs first.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any
type to express or implied indemnity against the Indemnitees.
Notwithstanding the forgoing, to the extent this Agreement is a"construction contract"as defined by
California Civil Code Section 2782, as may be amended from time to time, such duties of consultant to
indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
In the event that Consultant or any employee,agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System(PERS)to be eligible for enrollment in PERS as an employee of Town, Consultant shall
indemnify,defend, and hold harmless Town for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Consultant or its employees, agents,or subcontractors,as well
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as for the payment of any penalties and interest on such contributions,which would otherwise be the
responsibility of Town.
Section 6. STATUS OF CONSULTANT.
6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall
be an independent contractor and shall not be an employee of Town. Town shall have the
right to control Consultant only insofar as the results of Consultant's services rendered
pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3;
however,otherwise Town shall not have the right to control the means by which
Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding
any other Town,state,or federal policy,rule, regulation, law,or ordinance to the contrary,
Consultant and any of its employees, agents, and subcontractors providing services under
this Agreement shall not qualify for or become entitled to, and hereby agree to waive any
and all claims to, any compensation, benefit,or any incident of employment by Town,
including but not limited to eligibility to enroll in the California Public Employees Retirement
System (PERS)as an employee of Town and entitlement to any contribution to be paid by
Town for employer contributions and/or employee contributions for PERS benefits.
6.2 Consultant Not an Agent. Except as Town may specify in writing,Consultant shall have
no authority,express or implied, to act on behalf of Town in any capaTown whatsoever as
an agent. Consultant shall have no authority,express or implied, pursuant to this
Agreement to bind Town to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant and any subcontractors
shall comply with all applicable rules and regulations to which Town is bound by the terms
of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to Town that Consultant and
its employees, agents,and any subcontractors have all licenses, permits, qualifications,
and approvals of whatsoever nature that are legally required to practice their respective
professions. Consultant represents and warrants to Town that Consultant and its
employees, agents,any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals that are
legally required to practice their respective professions. In addition to the foregoing,
Consultant and any subcontractors shall obtain and maintain during the term of this
Agreement valid Business Licenses from Town.
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7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the
basis of a person's race, religion, color, national origin, age, physical or mental handicap or
disability, medical condition, marital status,sex,or sexual orientation,against any
employee, applicant for employment, subcontractor, bidder for a subcontract,or participant
in, recipient of,or applicant for any services or programs provided by Consultant under this
Agreement. Consultant shall comply with all applicable federal, state, and local laws,
policies, rules,and requirements related to equal opportunity and nondiscrimination in
employment,contracting, and the provision of any services that are the subject of this
Agreement, including but not limited to the satisfaction of any positive obligations required
of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. Town may cancel this Agreement at any time and without cause upon
written notification to Consultant.
Consultant may cancel this Agreement upon 30 days'written notice to Town and shall
include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination;Town, however, may condition payment of
such compensation upon Consultant delivering to Town any or all documents,
photographs,computer software,video and audio tapes, and other materials provided to
Consultant or prepared by or for Consultant or the Town in connection with this
Agreement.
8.2 Extension. Town may, in its sole and exclusive discretion,extend the end dale of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Consultant understands and
agrees that, if Town grants such an extension,Town shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for in this
Agreement. Similarly, unless authorized by the Contract Administrator,Town shall have
no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period.
8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assignment and Subcontracting. Town and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant's unique personal competence,experience, and specialized
personal knowledge. Moreover, a substantial inducement to Town for entering into this
Agreement was and is the professional reputation and competence of Consultant.
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Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator, Consultant shall not subcontract any portion of the
performance contemplated and provided for herein,other than to the subcontractors noted
in the proposal,without prior written approval of the Contract Administrator.
8,5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between Town and Consultant shall survive
the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement,Town's remedies shall included,but not be limited to,the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications,drawings, reports,design documents,and any
other work product prepared by Consultant pursuant to this Agreement;
8.6.3 Retain a different consultant to complete the work described in Exhibit A not
finished by Consultant;or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the amount that
Town would have paid Consultant pursuant to Section 2 if Consultant had
completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data,maps,
models,charts, studies,surveys, photographs, memoranda, plans,studies,specifications,
records,files,or any other documents or materials,in electronic or any other form,that
Consultant prepares or obtains pursuant to this Agreement and that relate to the matters
covered hereunder shall be the property of the Town. Consultant hereby agrees to deliver
those documents to the Town upon termination of the Agreement. It is understood and
agreed that the documents and other materials, including but not limited to those described
above, prepared pursuant to this Agreement are prepared specifically for the Town and are
not necessarily suitable for any future or other use. Town and Consultant agree that, until
final approval by Town, all data, plans, specifications, reports and other documents are
confidential and will not be released to third parties without prior written consent of both
parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the Town under this Agreement for a minimum of 3 years, or for any longer period
required by law,from the date of final payment to the Consultant to this Agreement.
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9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires Consultant to maintain shall be made available for inspection,audit,
and/or copying at any time during regular business hours, upon oral or written request of
the Town. Under California Government Code Section 8546.7, if the amount of public
funds expended under this Agreement exceeds$10,000.00,the Agreement shall be
subject to the examination and audit of the State Auditor, at the request of Town or as part
of any audit of the Town,for a period of 3 years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for
declaratory relief,to enforce or interpret the provision of this Agreement,the prevailing
party shall be entitled to reasonable attorneys'fees in addition to any other relief to which
that party may be entitled. The cowl may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement,the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Monterey or in the United States District Court for
the Northern District of California.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void,or unenforceable,the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper.
10.7 Conflict of Interest. Consultant may serve other clients,but none whose activities within
the corporate limits of Town or whose business, regardless of location,would place
Consultant in a'conflict of interest"as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any Town official in the work performed pursuant to this
Agreement. No officer or employee of Town shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 et seq.
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Consultant hereby warrants that it is not now, nor has it been in the previous 12 months,
an employee, agent, appointee,or official of the Town. If Consultant was an employee,
agent, appointee,or official of the Town in the previous twelve months, Consultant
warrants that it did not participate in any manner in the forming of this Agreement.
Consultant understands that, if this Agreement is made in violation of Government Code§
1090 et seq.,the entire Agreement is void and Consultant will not be entitled to any
compensation for services performed pursuant to this Agreement,including reimbursement
of expenses, and Consultant will be required to reimburse the Town for any sums paid to
the Consultant. Consultant understands that, in addition to the foregoing, it may be subject
to criminal prosecution for a violation of Government Code§ 1090 and,if applicable,will
be disqualified from holding public office in the State of California.
10.8 Solicitation. Consultant agrees not to solicit business at any meeting,focus group,or
interview related to this Agreement, either orally or through any written materials.
10.9 Contract Administration. This Agreement shall be administered by Richard Chiu
("Contract Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to:
Cotton,Shires and Associates, Inc.
Attn: David T.Schrier
330 Village Lane
Los Gatos, CA 95030
Any written notice to Town shall be sent to:
Town of Los Altos Hills
Attn: Richard Chiu
26379 Fremont Road
Los Altos Hills, CA 94022
10.11 Professional Seal. Where applicable in the determination of the contract administrator,
the first page of a technical report,first page of design specifications, and each page of
construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled
'Seal and Signature of Registered Professional with report/design responsibility,"as in the
following example.
Seal and Signature of Registered Professional with
report/design responsibility.
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it
10.12 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibits A,B, and C represents the entire and integrated
agreement between Town and Consultant and supersedes all prior negotiations,
representations,or agreements,either written or oral.
Exhibit A Scope of Services
Exhibit B Payment Schedule
Exhibit C Public Works Requirements
10.13 Counterparts. This Agreement may be executed in multiple counterparts,each of which
shall be an original and all of which together shall constitute one agreement.
Consulting Services Agreement between
Town of Los Altos Hills and Cotton, Shires and Associates, Inc. Page 13 of 14
V
The Parties have executed this Agreement as of the Effective Date.
TOWN OF LOS ALTOS HILLS CONSULTANT
Loa
Carl Cahill,City Manager David T. Schrier, Principal Geotechnical Engineer
Ca-Neuf( Sl-wits awl Ar5sc44, (inc.
Attest:
Deborah L. Padovan,City Clerk
Approved as to Form:
Steven T. attas,City Attorney
Consulting Services Agreement between
Town of Los Altos Hills and Cotton, Shires and Associates, Inc. Page 14 of 14
• •
RESOLUTION NO. 55-11
A RESOLUTION OF THE CITY COUNCIL OF THE TOWN OF
LOS ALTOS HILLS AWARDING A CONTRACT TO PROVIDE
GEOTECHNICAL AND DESIGN SERVICES FOR ELENA ROAD SLIDE
REPAIR PROJECT TO COTTON SHIRES & ASSOCIATES,INC.
WHEREAS, the City Engineer of the Town of Los Altos Hills did, duly examine and consider
the proposal submitted for providing geotechnical and design services for Elena Road Slide
Repair Project in Los Altos Hills, California; and
WHEREAS, the City Engineer recommends that the contract for said project be awarded to
Cotton Shires &Associates, Inc. in an amount not to exceed$28,000;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the Town of Los Altos Hills
that:
1. The City Manager is hereby authorized and directed to execute a contract to the above-
named firm on behalf of the Town of Los Altos Hills.
The above and foregoing resolution was passed and adopted by the City Council of the
Town of Los Altos Hills at a special meeting held on the 22nd day of September, 2011 by the
following vote:
AYES: Summit, Larsen, Mordo, Radford, Waldeck
NOES: None
ABSTAIN: None
ABSENT: None •
BY:
Ging S it, Mayor
ATTEST:-
/- 4
f,
- _
Deborah Pae oval,City Clerk
Resolution No.55-11 Page 1
EXHIBIT A
SCOPE OF SERVICES
Consulting Services Agreement between
Town of Los Altos Hills and Cotton,Shires and Associates, Inc
Exhibit A Page 1 of 1
COTTON, SHIRES AND ASSOCIATES, INC.
CONSULTING ENGINEERS AND GEOLOGISTS
July 22,2011
P5421
TO: Mr.Richard Chiu
Director of Public Works/City Engineer
TOWN OF LOS ALTOS HILLS
26379 Fremont Road
Los Altos Hills,California 94022
SUBJECT: Proposal for Geotechnical Investigation and Preparation of Plans,
Specifications and Estimate
RE: Elena Road Improvements,Los Altos Hills,California
Dear Mr.Chiu:
At your request, we have prepared this proposal for Geotechnical and Civil
services. We understand that the Town would like to address instability noted along a
segment of Elena Road (southeastern portion of hairpin curve located south of
intersection with Foothill Lane). Monitoring of two inclinometers has indicated local
ground movement to depths of 8 to 12 feet.This movement could be associated with fill
materials beneath the outboard edge of the road.Multiple sets of cracks have developed
in the roadway pavement typically above areas of interpreted artificial fill materials.
Several observed pavement cracks have exceeded 1/e inch in width. This significantly
distressed portion of the roadway is approximately 400 to 500 feet in length. We
understand that a new pier-supported retaining wall is being considered by the Town to
provide adequate lateral confinement and stability to the roadway. Appropriate wall
dimensions(lengths and heights)are to be determined during the design process.
We understand that our work is to include topographic survey and preparing a
base map, site geotechnical investigation, design of retaining walls, and preparation of
project plans, specifications, and construction cost estimates. Both woodlagging and
concrete panel lagging walls are to be considered when preparing cost estimates. We
understand that the desired wall type and alignments will be selected prior to
preparation of complete construction plans and specifications. We also understand that
a bound geotechnical investigation(report)it is be prepared as part of our work.
We are proposing the following Scope of Work,Schedule and Fee to perform the
work.
Northern California Office Central California Office Southern California Office
330 Village Lane 6417 Dogtown Road 550 St.Charles Drive,Suite 108
Los Gatos,CA 95030-7218 San Andreas,CA 95249-9640 Thousand Oaks,CA 91360-3995
(908)354-5542•Fax(408)354-1852 (209)7369252•Fax(209)736-1212 (805)497-7999•Fax(805)497-7933
www.cottons hires.com
V
Mr.Richard Chiu July 22,2011
Page 2 P5421
SCOPE OF WORK
Field Investigation
A. Topographic Survey and Field Mapping - We will complete a
topographic survey of the project site and adjoining slope. An
engineering geologic map of the roadway alignment,focusing on
the distribution of existing artificial fill materials and native earth
materials,will be also prepared. This map will be the base for our
design plans.Engineering geologic cross sections will be prepared
to illustrate the subsurface distribution of earth materials and to
display multiple profiles across the existing roadway.
B. Subsurface Investigation - Based on an inspection of site
conditions, we anticipate that a rubber tire drill rig can be utilized
for subsurface exploration. Approximately 4 to 5 exploratory
borings will be advanced and logged(depth range 20 to 30 feet) to
aid in our interpretation of subsurface conditions. Selected
samples will be collected for laboratory testing to determine
geotechnical properties and design criteria parameters.
Subsurface material characterization will directly influence wall
design criteria including pier lengths along wall alignments.
C. Meeting with Town Engineering Staff - We will meet with
appropriate Town Staff to present preliminary findings and to
discuss wall lengths, alignments, types, and height prior to
proceeding with more detailed analysis and design.
II. Geotechnical Analysis
A. Laboratory Testing - Representative samples from the field
exploration program will be tested for shear strength and index
properties to help provide a basis for retaining wall design criteria
parameters.
B. Geotechnical Analysis - Based on the collected field data, and
laboratory test results, recommended retaining wall design
criteria parameters will be formulated.
III, Geotechnical Report
A. Preparation of Report - Results of our Field Investigation and
geotechnical design recommendations will be presented in a letter
report with accompanying maps and cross sections.
Recommended retaining wall design criteria (active and passive
COTTON,SHIRES AND ASSOCIATES, INC.
Mr.Richard Chiu July 22,2011
Page 3 P5421
pressures, minimum pier depths and diameters, etc.) will be
presented.
N. Engineering Design
A. Preparation of Drawings and Technical Specifications - We will
prepare a draft and final set of plans and specifications for the
project. A paper set of draft plans and specifications will be
prepared for Town comments. A final set of plans and associated
autocad source files will be transmitted to the Town.
V. Consultation and Construction Inspection
A. Consultation - We will provide consultation during the bidding
phase and attend pre-bid and pre-construction meetings.
B. Construction Inspection - We will provide wall layouts with
suitable setbacks and observation and testing during construction.
SCHEDULE
We are prepared to begin the surveying and mapping work within two weeks of
receipt of authorization to proceed. We will complete Tasks I through III (outlined
above) in roughly 6 weeks or 4 weeks after completing subsurface investigation. We
anticipate that preparation of draft plans and specifications for Task N-A will require
an additional 4 weeks.
FEE
We propose to bill the Town for our services on a time-and-expenses basis in
accordance with attached Schedule of Charges Limitations and Terms (minus 10%
discount on hourly rates). We estimate the following fees for the Task I through N
described above will not exceed$28,000 (including drilling and laboratory subcontractor
costs). We will invoice the Town on a monthly basis for a total not-to-exceed $28,000 for
Tasks I through N without prior written approval. The following is a breakdown of our
estimated fees for tasks described above:
Task Fee
I. Field Investigation $7,500 to$8,500
IL Geotechnical Analysis Services $2,500 to$3,500
COTTON,SHIRES AND ASSOCIATES, INC.
6110 11NO
Mr.Richard Chiu July 22,2011
Page 4 P5421
III. Geotechnical Report $2,500 to$3,500
IV. Engineering Design $11,500 to$12,500
V. Consultation&Construction Inspections **
**We have not provided you with a projected fee for Task V, Consultation and
Construction Inspection. Due to the variability of design and contractors' schedules,it is
difficult to project an accurate cost estimate for this task. Consequently we propose to
invoice you on a time-and-expense basis in accordance with the attached Schedule of
Charges for this task. Alternatively, we can prepare a cost estimate for these services
after wall construction details have been determined and the selected contractor has
provided a construction schedule.
ASSUMPTIONS
The proposed scope of work is based on the following assumptions: 1) we are
provided with all available information regarding buried utilities or improvements
prior to the drilling, and we will take every precaution, but COTTON, SHIRES AND
ASSOCIATES, INC. assumes no responsibility for damage to unmarked utilities; 2)
project services do not include an evaluation of the site for determining the presence or
absence of wetlands or hazardous or toxic materials in the soil,bedrock, surface water,
groundwater, or air, on, or below or around this site; 3)any delays/standby time due to
conditions beyond our control such as security checks, site restrictions, obstructions at
boring locations, etc. will be invoiced additionally on a time-and-expenses basis;4) this
investigation does not include a determination of sulfates or the corrosive nature of the
soil, if such a determination is required we can provide one for an additional fee; 5) the
Town shall coordinate and provide traffic control on the day we perform subsurface
exploration; and 6) we understand that obtaining a permit from the Town or other
permitting agency is not required for our work, if a permit(s) is required we can
prepare the necessary forms however,this could delay the project and increase our fees.
AGREEMENT
If you agree with the Scope of Work,Schedule, and Fee outlined above, as well
as the Schedule of Charges, Limitation and Terms on file with the Town as part of our
existing contract, please sign one copy of this proposal and return it to our office.
Receipt of the signed proposal will constitute authorization for us to proceed.
COTTON,SHIRES AND ASSOCIATES, INC.
V
Mr.Richard Chiu July 22,2011
Page 5 P5421
We look forward to providing you with the professional services discussed
above.If you have any questions,or need additional information,please contact us.
Respectfully submitted,
COTTON,SHIRES AND ASSOCIATES, INC.
TOWN GEOTECHNICAL CONSULTANT
Ted Sayre
Principal Engineering Geologist
CEG 1795
Reviewed By: A 4'� '. i L , it 1 '
David T.Schrier
Principal Geotechnical Engineer
GE 2334
Approved and Authorized By Date
TS:DTS:kd
Attachments: Schedule of Charges
COTTON,SHIRES AND ASSOCIATES, INC.
id
EXHIBIT B
COMPENSATION SCHEDULE
Consulting Services Agreement between [EFFECTIVE DATE)
Town of Los Altos Hills and Cotton, Shires and Associates, Inc
Exhibit B Page 1 of 1
V
COTTON,SHIRES AND ASSOCIATES,INC.
SCHEDULE OF CHARGES LIMITATIONS AND TERMS FOR PROFESSIONAL SERVICES Pare 1 of 2
January 2011-Los Gatos Office
Personnel Charges Expert Witness Consultation Charges
Senior Principal Geologist/Engineer $250/hr
Principal Geologist/Engineer $210/hr Expert witness testimony for court appearances and binding arbitrations
shall be charged on a daily basis(minimum one day increments)at a
Supervising Geologist/Engineer $175/lu rate of$3,800 per day. Deposition testimony shall be charged at a rate of
Senior Geologist/Engineer $145/hr $475 per hour (minimum one hour charge). Preparation lime for
Senior Staff Geologist/Engineer $135/hr depositions or court appearances shall be charged on a time-and-
expense basis in accordance with the Personnel, Equipment, and
Staff Geologist/Engineer $120/hr Expense charges listed herein.
Field/Laboratory Technician $100/hr
Technical illustrating $85/lis Laboratory Testing and Geophysical Service Charges
Clerical/Accounting $70/hr Laboratory testing and geophysical services shall be charged on a time-
and-materials basis in accordance with the Personnel,Equipment, and
Equipment and Supply Charges Expense charges listed herein.
Inclinometer System $150/day
Laboratory samples shall be stored for 60 days after the date of final
Piezometer Data Acquisition System $75/day report submittal unless special anangements are made for longer
Total Station Surveying Equipment $200/day storage.
GPS/Reflectorless Surveying Equipment $300/day
Nuclear Moisture/Unit Weight Gauge $100/day
Expense Charges(Receipted Costs Plus 15%01
Rope Climbing Safety Equipment $200/day Travel expenses including air fare, lodging, vehicle rental, etc.
Multi-Channel Seismograph or ReMi System $250/day (either actual receipted costs plus 15% for meals or a flat
Push Camera System $300/day subsistence charge of $55 per diem for overnight stay shall be
$.50 vu charged in addition to the lodging cost)
Vehicle Mileage* / i Excavation subcontractors and expendable field supplies
`mileage will be adjusted per IRS rate Reproduction of drawings
Aircraft Mileage $1.29/n mi Film,film development,and photograph printing
mcp (B&W-Color) $ 15 4Il Special fees,permits,insurance,etc
Photocopying /copy Conference call telephone costs
Engineering(Large Format)Copier $ .40/ft2 Special mail service(air,electronic,courier,etc.)
Computer Assisted Color Plotting $10/sq.ft. Special equipment rental
Special consultant fees
Subcontractor fees
Limitations and Terms for Professional Services
AGREEMENT-This Schedule of Charges,Limitations and Terms for Professional Services as an attachment to a.signed Proposal ur Client Contract
constitutes an"Agreement" between COTTON,SHIRES AND ASSOCIATES,INC.(CSA)and the Client Client has authorized commencement of
the work under this Agreement by signing the"Approved by"section of the Proposal or Contract The Agreement is hereby incorporated and made
part of the Contract between the parties. In consideration of the mutual Agreement set forth herein and intending to be legally bound,the parties
hereto agree as to the following:
Invoicing and Payment-Client shall pay CSA compensation as outlined in the Proposal or at the rates determined in the above Schedule
of Charges and according to the payment terms below. Invoices may be prepared and submitted by CSA on a monthly basis or when the work is
completed,at CSA's option. Payment is due upon receipt and is past due thirty(30)days from date of invoice. A service charge of 1.5%per month,
or the maximum amount allowed by law,will be charged on past due accounts. Payments by Client will thereafter be applied first to accrued
interest and then to the principal unpaid balance. Any attorney fees,court costs,or other costs incurred in collection of delinquent accounts shall be
paid by the Client If payment of invoices is not current,CSA may suspend performing further work at no liability to CSA.
Relationship between CSA and Client-CSA is retained by the Client to investigate and to consult with the Client regarding the Project,as
defined in the Proposal. Client shall provide(SA in writing with all information relevant to the Project and shall advise CSA of any condition
known-to Client that may affect GSA's performance under this Agreement CSA's services are for the benefit of the Client,but Client recognises that
the extent of those services is limited by the time-frame chosen and the funds expended by the Client for the investigation. CSA has no
responsibility for the work product of any independent consultants required for the Client's Project,nor for completeness,adequacy,or quality of
said independent consultants'work,or specialty work.
Information Provided by Client-CSA and the Client shall discuss and agree upon the information needed for rendering of services
hereunder. The Client agrees to provide to CSA all such information as agreed to be necessary. With respect to such information, the Client
understands and agrees that CSA will rely solely upon the Client to ensure the accuracy and completeness thereof,as the Client recognizes that it is
impossible for CSA to assure the accuracy,completeness and sufficiency of such information.
Ownership of Documents and Proprietary Information - This proposal and all documents, including, but not limited to, drawings,
specifications, computer disks, reports, calculations, and estimates, prepared by CSA in connection with this Agreement ("CSA Confidential
Information")are instruments of service and are intended for the sole use of the recipient hereof,and may not,except as otherwise described herein,
be disclosed,distributed,or disseminated in any form without the prior written consent of GSA. The CSA Confidential Information is and shall
remain the sole property of CSA.Client may distribute documents generated by CSA in connection with CSA's services under Nis Agreement to
third parties,provided that said third party agrees in writing to be bound by the confidentiality and ownership of documents provisions of this
Agreement. The terms of this Section shall survive the termination of this Agreement
COTTON,SHIRES AND ASSOCIATES, INC.
4110 1111/0
CSA SCHEDULE OF CHARGES,LIMITATIONS AND TERMS FOR PROFESSIONAL SERVICES(Page 2 of 21
Public Liability — Cu'tON, SHIRFS AND ASSOCIATES, INC. is a California Corporation protected by Workers Compensation
Insurance (and/or Employers Liability Insurance), and by Public Liability Insurance for bodily injury and property damage, and will furnish
certificates thereof upon request. We assume the risk of damage to our own supplies and equipment. If your contract or purchase order places
greater responsibilities upon us or requires further insurance coverage we, if specifically directed by you, will procure additional insurance(if
procurable)to protect us at your expense,but we shall not be responsible for property damage from any cause,including fire and explosion,beyond
the amounts of coverage of our insurance.
Standard of Care and Professional Liability—In performing professional services,CSA shall use that degree of care and skill ordinarily
exercised under similar circumstances by members of our profession at t e time the services are performed. No other representation or warranty,
express or implied,is made or intended in this Agreement,by our proposal fur consulting services,by our furnishing oral opinion or written reports,
or by our inspection or work. However,should we or any of our professional employees be found to have been negligent in the performance of
professional services or to have made and breathed any express or implied warranty,you agree that the maximum aggregate amount of your
recovery against us and/or said professional employees shall be limited to$50,000 or the amount of the fee paid us for professional services as
computed under the SCHEDULE OF CHARGES,whichever amount is greater. Moreover,client agrees to indemnify us against damages in excess of
$50,000 or the amount of our fee,whichever amount is greater,arising from suits brought against us by third parties,in connection with our work
performed on your project
Notices—All notices in writing to be given hereunder by either party to the other party shall be served by letter or sent by facsimile.
Assignment—Neither this agreement nor the benefits or obligations under this Agreement shall be sold,assigned or transferred by either
party to any third parties including subsidiary or affiliated companies without the prior written approval of the other party,with such approval not
to be unreasonably withheld by either. In the event the approval is given by either for assignment or transfer,such an approval shall not relieve
either from any liability and/or responsibility under the Agreement.
Termination/Cancellation—Client and CSA will have the right to terminate this Agreement for their convenience by giving ten(10)days
prior written notice. Atter termination,CSA will be reimbursed for.services rendered and necessary expenses incurred to the termination date upon
submission to Client of detailed supporting invoices. The obligations of paragraphs 3,4,and 6 remain in effect after termination.
Change in Scone of Work—If,during the performance of the work under this Agreement,it is determined that the scope of work has
expanded or changed such that additional expenditures are required,the client shall be notified and approval from the client shall be received prior
to the performance of the additional services.
Dispute Resolution—CSA and Client recognize that disputes arising under this Agreement are best resolved at the working level by the
parties directly involved. Both parties are encouraged to be imaginative in designing mechanism and procedures to resolve disputes at this level.
Such efforts shall include the referral of any remaining issues in dispute to higher authority within each participating party's organization for
resolution. Failing resolution of conflicts at the organizational level,CSA and Client agree that any remaining conflicts arising out of or relating to
this Agreement shall be submitted to non-binding mediation unless CSA and Client mutually agree otherwise. If the dispute is not resolved through
non-binding mediation,then the parties may take other appropriate action subject to the other terns of this Agreement Neither party shall hold the
other responsible for damages or delay in performance caused by acts of God,strikes,lockouts,accidents or other events beyond the reasonable
control of the other party, its employees or agents. Should litigation or arbitration occur between the parties relating to the provisions of this
Agreement, all litigation or arbitration expenses, collection expenses, witness fees, court costs and attorneys' fees reasonably incurred by the
prevailing party shall be paid by the non-prevailing party.
Governing Law—The validity,performance,and construction of this Agreement,and the relationship between Client and CSA shall be
governed and interpreted in accordance with the substantive laws of California,United States of America,without regard to its choice of law rules.
This Agreement shall be construed as to its fair and not strictly for or against either party.
Jobsite Safety-Neither the professional activities of CSA,nor the presence of CSA employees and CSA subconsultants at a construction
site,shall relieve the contractor and any other entity of their obligations, duties and responsibilities including,but not limited to,construction
means, methods, sequence, techniques or procedures necessary far performing, superintending or coordinating all portions of the Work of
construction in accordance with the contract documents and any health of safety precautions required by any regulatory agencies. CSA and its
personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work
or any health or safety precautions. The Client agrees that the general contractor and its various subcontractors are solely responsible for jobsite
safety,and warrants that this intent shall be made evident where appropriate in the Client's agreements with other contractors. If the Client is a
Contractor or Subcontractor on the Project the Client also agrees that the Client,CSA,and GSA's consultants shall be indemnified and shall be made
additional insureds under the client's general liability insurance policy;in other cases,the Client agrees to arrange for this indemnification and
additional insureds under the General Contractors general liability insurance policy.
Field Exploration — Unless otherwise agreed,the client shall furnish right-of-entry an land for planned field operations. The client shall
also provide CSA with locations and depths of buried utilities and structures. GSA shall take responsible precautions to minimize damage to land
from use of equipment,but our fee does not include cost of restoration of damage resulting from our exploration operations. CSA shall nut be liable
for damage or injury arising from damage to subterranean structures(pipes,tanks,-telephone cables,etc.)which are not called to our attention and
correctly shown on plans famished to us.
Miscellaneous-In the event of any litigation or proceeding involving CSA and Client,the prevailing party shall be entitled to recover its
reasonable legal fees,expert fees,and normal employee rates and associated cost from the non-prevailing party. Failure by Client to object to any of
the terms and conditions contained in this Agreement before the commencement of services by CSA will be deemed an acceptance of such terms and
conditions. Notwithstanding anything to the contrary in this Agreement,CSA and Client agree that neither party shall be liable for any special,
indirect,consequential,lost profits,or punitive damages. If any term,condition,or provision of this Agreement is found unenforceable by a court of
law or equity,this Agreement shall be construed as though that term,condition,or provision did not exist,and its unenforceability shall have no
effect whatsoever on the rest of this Agreement
COTTON,SHIRES AND ASSOCIATES, INC.
fr+
EXHIBIT C
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1720 ET SEQ.
HOURS OF WORK:
A. In accordance with California Labor Code Section 1810,8 hours of labor in performance of the
services described in Exhibit A shall constitute a legal day's work under this contract.
B. In accordance with California Labor Code Section 1811,the time of service of any worker
employed in performance of the services described in Exhibit A is limited to eight hours during
any one calendar day, and forty hours during any one calendar week,except in accordance with
California Labor Code Section 1815, which provides that work in excess of eight hours during any
one calendar day and forty hours during any one calendar week is permitted upon compensation
for all hours worked in excess of eight hours during any one calendar day and forty hours during
any one calendar week at not less than one-and-one-half times the basic rate of pay.
C. The Consultant and its subcontractors shall forfeit as a penalty to the Town$25 for each worker
employed in the performance of the services described in Exhibit A for each calendar day during
which the worker is required or permitted to work more than 8 hours in any one calendar day, or
more than 40 hours in any one calendar week, in violation of the provisions of California Labor
Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the Town has determined the general
prevailing wages in the locality in which the services described in Exhibit A are to be performed
for each craft or type of work needed to be as published by the State of California Department of
Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the
Town Public Works Office and shall be made available on request. The Consultant and
subcontractors engaged in the performance of the services described in Exhibit A shall pay no
less than these rates to all persons engaged in performance of the services described in Exhibit
A,
8. In accordance with Labor Code Section 1775,the Consultant and any subcontractors engaged in
performance of the services described in Exhibit A shall comply Labor Code Section 1775,which
establishes a penalty of up to$50 per day for each worker engaged in the performance of the
services described in Exhibit A that the Consultant or any subcontractor pays less than the
specified prevailing wage, The amount of such penalty shall be determined by the Labor
Commissioner and shall be based on consideration of the mistake, inadvertence,or neglect of
the Consultant or subcontractor in failing to pay the correct rate of prevailing wages,or the
previous record of the Consultant or subcontractor in meeting applicable prevailing wage
Consulting Services Agreement between ]EFFECTIVE DATE]
Town of Los Altos Hills and Cotton, Shires and Associates, Inc.
Exhibit[CI Page 1 of 3
obligations,or the willful failure by the Consultant or subcontractor to pay the correct rates of
prevailing wages. A mistake, inadvertence,or neglect in failing to pay the correct rate of
prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their
obligations under the California Labor Code. The Consultant or subcontractor shall pay the
difference between the prevailing wage rates and the amount paid to each worker for each
calendar day or portion thereof for which each worker was paid less than the prevailing wage
rate. If a subcontractor worker engaged in performance of the services described in Exhibit A is
not paid the general prevailing per diem wages by the subcontractor,the Consultant is not liable
for any penalties therefore unless the Consultant had knowledge of that failure or unless the
Consultant fails to comply with all of the following requirements:
1. The contract executed between the Consultant and the subcontractor for the
performance of part of the services described in Exhibit A shall include a copy of the
provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2. The Consultant shall monitor payment of the specified general prevailing rate of per diem
wages by the subcontractor by periodic review of the subcontractor's certified payroll
records.
3. Upon becoming aware of a subcontractor's failure to pay the specified prevailing rate of
wages,the Consultant shall diligently take corrective action to halt or rectify the failure,
including, but not limited to,retaining sufficient funds due the subcontractor for
performance of the services described in Exhibit A.
4. Prior to making final payment to the subcontractor,the Consultant shall obtain an
affidavit signed under penalty of perjury from the subcontractor that the subcontractor
has paid the specified general prevailing rate of per diem wages for employees engaged
in the performance of the services described in Exhibit A and any amounts due pursuant
to California Labor Code Section 1813.
C. In accordance with California Labor Code Section 1776,the Consultant and each subcontractor
engaged in performance of the services described in Exhibit A shall keep accurate payroll
records showing the name, address, social security number, work,straight time and overtime
hours worked each day and week,and the actual per diem wages paid to each journeyman,
apprentice,worker,or other employee employed in performance of the services described in
Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made
under penalty of perjury, stating both of the following:
1. The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of Sections 1771, 1811, and 1815 for
any work performed by the employers employees on the public works project.
Consulting Services Agreement between [EFFECTIVE DATE]
Town of Los Altos Hills and Cotton, Shires and Associates, Inc.
Exhibit 1C] Page 2 of 3
V
The payroll records required pursuant to California Labor Code Section 1776 shall be certified
and shall be available for inspection by the Owner and its authorized representatives,the
Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the
Department of Industrial Relations and shall otherwise be available for inspection in accordance
with California Labor Code Section 1776.
D. In accordance with California Labor Code Section 1777.5, the Consultant,on behalf of the
Consultant and any subcontractors engaged in performance of the services described in Exhibit
A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5
governing employment and payment of apprentices on public works contracts.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance
of the services described in Exhibit A to employ for the services described in Exhibit A any
person in a trade or occupation (except executive,supervisory, administrative, clerical,or other
non manual workers as such)for which no minimum wage rate has been determined by the
Director of the Department of Industrial Relations, the Contractor shall pay the minimum rate of
wages specified therein for the classification which most nearly corresponds to services
described in Exhibit A to be performed by that person.The minimum rate thus furnished shall be
applicable as a minimum for such trade or occupation from the time of the initial employment of
the person affected and during the continuance of such employment.
•
Consulting Services Agreement between [EFFECTIVE DATE]
Town of Los Altos Hills and Cotton, Shires and Associates, Inc.
Exhibit[C] Page 3 of 3
111)
Richard Chiu
From: Mattas, Steven <smattas@meyersnave.com>
Sent Friday,October 07,2011 3:59 PM
To: Richard Chiu
Subject: RE:Agreement for Elena Road slide project
Richard,
This change is fine.
Steve
From: Richard Chiu [maitto:rchiu@losaltoshills.ca.gov]
Sent: Friday, October 07, 2011 9:37 AM
To: Mattas, Steven
Subject: FW: Agreement for Elena Road slide project
Steve,
Please confirm that this is acceptable.
Thanks
Richard
From:Ted Sayre [mailto:tsayre@cottonshires.com]
Sent: Tuesday, October 04, 2011 12:05 PM
To: Richard Chiu
Subject FW: Agreement for Elena Road slide project
Hi Richard-
I need to propose a change to page 7 of the agreement for the Elena Road Project.The change is on the first
page of the attachment. If the word "negligent" can be inserted as indicated (or an alternative change with
similar meaning)then CSA can look past the other concerns with the agreement and sign.
If this change can not be made then we will have a significant problem engaging in an agreement with the
Town for this work. This situation is unfortunate as have completed many similar roadway repair design
projects in the past for the Town without problems. We have entered into agreements with 12 other Cities
and Towns in the Bay area for geotechnical services and we have not run into wording that is this adverse to
us, as the Project Geotechnical Consultant.
I have attempted to minimize discussions and time spent over this agreement by only focusing on a single
important change. As you can see from the last marked-up page of the attachment from our insurance carrier,
they recommend tossing out entire sections of the agreement. I have worked with Steven Mattas in the past
and would be happy to speak with him about this agreement if necessary.
Thanks for any assistance you can provide in this matter,
1
it V
Ted Sayre
Principal Engineering Geologist
Cotton, Shires and Associates, Inc.
330 Village Lane
Los Gatos, CA 95030
408-354-5542 ph
408-354-1852 fax
tsayre@cottonshires.com
From: Richard Chiu [mailto:rchiu@losaltoshills.ca.gov]
Sent: Monday, October 03, 2011 10:20 AM
To: Ted Sayre
Subject: RE: Agreement for Elena Road slide project
Ted,
If you want a wet signed original, please send us 2 original signed copies.
Thanks
Richard
From: Ted Sayre[mailto:tsavre@cottonshires.com]
Sent: Monday, October 03, 2011 10:15 AM
To: Richard Chiu
Subject: RE: Agreement for Elena Road slide project
Hi Richard-
Would the Town like to get back 3 signed copies of the agreement?
I am checking with our insurance carrier regarding Section 5, page 7 indicating:
"Consultant shall indemnify...for loss, damage, claims....of every nature arising out of or in connection with
Consultant's performance...."
Typically, CSA is charged with indemnification responsibilities for acts that result from our negligence
however the above wording has no qualifications on indemnification responsibilities, except for Liability
caused by sole negligence of the Town. I suspect that our insurance carrier will indicate that the provided
wording obligates CSA beyond what is covered by our insurance. I will be back in touch about this issue, but I
suspect that we will need to propose a change to this section of the agreement.
Thanks, Ted Sayre
From: Richard Chiu [mailto:rchiuralosaltoshills.ca.gov]
Sent: Friday, September 30, 2011 6:11 PM
z
400
To: tsavrec cottonshires.com
Subject:Agreement for Elena Road slide project
Ted,
Here is the agreement for signature. Please send the original(s)back to us for execution.
Thanks
Richard
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3
4110 1111.
4.5 Remedies. In addition to any other remedies Town may have if Consultant fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time
herein required,Town may,at its sole option exercise any of the following remedies,which
are alternatives to other remedies Town may have and are not the exclusive remedy for
Consultant's breach:
• Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
• Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder,or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof;and/or f
• Terminate this Agreement. '^o�'/cr0+"'/
Section 5. INDEMNIFICATION AND CONSULTANTS RESPONSIBILITIES. „0 G
Consultant shall indemnify,defend with counsel acceptable to Town, and hold harmless T and its
officers,officials, employees,agents and volunteers from and against any and all liability, oss,damage,
claims,expenses, and costs(including without limitation,attorneys fees and costs and s of litigation)
(collectively,"Liability")of every nature arising out of or in connection with Consultant' erformance of the
Services or its failure to comply with any of its obligations contained in this Agreement,except such Liability
caused by the sole negligence or willful misconduct of Town.
The Consultant's obligation to defend and indemnify shall not be excused because of the Consultant's
inability to evaluate Liability or because the Consultant evaluates Liability and determines that the
Consultant is not liable to the claimant. The Consultant must respond within 30 days,to the tender of any
claim for defense and indemnity by the Town,unless this time has been extended by the Town. If the
Consultant fails to accept or reject a tender of defense and indemnity within 30 days,in addition to any
other remedy authorized by law,so much of the money due the Consultant under and by virtue of this
Agreement as shall reasonably be considered necessary by the Town,may be retained by the Town until
disposition has been made of the claim or suit for damages,or until the Consultant accepts or rejects the
tender of defense,whichever occurs first.
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any
type to express or implied indemnity against the Indemnitees.
Notwithstanding the forgoing, to the extent this Agreement is a"construction contract"as defined by
California Civil Code Section 2782,as may be amended from time to time,such duties of consultant to
indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
In the event that Consultant or any employee,agent,or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System(PERS)to be eligible for enrollment in PERS as an employee of Town,Consultant shall
Indemnify,defend,and hold harmless Town for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Consultant or its employees,agents,or subcontractors,as well
Consulting Services Agreement between
Town of Los Altos Hills and Cotton, Shires and Associates, Inc. Page 7 of 14
•
, i 4. "...any and all claims,demands.odious,sults.."
Attorneys are overly fond of absolutes. Otherwise,they would snip using"of every kind,nature,and description"as if it were
punctuation. Absolutes leave room for nrgument where clarity is the only appropriate goal. You know by now that where you have to
be when your negotiations arc over does not include'any and ail"losses,nor does it include"cluinn,demands,action,or suite" It
includes only those damages for which you arc legally liable.
Losses.liabilities.expenses,and costs are damages for which you could be legally liable if they ore caused by your negligence. Even
attorneys'fees may be construed to be damages in some sinus,and,where not,your limited contractual liability envenlge may well
respond. But claims,demands,actions,and snits,in and of themselves,ere not damages,and the mere fact that they occur may or may
not have anything to do with your negligence.
1 his is not a make or break proposition,either,hut clarity of intent finds offense in these words and the absolutes which precede them.
Rest they be deleted.
5. "._directly or Indirectly...
This phrase is clearly al odds with one of the four characteristics of indemnity which counts no coup. Your responsibility under the
common law cods will.proximate cause(a direct consequence of your negligence),and your indemnification should end there too. 11th
is chaff. It should not pass through your principled harsher.
6. "._connected with,attributable to,or alleged to be caused by,connected will,or attributable to..."
Hold it! You arc not in a position to assume responsibility for I00a/of any loss to which you may have contributed in some way. Nor,
absent negligence,are you willing to spring forward and start throwing money around in response to each and every allegation of
wrongdoing that may conic along.
You are not negligent until you are found by a court or forum of competent jurisdiction to have been negligent. It follows that you
cannot insure against costs incurred by someone else us n result of mere allegations of negligence on your purr. Uvea if you are found to
have contributed to a loss Through your negligence,your insurance will respond only to the extent of that contribution. The conhib lion
of others is their problem,and the language of your agreement to indemnify should be us clear on this point as you are. Delete these
words.
7. "...The performance of services._"
-) 'there is a serious omission hero,and by now you know what it ls. The word"negligeor,is missing. Without it you will find yourself
j responsible,not just for losses for which you are legally liable,but for losses arising out of anything that might he related to the services
you perfom.
You can safely agree to accept responsibility for the consequences of your negligent performance,but only at great peril can you agree to
accept responsibility for losses of any kind which may somehow be associated with your existence on earth. The distinction: Liability
for losses which would not otherwise be yours. 11 is here that you will want to limit the scope of your indemnification ogreemem to the
consequences of your negligence,and you can easily do so by ipso ing"negligent"in front of the word,"perfon once."
What about your agents and consultants? Ry virtue of your position in the line of fire,you may well be legally liable for their negligent
acts,errors.and omissions under n theory of vicarious liability—just as the owner may be liable for yours by virtue of having contracted
with you in the fust place, This explains the owner's interal in your indemnity agreement. It also explains your insurer's interest in the
Ccnificmes of Insurance you obtain from your consultants,and it argues for passing the obligations you assume under your contract
through to them. If you keep those obligations within the maximum limits of fainicss,there should be no problain with this.
S. "...willful misconduct by any of t hem..."
If you arc willing to extend indemnification for your negligence(harm inadvertently caused),why is it unfair to extend indemnification
for harm intentionally done? This is presumably something you can control,and the case from your client's point of view would seem
mole compelling for intentional harm than for negligence.
Your reluctance is due to the absence of insurance for either damages or defense costs arising out of harm intentionally caused,but that
will not be persuasive to your client, Any argument you night have ngninsl indemnification E r wilifnl misconduct probably must rya ing
from the general unfairness of wild western courtrooms,where anyone can sue for anything and say the most outrageous things in the
process of doing so. You might frame your argument like this:
"I cannot pay all the bills to support the vagaries of the legal system we have in place. I buy insurance for the bulk of my risk,but if
some cockeyed plaintiff alleges that I practice my sacred trust in a way to intentionally Inn another as n tactic to embanass Inc or
pressure me into an unjustified settlement,I decline to compound my problem by taking on the cost of defense of clients,their officers,
directors,employees,mmgeit s,desigmices,friends,acquniniances,and p1 ayl notes of(heir children. 'Thal plays into the hands of the
unscrupulous who would claim intentional harm to gain a choke hold on me. If you think 1 would intentionally harm another soul,then
we have u groat deal more talking to do. Sony,but there are limits. This is one of Them"
Y. '' infringement oh'any copyright,trade secret,or patent,.."
Copyright infringement is one of those wrongs needing no proof of intent,negligence,or any evil behavior save Ibe infringement itself.
So ere trade secrets and patents This is truly n problem. There is no Place where the borders of anyone's copyright or track secrets mire
recorded. One emu register a copyright,but it is nom necessary to do so in order to claim one. patents arc registered.but you arc neither
•
4
Karen Frey
From: Gigi Yuen (SFC)
Sent: Tuesday,October 04, 2011 8:54 AM
To: 'Karen Frey'
Subject: RE: ins. indemn wording
Attachments: 4601_001.pdf
Hi Karen,
Please see Mac marked up comments and attachments ate that professional Ila N y policy-pramces'coverage for
claims to the extent that they were caused by your negligent acts, errors, or omissions. This indemnification is not limited
to your negligence. Without"negligent,"you're going to find yourself responsible, not just for losses for whLgh you aNJ
legally liable, buut fof losses arising out of anything that might be related to your professional services. Unfortunately,
onerous contract language usually produces nothing but an illusory sense of protection to the client. FYI, allowing the
language to stay as it is does not void or reduce your coverage but could expose your firm to claims not covered by your
professional liability policy. Below is an example of insurable indemnity language:
To the fullest extent permitted by law the Consultant will indemnify and hold Town and its officers, directors, employees
harmless from any and all claims, costs, Issses or damages, including reasonable attorney fees, to the extent caused by
the negligent acts, errors or omissions of the Consultant or the negligent acts, errors or omissions of the Consultant's
officers, directors, and employees or any other entity or person for whom they would be legal liable for, in the performance
of professional services under this Agreement, except such liability caused the negligence or willful misconduct of Town.
Let me know if you should have any questions. Thank you.
Note: Comments are from an Insurance perspective only. This Is not an exhaustive review of each and every provision. As
always,we recommend that you obtain the advice of counsel on all contractual matters.
Glgl Yuen,Account Executive
IOA INSURANCE SERVICES
3875 Hopyard Rd.,Suite 240
Pleasanton.CA 94588
Tel: (925) 416-7862 Extension 50008
Direct:(925)660-3514
Fax: (925) 416-7869
IOA Insurance Services: www.l000ro.com
Insurance Office of America: www.loausa.com
a/e ProNel: www.aepronelorg
From: Karen Frey[mailto:kfrey@cottonshires.com]
Sent: Monday, October 03, 2011 10:07 AM
To: Gigi Yuen (SFC)
Cc: Leslie Pancoast(SFC)
Subject: ins. indemn wording
Good morning,
Another interesting wording in the indemnification portion of a contract from the Town of Los Altos Hills...
Thank you,
Karen Frey
kfrey@cottonsh ires.co m
err 4
one; kE` \ryvS. ,vv W I5 b
kfri
4.5 Remedies. In addition to any other remedies Town may have if Consultant fails to provide
��
or maintain any Insurance policies or policy endorsements to the extent and within the time C^6" 5
cl
herein required,Town may,at Its sole option exercise any of the following remedies,which .)f 441
are alternatives to other remedies Town may have and are not the exclusive remedy for
Consultant's breach:
• Obtain such Insurance and deduct and retain the amount of the premiums for such �-]'�
insurance from any sums due under the Agreement; Xx.
4175'- t
• Order Consultant to stop work under this Agreement or withhold any payment that W� wo-v'� Y,
becomes due to Consultant hereunder,or both stop work and withhold any payment, 414;5 LA0y U •
until Consultant demonstrates compliance with the requirements hereof;and/or
• Terminate this Agreement. /tt?r L�rVilr✓t
Section 5. DEMNIFICATION AND CONSULTANT'S RESPOtN61'BILITIES./ �y
Consultant shall inn mIyei ,:. Ncewselacceptabledo Towg�ff and hold harmless Town and its �.
115
officers,officials,emp ye- .,: Is and volunteers from and agalr�st any and all liability,loss,damage,
—dein),expenses,and s 'including.w thautlimitaton,attorney' es and casts and fees of litigation
(collectively,"Llabilltytfavory"1lalumfar s n onsullant' performance of the _,.,
Services or Its failure to comply with any of as oblgaUons contained in this Agreement,except such Liability
caused by thea negligence or wllllulm�rtaurtUtTavu�,, _rlie .�N, _ �F-`1r E, Ire �,y�..I
rr `` ed { �' ____
YN�CConsultant's obligation to defend and indemnify shall not be excused because of the ottani �
legally-to-evaluate Liability or because the Consultant evaluates I,labl1fy and determines that the ."' "I ` '�, .144
Consultant is not liable to the claimant. The Consultant mugl.respond within 30 days,to the tender of any
claim for defense and indemnify bylhe Town,unless)his lime has been extended by the Town. If the 2
Co onsultant fails to accept or reject a lender of defense and indemnity within 30 days,in addition to any = al
v s a
other remedy authorized by law,so muclToflhe money due the Consultant under and by undue of this =. .7" gma a
Agreement as shall reasonably be considered necessary by the Town,may be retained by the Town until a 3 2
disposition has been made o�f)he clalm or suit for damages,or until the Consultant acceptsor rejepls the
tender of defense,whicheydr occurs first.
With respect to third party.claimsagainst the Consultant,the-Consultant waives-any and all rights of any
type to express or implied Indemnity against the Indemniteos. q
o 4 c
Notwithstanding the forgoing,to the extent this Agreement is a"constmetion contract"as defined by • A a
California Civil Code Section 2782,as maybe amended from time to time,such duties of consultant to
Indemnify shall not apply when to do so would he prohibited by California Civil Code Section 2782. ^ c -s
In the event that Consultant or any employee,agent,or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees =
Retirement System(PERS)to he eligible for enrollment in PERS as an employee of Town,Consultant shall = -
indemnify,defend,and hold harmless Town for the payment of any employee andlor employer - a 3
contributions for PERS benefits on behalf of Consultant or its employees,agents,or subcontractors,as well — lt
^ mq th
ETVJ
Consulting Services Agreement between
Town of Los Altos Hills and Colton,Shims and Associates.Inc. Page 7 of 14 E
575 Market Street,Suite 266. Steven T.Mattas
San Francisco,California 94105 Attorney at Low
tel 415.421.3711 smattas@meyersnave.com
fax 415.421.3767
www.meyersnave.com
meyers nave
WED
WED
OCI 27 2011
October 25, 2011
TOWN OF 10S ALTOS HILLS
Deborah Padovan
City Clerk
Los Altos Hills
26379 Fremont Road
Los Altos Hills, CA 94022
Re: Cotton Shires Agreement
Dear Deborah:
Please find attached the signed copy of Ordinance No. 532. In addition, please find attached
the two signed signature pages for the agreement with Cotton Shires. Please note that it
appears that Cotton Shires amended the agreement to insert the word "negligent" in Section
5 of the agreement. The decision whether or not to accept this insertion is a business
decision for the Town to make. I generally recommend against allowing this change as it
may be interpreted to require the 'fown to establish Cotton Shires negligence prior to their
having the duty to indemnify and defend the Town for claims arising from their work
product. If this proposed change is not acceptable to the Town, Cotton Shires should be
advised that the Town will transmit to them a fully executed contract without the change. If,
however, the Town decides to accept the change, then Carl should initial where the change
has been made.
Please call me if you have any questions.
Very truly yours,
Steven T. Mattas l Y'ft
City Attorney
STM:pp
Enclosures
1734497.1 (588.002.08001)
A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA FRESNO
LOSALTOS HILLS
100.4,
CALIFORNIA
October 24, 2011
Steve Mattas
Meyers,Nave, et al.
575 Market Street, Suite 2600
San Francisco, CA 94105
RE: Consulting Services Agreement Between the Town and Cotton, Shires
and Associates, Inc.
Dear Steve:
Please find enclosed the Agreement with Cotton Shires for the Elena Road Improvements
and two signature pages. Please sign both pages and return only the signature pages in
the envelope provided. In addition, enclosed is Ordinance 532 for your signature. When
you signed the ordinance on Thursday, October 20th, your signature was in the spaced
provided for the City Clerk. Please re-sign and send back in the enclosed self-addressed
stamped envelope.
Thank you.
Sincerely,
2164,14--
Deborah Padovan
City Clerk
Enclosures
26379 Fremont Road
Los Altos Hills
California 94022
650 / 941 -7222
Fax 650/941-3160