2011-011-Execute Agreement With W. Jeffrey HeidRESOLUTION 2011 -011
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT WITH W.
JEFFREY HEID TO SERVE AS A TOWN CONSULTANT TO REVIEW LANDSCAPE
PLANS AND TO PERFORM IRRIGATION AUDITS REQUIRED THROUGH THE
STATE MODEL WATER EFFICIENT LANDSCAPE ORDINANCE
WHEREAS, that since 2009 the Town's Consulting Arborist has been reviewing landscape
plans to meet Town/state water efficiency landscape requirements; and
WHEREAS, that the Town of Los Gatos Town Council has determined that there is an on-
going need for consulting services to review landscape plans to meet new state water efficient
ordinance landscape requirements; and
WHEREAS, that in 2010, the state revised their water efficiency landscape requirements
which now requires landscape plans and irrigation audits subject for review under the current state's
ordinance to be reviewed by licensed landscape professionals and irrigation auditors; and
WHEREAS, that this agreement is on a trial basis through the end of fiscal year 2011 -2012
to allow staff an opportunity to develop a better understanding of the new state requirements and to
adequately prepare a scope of work for an RFP for this service for the next fiscal year; and
WHEREAS, that Landscape Architect and Certified Landscape Irrigation Auditor, W.
Jeffrey Heid, has applicable experience and qualifications working with the new state water
efficiency requirements, has experience working with small communities, and is able to provide
needed landscape plan review and irrigation auditing services to the Town; and
RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter into an
agreement for services as a landscape architect and certified landscape irrigation auditor.
FURTHER RESOLVED, by the Town Council that the Town Manager is authorized and
directed to execute the agreement, attached hereto as Exhibit 1, for services as landscape architect
and certified irrigation auditor on behalf of the TOWN OF LOS GATOS.
PASSED AND ADOPTED at a regular meeting of the Town Council held on the 7th day of
March, 2011, by the following vote:
COUNCIL MEMBERS:
AYES: Steven Leonardis, Diane McNutt, Steve Rice, Mayor Joe Pirzynski
NAYS: None
ABSENT: Barbara Spector
ABSTAIN: None
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST-
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is dated for identification this _ day of March 2011 and is made by and
between TOWN OF LOS GATOS, a California municipal corporation, ( "Town ") and W. Jeffrey
Heid, Landscape Architect and Certified Landscape Irrigation Auditor, ( "Consultant "), whose
address is PO Box 14, Saratoga, CA 95071. This Agreement is made with reference to the
following facts.
I. RECITALS
1.1 Town has a need for consulting landscapelirrigation auditor professionals for evaluation of
landscape and irrigation plans pursuant to ensure compliance with the State's /Town's Water
Efficient Landscape Ordinance for properties within the Town of Los Gatos.
1.2 Town desires to engage a landscapelirrigation auditor professional to review, analyze, and
comment on landscape plans; prepare technical analyses and reports; conduct peer review of
outside irrigation reports and attend public meetings as needed.
1.3 Consultant represents and affirms that he is qualified and willing to perform the desired
work pursuant to this Agreement.
II. AGREEMENTS
2.1 Sc of Services Consultant shall provide the services listed below.
Administrative Duties
When needed by Town, review landscape and irrigation plans with proposed development
and redevelopment projects to ensure compliance with the State's /Town's Water Efficient
Landscape Ordinance.
a. When needed by Town, work on special studies or projects including but not limited
to: preparation of a checklist for content of landscape plans and irrigation reports for
application packets.
When needed by Town, evaluate landscape and irrigation plans for development
proposals including but not limited to: review landscape water budget components,
soil assessment and management, Iandscape maintenance and /or identify
recommendations and conditions of approval for landscape water reduction and
project monitoring.
C. When needed by Town, assist in the establishment and subsequent modification of
Town's Water Efficient Landscape Ordinance and development fees,
d. When needed by Town, attend meetings with Town staff, public officials,
community leaders, developers, contractors and the general public.
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e. When needed by Town, advise, support and assist Town departments, committees,
commissions, and Town Council. In addition, act as a liaison between Town and
Federal, State, and Regional agencies,
f When needed by Town, attend Town Council, Planning Commission, and special
study session meetings when water efficient landscaping/irrigation issues are being
considered.
g. As requested by Town, provide copies of draft and final draft work products of
reports and studies prepared for Town. Consultant shall provide electronic file
copies of these documents as needed,
Other miscellaneous services
The Town may occasionally have the need for other services not specifically listed in this
document that the consultant has the necessary experience and capabilities to provide.
Town or Redevelopment Agency may authorize consultant to perform such selected
services on an as- needed basis.
2.2 Time of Performance Consultant shall perform the services described in this agreement as
follows: The services of Consultant are through June 30, 2012, that will commence upon the
execution of the contract. Town retains the option with the mutual consent of Town
Manager and Consultant to renew the contract for a maximum of three optional years.
Should Town not renew a contract, the award and authorization of the contract shall
automatically expire. Town shall give Consultant at least 30 days' notice, prior to the
cancellation or expiration of the contract.
23 Com pliance with Laws The Consultant shall comply with all applicable laws, codes,
ordinances, and regulations of governing federal, state and local laws. Consultant
represents and warrants to Town that it has all licenses, permits, qualifications and
approvals of whatsoever nature which are legally required for Consultant to practice its
profession. Consultant shall maintain a Town of Los Gatos business license pursuant to
Chapter 14 of the Code of the Town of Los Gatos,
2.4 Sole Responsibility Consultant shall be responsible for employing or engaging all persons
necessary to perform the services under this Agreement,
2.5 InformatioRgport Handling All documents furnished to Consultant by the Town and all
reports and supportive data prepared by the Consultant tinder this Agreement are the
Town's property and shall be delivered to the Town upon the completion of Consultant's
services or at the Town's written request. All reports, information, data, and exhibits
prepared or assembled by Consultant in connection with the performance of its services
pursuant to this Agreement are confidential until released by the Town to the public, and the
Consultant shall not make any of the these documents or information available to any
individual or organization not employed by the Consultant or the Town without the written
consent of the Town before such release. The Town acknowledges that the reports to be
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prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a
defined project, and Town's use of the information contained in the reports prepared by the
Consultant in connection with other projects shall be solely at Town's risk, unless
Consultant expressly consents to such use in writing. Town further agrees that it will not
appropriate any methodology or technique of Consultant which is and has been confirmed
in writing by Consultant to be a trade secret of Consultant.
2.6 Compensation Compensation for Consultant's professional services shall not exceed the
established hourly rates, as set forth in the Fee Schedule (Exhibit A), which is attached
hereto and incorporated herein by reference. Payment shall be based upon Town approval
of each task.
2.7 Billing Billing shall be monthly by invoice within thirty (30) days of the rendering of the
service and shall be accompanied by a detailed explanation of the work perfom by whom
at what rate and on what date, Also, plans, specifications, documents or other pertinent
materials shall be submitted for Town review, even if Drily in partial or draft form.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be
addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031 -0655
2.8 Availability of Records Consultant shall maintain the records supporting this billing for
not less than three years following completion of the work under this Agreement.
Consultant shall make these records available to authorized personnel of the Town at the
Consultant's offices during business hours upon written request of the Town.
2.9 Assignability and Subcontracting The services to be performed under this Agreement are
unique and personal to the Consultant. No portion of these services shall be assigned or
subcontracted without the written consent of the Town.
2.10 Independent Contractor It is understood that the Consultant, in the performance of the
work and services agreed to be performed, shall act as and be an independent contractor and
not an agent or employee of the Town. As an independent contractor he /she shall not obtain
any rights to retirement benefits or other benefits which accrue to Town employee(s). With
prior consent, the Consultant may perform some obligations under this Agreement
by subcontracting, but may not delegate ultimate responsibility for performance or assign or
transfer interests under this Agreement. Consultant agrees to testify in any litigation brought
regarding the subject of the work to be performed under this Agreement. Consultant shall
be compensated for its costs and expenses in preparing for, traveling to, and testifying in
such matters at its then current hourly rates of compensation, unless such litigation is
brought by Consultant or is based on allegations of Consultant's negligent performance or
wrongdoing,
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2.11 Conflict of Interest Consultant understands that its professional responsibilities are solely
to the Town. The Consultant has and shall not obtain any holding or interest within the
Town of Los Gatos. Consultant has no business holdings or agreements with any individual
member of the Staff or management of the Town or its representatives nor shall it enter into
any such holdings or agreements. In addition, Consultant warrants that it does not presently
and shall not acquire any direct or indirect interest adverse to those of the Town in the
subject of this Agreement, and it shall immediately disassociate itself from such an interest,
should it discover it has done so and shall, at the Town's sole discretion, divest itself of such
interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it
does not employ a person having such an interest in this performance of this Agreement. If
after employment of a person, Consultant discovers it has employed a person with a direct
or indirect interest that would conflict with its performance of this Agreement, Consultant
shall promptly notify Town of this employment relationship, and shall, at the Town's sole
discretion, sever any such employment relationship.
2.12 Equal Employment Oppormnity Consultant warrants that it is an equal opportunity
employer and shall comply with applicable regulations governing equal employment
opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate
against persons employed or seeking employment with them on the basis of age, sex, color,
race, marital status, sexual orientation, ancestry, physical or mental disability, national
origin, religion, or medical condition, unless based upon a bona fide occupational
qualification pursuant to the California Fair Employment & Housing Act.
III. INSURANCE AND INDEMNIFICATION
M Minimum Scope of Insurance:
Consultant agrees to have and maintain, for the duration of the contract,
General Liability insurance policies insuring him/her and his/her firm to an
amount not less than: one million dollars ($1,000,000) combined single limit
per occurrence for bodily injury, personal injury and property damage.
ii. Consultant agrees to have and maintain for the duration of the contract, an
Automobile Liability insurance policy ensuring him/her and his/her staff to
an amount not less than one million dollars ($1,000,000) combined single
limit per accident for bodily injury and property damage.
Consultant shall provide to the Town all certificates of insurance, with
original endorsements effecting coverage, Consultant agrees that all
certificates and endorsements are to be received and approved by the Town
before work commences.
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General Liability:
The Town, its officers, officials, employees and volunteers are to be covered
as insured as respects: liability arising out of activities performed by or on
behalf of the Consultant; products and completed operations of Consultant,
premises owned or used by the Consultant.
ii. The Consultant's insurance coverage shall be primary insurance as respects
the Town, its officers, officials, employees and volunteers. Any insurance or
self- insurances maintained by the Town, its officers, officials, employees or
volunteers shall be excess of the Consultant's insurance and shall not
contribute with it,
iii. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Town, its officers, officials, employees or
volunteers.
iv. The Consultant's insurance shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of
the insurer's liability.
3.2 All Coverages Each insurance policy required in this item shall be endorsed to state that
coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt requested, has
been given to the Town. Current certification of such insurance shall be kept on file at all
times during the term of this agreement with the Town Clerk.
3.3 Workers' Compensation It is understood that Consultant currently has no employees. If
employees are hired in the future, Consultant shall obtain and maintain Workers'
Compensation insurance as required by California law and shall provide, evidence of such
policy to the Town. Consultant shall ensure that all subcontractors employed by Consultant
provide the required Workers' Compensation insurance for their respective employees.
3.4 Indemnification The Consultant shall save, keep, hold harmless and indemnify and defend
the Town its officers, agent, employees and volunteers from all damages, liabilities,
penalties, costs, or expenses in law or equity that may at any time arise or be set up because
of damages to property or personal injury received by reason of, or in the course of
performing work which may be occasioned by a willful or negligent act or omissions of the
Consultant, or any of the Consultant's officers, employees, or agents or any subconsultam.
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TV. GENERAL TERMS
4.1 Waiver No failure on the part of either party to exercise any right or remedy hereunder
shalt operate as a waiver of any other right or remedy that party may have hereunder, nor
does waiver of a breach or default under this Agreement constitute a continuing waiver of a
subsequent breach of the same or any other provision of this Agreement.
4.2 Governing Law This Agreement, regardless of where executed, shall be governed by and
construed to the laws of the State of California. Venue for any action regarding this
Agreement shall be in the Superior Court of the County of Santa Clara.
43 Termination of Agreement The Town and the Consultant shall have the right to terminate
this agreement with or without cause by giving not less than fifteen days (15) written notice
of termination. In the event of termination, the Consultant shall deliver to the Town all
plans, files, documents, reports, performed to date by the Consultant. In the event of Stich
termination, Town shall pay Consultant an amount that bears the same ratio to the
maximum contract price as the work delivered to the Town bears to completed services
contemplated under this Agreement, unless such termination is made for cause, in which
event, compensation, if any, shall be adjusted in light of the particular facts and
circumstances involved in such termination.
4.4 Amendment No modification, waiver, mutual termination, or amendment of this
Agreement is effective unless made in writing and signed by the Town and the Consultant.
4.5 Disputes In any dispute over any aspect of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, including costs of appeal.
4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if
mailed postage prepaid, and addressed to:
To Town:
Wendie Rooney
Community Development Director
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Fax: (408) 354 -7593
Phone: (408) 354 -6874
E -mail: rrrooney@losgatosca.gov
To Consultant:
W. Jeffrey Heid
Landscape Architect and
Certified Landscape Irrigation Auditor
PO Box 14
Saratoga, CA 95071
Phone: (408) 867 -8859
Email: ujheidasla @coineast.net
or personally delivered to Consultant to such address or such other address as
Consultant designates in writing to Town.
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4.7 Order of Precedence In the event of any conflict, contradiction, or ambiguity between the
terms and conditions of this Agreement in respect to the Products or Services and any
attachments to this Agreement, then the terms and conditions of this Agreement shall
prevail over attachments or other writings.
4.8 Entire Agreement This Agreement, including Exhibit A, constitutes the complete and
exclusive statement of the Agreement between the Town and Consultant. No terms,
conditions, understandings or agreements purporting to modify or vary this Agreement,
unless hereafter made in writing and signed by the party to be bound, shall be binding on
either party.
In WITNESS WHEREOF, the Town and Consultant have executed this Agreement,
Town of Los Gatos
Greg Larson, Town Manager
Town of Los Gatos
Consultant:
W. Jeffrey Heid
Landscape Architect and Certified Landscape
Irrigation Auditor
Department Approval:
Wendie Rooney
Community Development Director
ATTEST:
Town of Los Gatos
Approved as to Form:
Jackie Rose
Clerk Administrator
Judith Propp
Town Attorney
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LANDSCAPE ARCHITECT - IRRIGATION CONSULTANT
P: (408) 827-$659 � F: (408) 226-$085 , 5179 ONEIOA nRIVE. SAN JOSE, GA., 45125
EXHIBIT A
Fee Schedule: (Rates effective 1/112011)
(Hourty rate to be reviewed after each year for potential renegotiation)
Billed hourly at a rate of $125.00/hour, in murimtnn increments of 15 miuutes, for all irr
and out of office work including: travel to and from meeturg or project site., meeting time
and /or on site time and office time. A one hour minimum shall be billed per project.
Examples of work included, but not limited to are:
Plan review; sire visf s,' research; nweling %phonelenaail lime with Town of Los
Gatos, otrner, conoactor or pleat preparer, 1.rreparation of ulrimn comments;
Jollon uo review of additional or reriscd submittals.
After Hours Work: (only as requested or required due to time constrauris, before Gam m
after 6pnr, holidays)
Add 20% to regular hourly rate.
Refinbnrsables: (for any required paper copies of report, cotrunents, plan mark ups)
Billed at cost with invoice provided.
Invoices:
Shall be submitted either at the completion of each project reviow, or at the end of the
month_