1998-039 - Authorizing the Town Manager to enter into agreement with H.T. Harvey & Associcates, Ecological Consultants for mitigation monitoring servicesRESOLUTION 1998 -39
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO ENTER INTO AN
AGREEMENT WITH H.T. HARVEY & ASSOCIATES,
ECOLOGICAL CONSULTANTS
FOR MITIGATION MONITORING SERVICES
FOR A CONTRACT AMOUNT OF $5,970
RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa
Clara, State of California, that the Town of Los Gatos enter into an agreement with H. T. Harvey
& Associates for Mitigation Monitoring services for a contract amount of $5,970., and that the
Town Manager is authorized, and is hereby directed, to execute said contract /agreement attached
hereto and incorporated by reference as Exhibit "A" in the name and on behalf of the Town of
Los Gatos.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Los Gatos, California, held on the 20th day of April, 1998 by the following vote:
COUNCIL MEMBERS:
AYES: Randy Attaway, Joanne Benjamin, Steven Blanton, Jan Hutchins,
Mayor Linda Lubeck
NAYS: None
ABSENT: None
ABSTAIN: None �f
SIGNED: ez' 9. /A
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK OF THE TOWN OF LUATOS
LOS GATOS, CALIFORNIA
ortzc$g!��3 cl�Rx
AGR._�
AGREEMENT FOR ECOLOGICAL CONSULTANT SERVW „
P.Eso - . --
THIS AGREEMENT is entered into this
day of
and between the Town of Los Gatos, State of California, herein called the "Town ,
HARVEY & ASSOCIATES, engaged in providing Mitigation Monitoring consulting services
herein called the "Consultant ".
19_, by
and H T
A. The Town is considering undertaking activities for mitigation monitoring of the wetlands
relating to the Landscape and Lighting Assessment District No. 1- Kennedy Meadows
Benefit Zone.
B. The Town desires to engage a Ecological Consultant to provide consulting services in
conjunction with Landscape and Lighting Assessment District No. 1 - Kennedy Meadows
Benefit Zone, because of Consultant's experience and qualifications to perform the desired
work.
C. The Consultant represents and affirms that it is qualified and willing to perform the desired
work pursuant to this Agreement.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
Scope of Services. The Consultant shall provide the following services listed below.
A. Install Transect and Photodocumentation Markers.
B. Data Collection
C. Report Preparation
D. Literature Cited
Time of Performance The services of the Consultant are to commence upon the execution
of this Agreement with completion of the program by 1998, as provided for
in Consultants "Proposed Scope of Services" (attached hereto as Exhibit "A" and
incorporated by reference herein).
Revised: March 11. 1997 Page 1 of 7
N: \B &E\MILLIE \AGREEMEN \HARV EY. AGR
3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes,
ordinances, and regulations of governing federal, state and local laws. Consultant
represents and warrants to Town that it has all licenses, permits, qualifications and
approvals of whatsoever nature which are legally required for Consultant to practice its
profession. Consultant represents and warrants to Town that Consultant shall, at its sole
cost and expense, keep in effect or obtain at all times during the term of this Agreement
any licenses, permits, and approvals 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.
4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons
necessary to perform the services under this Agreement.
5. Inform_ ation//Report Handling. All documents furnished to Consultant by the Town and
all reports and supportive data prepared by the Consultant under this Agreement are the
Town's property and shall be delivered to the Town upon the completion of Consultant's
services or at the Town's written request. All reports, information, data, and exhibits
prepared or assembled by Consultant in connection with the performance of its services
pursuant to this Agreement are confidential until released by the Town to the public, and
the Consultant shall not make any of the these documents or information available to any
individual or organization not employed by the Consultant or the Town without the written
consent of the Town before such release. The Town acknowledges that the reports to be
prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating
a defined project, and Town's use of the information contained in the reports prepared by
the Consultant in connection with other projects shall be solely at Town's risk, unless
Consultant expressly consents to such use in writing. Town further agrees that it will not
appropriate any methodology or technique of Consultant which is and has been confirmed
in writing by Consultant to be a trade secret of Consultant.
6. Compensation. Compensation for Consultant's professional services shall not exceed
$5,970; and payment shall be based upon Town approval of each task.
Billing shall be accompanied by a detailed explanation of the work performed by whom
at what rate and on what date. Also, plans, specifications, documents or other pertinent
materials shall be submitted for Town review, even if only in partial or draft form.
7. Availability of Records. Consultant shall maintain the records supporting this billing for
not less than three (3) 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.
Revised: March u, 1997 Page 2 of 7
N: \B &E \MILLIE\AGREEMEN \HARV EY. AGR
8. Project Manager. The Project Manager for the Consultant for the work under this
Agreement shall be Rebecca Macon.
9. Aasignability and on ra ting. 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.
10. 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: Scott R. Baker, Director
Parks and Public Works Department
110 East Main Street
Los Gatos, CA 95030
To Consultant: H. T. Harvey
Ecological Consultants
906 Elizabeth Street
P. O. Box 1180
Alviso, CA 95002
or personally delivered to Consultant to such address or such other address as Consultant
designates in writing to Town.
11. 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 written consent, the Consultant may perform some obligations
under this Agreement by subcontracting, but may not delegate ultimate responsibility for
performance or assign or transfer interests under this Agreement.
Consultant agrees to testify in any litigation brought regarding the subject of the work to
be performed under this Agreement. Consultant shall be compensated for its costs and
expenses in preparing for, traveling to, and testifying in such matters at its then current
hourly rates of compensation, unless such litigation is brought by Consultant or is based
on allegations of Consultant's negligent performance or wrongdoing.
Revised: March 11, 1997 Page 3 of 7
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12. -Conflict of Int r t. Consultant understands that its professional responsibilities is 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.
13. Equal Employment Opp roirv. 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.
14. Insurance
A. Minimum Scope of Insurance:
i. Consultant agrees to have and maintain, for the duration of the contract,
General Liability insurance policies insuring him/her and his /her firm to an
amount not less than: 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.
iii. Consultant shall provide to the Town all certificates of insurance, with
original endorsements effecting coverage. Consultant agrees that all
certificates and endorsements are to be received and approved by the Town
before work commences.
Revised: March 11, 1997 Page 4 of 7
N: \B &E \MILLIE \AGREEMEN \HAR V EY. AGR
iv. Consultant agrees to have and maintain, for the duration of the contract,
professional liability insurance in amounts not less than $1,000,000 which
is sufficient to insure Consultant for professional errors or omissions in the
performance of the particular scope of work under this agreement
B. General Liability:
i. The Town, its officers, officials, employees and volunteers are to be
covered as insured as respects: liability arising out of activities performed
by or on behalf of the Consultant; products and completed operations of
Consultant, premises owned or used by the Consultant. This requirement
does not apply to the professional liability insurance required for
professional errors and omissions.
ii. The Consultant's insurance coverage shall be primary insurance as respects
the Town, its 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.
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.
C. 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.
D. In addition to these policies, Consultant shall have and maintain Workers'
Compensation insurance as required by California law and shall provide evidence
of such policy to the Town before beginning services under this Agreement.
Further, Consultant shall ensure that all subcontractors employed by Consultant
provide the required Workers' Compensation insurance for their respective
employees.
Revised: March u, 1997 Page 5 of 7
N: \B &E \MILLIE \AGREEMEN \HARVEY. AGR
15. Indemnification. The Consultant shall save, keep and hold harmless 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
subconsultant.
16. Waiver. No failure on the part of either party to exercise any right or remedy hereunder
shall operate as a waiver of any other right or remedy that parry 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.
17. 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 or Municipal Court of the County of Santa Clara.
18. 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 (15) days written
notice of termination. In the event of termination, the Consultant shall deliver to the Town
all plans, files, documents, reports, performed to date by the Consultant. In the event of
such termination, Town shall pay Consultant an amount that bears the same ratio to the
maximum contract price as the work delivered to the Town bears to completed services
contemplated under this Agreement pursuant to Exhibit A hereto, 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.
19. 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.
20. Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, as well as costs not to exceed $7,500 in total.
21. Entire Agreement. This Agreement 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.
Revised: March 11, 1997 Page 6 of 7
N: \B &E \MILLIE \AGREEMEN \nARV EY.AGR
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as of
the date indicated on page one (1).
Town of Los Gatos
David W. Knapp, Town Manager
Town of Los Gatos
ATTEST:
Clerk of the Town of Los Gatos,
Los Gatos, California
Marian V. Cosgrove, Town Clerk
Revised: March 11, 1997
N: \B &E \MILLIE \AGREEMEN \HARVEY.AGR
H. T. Harvey & Associates
Patrick H. Reynolds, M. S., Project Manager
H.T.Harvey & Associates
906 Elizabeth Street
P. O. Box 1180
Alviso, CA 95002
Approved as to Form:
Orry P. Korb, Town Attorney
Page 7 of 7
K T. HARVEY & ASSOC. _ ES
ECOLOGICAL CONSULTANTS
PROPOSED SCOPE OF SERVICES
KENNEDY MEADOWS
1997 MITIGATION MONITORING
July 23, 1997
H.T. Harvey and Associates proposes to provide ecological consulting services to the Town of Los Gatos
by conducting the 1997 mitigation monitoring at the Kennedy Meadows riparian mitigation site. This
scope is based on the site's mitigation and monitoring plan (H.T. Harvey and Associates 1994). The
mitigation and monitoring plan for the site requires annual monitoring in Years 1- 3,5,7, and 10. This
proposal covers monitoring to be performed in 1997. Attached is a cost estimate; all charges will be billed
on a time and charges, not -to- exceed basis. This scope is valid for a period of 60 days from the time of
submittal.
The tasks covered in this scope of services are as follows:
TASK 1. INSTALL TRANSECT AND PHOTODOCUMENTATION MARKERS
H.T. Harvey and Associates biologists will install transect and photodocumentation markers to
permanently mark the location of ransects and photodocumentation points for accurate duplication in
successive monitoring years. The ransects will be located using a stratified- random sampling method.
Transect and photodocumention points will be marked with photo - resistant PVC pipes.
TASK?. DATA COLLECTION
Vegetation data will be collected for use in evaluating habitat development at the site. Data collection will
include: counting 100% of the plants installed for survival; determining percent vegetative cover using the
line intercept method; measuring tree height; assessing plant health and vigor, photographing the site;
noting site conditions which could affect vegetation establishment.
TASK 3. REPORT PREPARATION
A report will be prepared which describes the results of the data collected and how it relates to habitat
development. The report will include data analysis, management recommendations, and photographs of
the site. The report will be submitted to the Town of Los Gatos for review before submittal to the
permitting agencies.
LITERATURE CITED
H.T. Harvey and Associates. 1994. Lands of Weir Riparian Mitigation Plan Project Number 733 -08.
L"! Alviso Office
906 Elizabeth Street • P.O. Box 1180
Alviso, CA 95002 • 408- 263 -1814 • Fax: 408- 263 -3823
❑ Fresno Office
423 West Fallbrook, Suite 206
Fresno, CA 93711 • 209- AAQ.tA91 . P= "a1 1d0 -ao48
Exhibit A
Q1VIJOSSH 8 . {9AN6'H .1 'H
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