14-185 Intelligent Lighting Controls, Factory Start Up & ProgrammingJanuary 22, 2015
OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014-3255
TELEPHONE: (408) 777-3223 • FAX: (408) 777-3366
WEBSITE: www.cupertino.org
Intelligent Lighting Controls, Inc.
5229 Edina Industrial Blvd.
Minneapolis, MN 55439-2910
RE: Agreement
Enclosed for your records is a fully executed original copy of your agreement with the
City of Cupertino. If you have any questions, please contact the Public Works Department
at (408) 777-3354.
Sincerely,
Dorothy Steenfott
Senior Office Assistant
cc: Public Works
Enclosure
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND INTELLIGENT
LIGHTING CONTROLS, INC.
THIS AGREEMENT, for reference dated December 16, 2014, is by and between
CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as
"City"), and Intelligent Lighting Controls, Inc. a Minneapolis corporation, whose
address is 5229 Edina Industrial Blvd, Minneapolis, MN. (hereinafter referred to as
"Contractor"), and is made with reference to the following:
RECITALS:
A. City is a municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its business
as it is now being conducted under the Constitution and the statutes of the State
of California and the Cupertino Municipal Code.
B. Contractor is specially trained, experienced and competent to
perform the special services which will be required by this Agreement; and
C. Contractor possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement
on the terms and conditions described herein.
D. City and Contractor desire to enter into an agreement for
upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:
1. TERM:
The term of this Agreement shall commence on the date this agreement is
executed and shall terminate on Febuary 30, 2015, unless terminated earlier as set
forth herein.
2. SERVICES TO BE PERFORMED.
Contractor shall perform each and every service set forth in Exhibit "A"
titled "Quote No. 22036" which is attached hereto and incorporated herein by
this reference.
3. SCHEDULE OF PERFORMANCE:
The Services of Contractor are to be completed according to the schedule
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Design Professional Agreement
set out in Exhibit A, which is attached hereto and incorporated herein by this
reference.
4. COMPENSATION TO CONTRACTOR:
The maximum compensation to be paid to Contractor under this
agreement shall not exceed Three Thousand Dollars ($3,000.00). The rate of
payment is set out in the Fee schedule, which is attached hereto and incorporated
herein.
Contractor shall furnish to City a detailed statement of the work performed for
compensation during the term of this Agreement. Contractor may submit
monthly invoices for interim progress payments during the course of each phase,
clearly stating as a minimum the total Contract amount, amount paid to date,
percent complete and amount due.
5. TIME IS OF THE ESSENCE:
Contractor and City agree that time is of the essence regarding the
performance of this Agreement.
6. STANDARD OF CARE:
Contractor agrees to perform all services hereunder in a manner
commensurate with the prevailing standards of like professionals in the San
Francisco Bay Area and agrees that all services shall be performed by qualified
and experienced personnel who are not employed by the City nor have any
contractual relationship with City.
7. INDEPENDENT PARTIES:
City and Contractor intend that the relationship between them created by
this Agreement is that of employer -independent contractor. The manner and
means of conducting the work are under the control of Contractor, except to the
extent they are limited by statute, rule or regulation and the express terms of this
Agreement. No civil service status or other right of employment will be acquired
by virtue of Contractor's services. None of the benefits provided by City to its
employees, including but not limited to, unemployment insurance, workers'
compensation plans, vacation and sick leave are available from City to
Contractor, its employees or agents. Deductions shall not be made for any state
or federal taxes, FICA payments, PERS payments, or other purposes normally
associated with an employer-employee relationship from any fees due
Contractor. Payments of the above items, if required, are the responsibility of
Contractor.
8. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
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Design Professional Agreement
Contractor assumes any and all responsibility for verifying the identity
and employment authorization of all of his/her employees performing work
hereunder, pursuant to all applicable IRCA or other federal, or state rules and
regulations. Contractor shall indemnify and hold City harmless from and
against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Contractor.
9. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are
unacceptable employer/employee conduct, Contractor agrees that harassment or
discrimination directed toward a job applicant, a City employee, or a citizen by
Contractor or Contractor's employee or subcontractor on the basis of race,
religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated.
Contractor agrees that any and all violations of this provision shall constitute a
material breach of this Agreement.
10. PROJECT COORDINATION
CITY: Director of Public Works shall be representative of . City for all
purposes under this Agreement. Chris Orr, Facilities Supervisor, is hereby
designated as the Director of Public Works' designee and Project Manager, and
shall supervise the progress and execution of this Agreement.
CONTRACTOR: Contactor shall assign a single Contract Project Manager
to have overall responsibility for the progress and execution of this Agreement
for Contractor. Should circumstances or conditions subsequent to the execution
of the Agreement require a substitute Contractor Project Manager for any reason,
the Contractor Project Manager designee shall be subject to the prior written
acceptance and approval of the City Project Manager.
11. HOLD HARMLESS:
Indemnification:
A. Claims for Professional Liability. Where the law establishes a standard
of care for Contractor's professional services, and to the extent the
Contractor breaches or fails to meet such established standard of care, or
is alleged to have breached or failed to meet such standard of care,
Contractor shall, to the fullest extent allowed by law, with respect to all
services performed in connection with the Agreement, indemnify, defend,
and hold harmless the City and its officers, officials, agents, employees
and volunteers from and against any and all liability, claims, actions,
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Design Professional Agreement
causes of action or demands whatsoever against any of them, including
any injury to or death of any person or damage to property or other
liability of any nature, that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of Contractor or
Contractor's employees, officers, officials, agents or independent
contractors. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation. Contractor shall not be obligated under this Agreement to
indemnify City to the extent that the damage is caused by the sole or
active negligence or willful misconduct of City, its agents or employees.
B. Claims for Other Liability. Contractor shall, to the fullest extent
allowed by law, with respect to all services performed in connection with
the Agreement, indemnify, defend, and hold harmless the City and its
officers, officials, agents, employees and volunteers against any and all
liability, claims, actions, causes of action or demands whatsoever from
and against any of them, including any injury to or death of any person or
damage to property or other liability of any nature, that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct
of Contractor or Contractor's employees, officers, officials, agents or
independent contractors. Such costs and expenses shall include reasonable
attorneys' fees of counsel of City's choice, expert fees and all other costs
and fees of litigation. Contractor shall not be obligated under this
Agreement to indemnify City to the extent that the damage is caused by
the sole or active negligence or willful misconduct of City, its agents or
employees.
C. Claims involving intellectual property. In addition to the
obligations set forth in (A) and (B) above, Contractor shall indemnify,
defend, and hold the City, its elected and appointed officers, employees,
and volunteers, harmless from and against any Claim in which a violation
of intellectual property rights, including but not limited to copyright or
patent rights, is alleged that arises out of, pertains to, or relates to
Contractor's negligence, recklessness or willful misconduct under this
Agreement. Such costs and expenses shall include reasonable attorneys'
fees of counsel of City's choice, expert fees and all other costs and fees of
litigation.
12. INSURANCE:
On or before the commencement of the term of this Agreement,
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Design Professional Agreement
Contractor shall furnish City with certificates showing the type, amount, class of
operations covered, effective dates and dates of expiration of insurance coverage
in compliance with paragraphs 12A, B, C, D and E. Such certificates, which do
not limit Contractor's indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this
certificate be canceled or coverage reduced before the expiration date thereof, the
insurer affording coverage shall provide thirty (30) days' advance written notice
to the City of Cupertino by certified mail, Attention: City Manager." It is agreed
that Contractor shall maintain in force at all times during the performance of this
Agreement all appropriate coverage of insurance required by this Agreement
with an insurance company that is acceptable to City and licensed to do
insurance business in the State of California. Endorsements naming the City as
additional insured shall be submitted with the insurance certificates.
A. COVERAGE:
Contractor shall maintain the following insurance coverage:
(1)
(2)
(3)
(4)
Workers' Compensation:
Statutory coverage as required by the State of California.
Liabili . :
Commercial general liability coverage in the following
minimum limits:
Bodily Injury: $500,000
each occurrence
$1,000,000
aggregate - all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate
limits in the amounts of $1,000,000 will be considered
equivalent to the required minimum limits shown above.
Automotive:
Comprehensive automotive liability coverage in the
following minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
Professional Liability:
Professional liability insurance which includes coverage for
the professional acts, errors and omissions of Contractor in
the amount of at least $1,000,000.
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Design Professional Agreement
B. SUBROGATION WAIVER:
Contractor agrees that in the event of loss due to any of the perils for
which he/she has agreed to provide comprehensive general and automotive
liability insurance, Contractor shall look solely to his/her insurance for recovery.
Contractor hereby grants to City, on behalf of any insurer providing
comprehensive general and automotive liability insurance to either Contractor or
City with respect to the services of Contractor herein, a waiver of any right to
subrogation which any such insurer of said Contractor may acquire against City
by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Contractor at any time during the term hereof should fail to secure or
maintain the foregoing insurance, City shall be permitted to obtain such
insurance in the Contractor's name or as an agent of the Contractor and shall be
compensated by the Contractor for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is
received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards and commissions, officers, employees and
volunteers shall be named as an additional insured under all insurance
coverages, except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to
which such additional insured would be entitled under this policy if not named
as such additional insured. An additional insured named herein shall not be
held liable for any premium, deductible portion of any loss, or expense of any
nature on this policy or any extension thereof. Any other insurance held by an
additional insured shall not be required to contribute anything toward any loss
or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being
sufficient to protect Contractor. Contractor is advised to confer with Contractor's
insurance broker to determine adequate coverage for Contractor.
13. CONFLICT OF INTEREST:
Contractor warrants that it is not a conflict of interest for Contractor to
perform the services required by this Agreement. Contractor may be required to
fill out a conflict of interest form if the services provided under this Agreement
require Contractor to make certain governmental decisions or serve in a staff
capacity as defined in Title 2, Division 6, Section 18700 of the California Code of
Regulations.
14. PROHIBITION AGAINST TRANSFERS:
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Design Professional Agreement
Contractor shall not assign, sublease, hypothecate, or transfer this
Agreement, or any interest therein, directly or indirectly, by operation of law or
otherwise, without prior written consent of City. Any attempt to do so without
said consent shall be null and void, and any assignee, sublessee, hypothecate or
transferee shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer. However, claims for money by
Contractor from City under this Agreement may be assigned to a bank, trust
company or other financial institution without prior written consent. Written
notice of such assignment shall be promptly furnished to City by Contractor.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Contractor, or of the interest of any general partner
or joint venturer or syndicate member or cotenant, if Contractor is a partnership
or joint venture or syndicate or cotenancy, which shall result in changing the
control of Contractor, shall be construed as . n assignment of this Agreement.
Control means fifty percent (50%) or more of the voting power of the
corporation.
15. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and
subcontractors whose names are included in this Agreement shall be used in the
performance of this Agreement.
In the event that Contractor employs subcontractors, such subcontractors
shall be required to furnish proof of workers' compensation insurance and shall
also be required to carry general, automobile and professional liability insurance
in reasonable conformity to the insurance carried by Contractor. In addition, any
work or services subcontracted hereunder shall be subject to each provision of
this Agreement.
16. PERMITS AND LICENSES:
Contractor, at his/her sole expense, shall obtain and maintain during the
term of this Agreement, all appropriate permits, certificates and licenses
including, but not limited to, a City Business License, that may be required in
connection with the performance of services hereunder.
17. REPORTS:
A. Each and every report, draft, work product, map, record and other
document, hereinafter collectively referred to as "Report", reproduced, prepared
or caused to be prepared by Contractor pursuant to or in connection with this
Agreement, shall be the exclusive property of City. Contractor shall not
copyright any Report required by this Agreement and shall execute appropriate
documents to assign to City the copyright to Reports created pursuant to this
Agreement. Any Report; information and data acquired or required by this
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Design Professional Agreement
Agreement shall become the property of City, and all publication rights are
reserved to City. Contractor may retain a copy of any report furnished to the
City pursuant to this Agreement.
B. All Reports prepared by Contractor may be used by City in
execution or implementation of:
(1) The original Project for which Contractor was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other City projects as appropriate.
C. Contractor shall, at such time and in such form as City may require,
furnish reports concerning the status of services required under this Agreement.
D. All Reports required to be provided by this Agreement shall be
printed on recycled paper. All Reports shall be copied on both sides of the paper
except for one original, which shall be single sided.
E. No Report, information or other data given to or prepared or
assembled by Consultant pursuant to this Agreement shall be made available to
any individual or organization by Contractor without prior approval by City.
F. Electronic and hard copies of Contractor's work product shall
constitute the Project deliverables. Plans to be in CAD and PDF formats, and
other documents to be in Microsoft Word and PDF formats. City holds
Contractor harmless for any modifications to the documents.
18. RECORDS:
Contractor shall maintain complete and accurate records with respect to
sales, costs, expenses, receipts and other such information required by City that
relate to the performance of services under this Agreement.
Contractor shall maintain adequate records of services provided in
sufficient detail to permit an evaluation of services. All such records shall be
maintained in accordance with generally accepted accounting principles and
shall be clearly identified and readily accessible. Contractor shall provide free
access to such books and records to the representatives of City or its designees at
all proper times, and gives City the right to examine and audit same, and to
make transcripts there from as necessary, and to allow inspection of all work,
data, documents, proceedings and activities related to this Agreement. Such
records, together with supporting documents, shall be kept separate from other
documents and records and shall be maintained for a period of three (3) years
after receipt of final payment.
If supplemental examination or audit of the records is necessary due to
concerns raised by City's preliminary examination or audit of records, and the
City's supplemental examination or audit of the records discloses a failure to
adhere to appropriate internal financial controls, or other breach of contract or
failure to act in good faith, then Contractor shall reimburse City for all
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Design Professional Agreement
reasonable costs and expenses associated with the supplemental examination or
audit.
19. NOTICES:
All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and conclusively shall be deemed served
when delivered personally or on the second business day after the deposit
thereof in the United States Mail, postage prepaid, registered or certified,
addressed as hereinafter
provided.
All notices, demands, requests, or approvals from Contractor to City shall
be addressed to City at:
City of Cupertino
10555 Mary Ave.
Cupertino CA 95014
Attention: Chris Orr
All notices, demands, requests, or approvals from City to Contractor shall
be addressed to Contractor at:
Intelligent Lighting Controls, Inc.
5229 Edina Industrial Blvd.
Minneapolis, MN. 55439
Attention: Trey Sattler
20. TERMINATION:
In the event Contractor fails or refuses to perform any of the provisions
hereof at the time and in the manner required hereunder, Contractor shall be
deemed in default in the performance of this Agreement. If such default is not
cured within the time specified after receipt by Contractor from City of written
notice of default, specifying the nature of such default and the steps necessary to
cure such default, City may terminate the Agreement forthwith by giving to the
Contractor written notice thereof.
City shall have the option, at its sole discretion and without cause, of
terminating this Agreement by giving seven (7) days' prior written notice to
Contractor as provided herein. Upon termination of this Agreement, each party
shall pay to the other party that portion of compensation specified in this
Agreement that is earned and unpaid prior to the effective date of termination.
In the event of termination, Contractor shall deliver to City, copies of all
reports, documents, and other work performed by Contractor under this
Agreement.
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Design Professional Agreement
21. COMPLIANCES:
Contractor shall comply with all state or federal laws and all ordinances,
rules and regulations enacted or issued by City.
22. CONFLICT OF LAVH:
This Agreement shall be interpreted under, and enforced by the laws of
the State of California excepting any choice of law rules which may direct the
application of laws of another jurisdiction. The Agreement and obligations of the
parties are subject to all valid laws, orders, rules, and regulations of the
authorities having jurisdiction over this Agreement (or the successors of those
authorities.)
Any suits brought pursuant to this Agreement shall be filed with the
courts of the County of Santa Clara, State of California.
23. ADVERTISEMENT:
Contractor shall not post, exhibit, display or allow to be posted, exhibited,
displayed any signs, advertising, show bills, lithographs, posters or cards of any
kind pertaining to the services performed under this Agreement unless prior
written approval has been secured from City to do otherwise.
24. WAIVER:
A waiver by City of any breach of any term, covenant, or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of
the same or any other term; covenant, or condition contained herein, whether of
the same or a different character.
22. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary
negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions
hereof. Any modification. of this Agreement will be effective only by written
execution signed by both City and Contractor.
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Design Professional Agreement
25. GIFTS:
A. Contractor is familiar with City's prohibition against the acceptance of any
gift by a City officer or' designated employee, which prohibition is found in City
Administrative Procedures.
B. Contractor agrees not to offer any City officer or designated employee any
gift prohibited by the Administrative Procedures.
C. The offer or 'giving of any prohibited gift shall constitute a material breach
of this Agreement by Contractor. In addition to any other remedies, City may
have in law or equity, City may terminate this Agreement for such breach as
provided in Section 19 of this Agreement.
26. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the
Agreement shall be deemed to be enacted herein, and the Agreement shall be
read and enf9rced as though each were included herein. If through mistake or
otherwise, any such provision is not inserted or is not correctly inserted, the
Agreement shall be amended to make such insertion on application by either
party.
27. CAPTIONS:
The captions, in this Agreement are for convenience only, are not a part of
the Agreement and in no way affect, limit or amplify the terms or provisions of
this Agreement.
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Design Professional Agreement
"KGRUIT
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed.
CONTRACTOR
Intelligent Lighting Controls, Inc.
By
Name
Title
Date Z I7
Tax I.D. No.: ` 1-10 g`t L
CITY OF CUPERTINO
A Municipal Corporation
Timm Borden, Director of Public Works
I
Date
APPROVED AS TO FORM:
Address:i.32,1�'%lc/hS&7
Carol Korade, City Attorney
ATTEST:
r
Grace Schmidt, City Clerk ( �- —/ Y
Contract Amount: 30M • 00
Account No.: S71 - �510
` 70"y
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Design Professional Agreement
Intelligent Lighting Controls, Inc.
5229 Edina Industrial Blvd
r Energy Saving Lighting Controls EXh!Ult "M Minneapolis, MN 55439
Phone 952-829-1900
Fax 952-829-1901
www.ilc-usa.com
Quote No. 22036 Page 1 of 1 Job: City of Cupertino, CA
12/15/2014
Sales Agency: Liqhtinq Systems/Roseville
Contact: Trey Sattler
Quoted by: dkoll
is quote is based on the following Bill of Material, Changes in material will require a re -quote.
Lighting Control Equipment
City of Cupertino, CA
Quantity Catalog Number
1.00 FSU
Description
Factory Start -Up & Programming.
Part No.
FSU
TOTAL: $3,000.00
Lot pricing will include all items on the B.O.M., count not guaranteed.
The price will include this specific bill of material and is based wholly on information forwarded to ILC. Any and all adders must be purchased at additional cost. Freigh,
is allowed and paid on orders with a total net invoice value of $5,000.00 or more. All other orders will be shipped prepaid and charged to the customer. Purchase
orders are required prior to submittal package. preparation.
Prices Valid Through 2/13/2015