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03 Attachment 2 - Original 2015 AgreementCLERK DEPARTMENT AGR I 5, ;;L1j IIIl{ __ ,,--=-= -----ORD AGREEMENT FOR CONSUL TANT SERVICE~0------- THIS AGREEMENT is dated for identification this ls' day of November 28!'§9ioo-is-mads by aud.- between TOWN OF LOS GATOS. a California municipal corporation. ("Town") and Walter Levison, Consulting Arborist, ("ConsultanC). whose address is 165 Linda Vista, Millbrae, CA 94030. This Agreement is made with reference to the following facts. I. RECITALS l.1 Town has a need for consulting arborist services for evaluation of trees on properties within the Town of Los Gatos. 1.2 Town desires to engage a certified arborist to review, analyze, and comment on development project plans; prepare technical analyses and reports; conduct peer review of outside arborist 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. H. AGREEMENTS 2.1 Scope of Services. Consultant shall provide the services listed below. Administrative Duties When needed by Town, assess the potential impacts to trees associated with proposed development and redevelopment projects. This shall include evaluating plans for development proposals, reviewing arborist reports and/or identifying mitigation measures and recommending preservation measures and conditions of approval. a. When needed by Town, work on special studies or projects including but not limited to: preparation of a checklist for content of arborist reports for application packets, emergency response and coordination, review of tree removal permits that have been denied and appealed, and review of landscape plans for hillside homes, Planned Developments, and/or commercial projects. b. When needed by Town, conduct field investigations, studies, and prepare reports related to tree removals and impacts from proposed construction, and develop recommendations for mitigation and preservation measures. c. When needed by Town, assist in the establislunent and subsequent modification of Town's tree and landscape related ordinances, design guidelines, policies, and development fees. d. When needed by Town, attend meetings with Town staff, public officials, community leaders, developers, contractors, and the general public. Page 1 of 7 ATTACHMENT 2 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 tree and/or landscaping issues and project applications with tree removals, impacts to trees and/or landscape plans 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 for a five year period that will commence upon the execution of the contract. 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. 2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal,. state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the 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 Page 2 of7 Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further a&'!"ees that it will not appropriate any methodology or technique of Consultant which is and has been confinned 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 performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows: Invoices: Town of Los Gatos Attn: Accounts Payable P.O. Box 655 Los Gatos, CA 9503 1-0655 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 written consent, the Consultant may perform some obligations under this A!,,'feement 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. Page 3 of7 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 perfonnance 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 pe1forrnance 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. I 2 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. III. INSURANCE AND INDEMNIFICATION 3. I Minimum Scope of Insurance: 1. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her film 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. 11. 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. 11i. 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. 1v. Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than $I ,000,000 which is sufficient to insure Consultant for professional errors or omissions in the perfonnance of the particular scope of work under this agreement. Page4of7 General Liability: I. The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability mising out of activities perfonned 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 e1TOrs and omissions. H. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or selt:insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant's insura11ce and shall not contribute with it. ui. Any failure to comply with reporting prov1s10ns of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers. 1v. 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 subconsultant. Page 5 of7 IV. GENERAL TERMS 4. J Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara. 4.3 Tennination of Agreement. The Town and the Consultant shall have the right to tenninate this agreement with or without cause by giving not less than fifteen days ( 15) written notice of te1mination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such tennination. 4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in w1iting 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: Joel S. Paulson Planning Manager Town of Los Gatos J IO E. Main Street Los Gatos, CA 95030 Fax: (408) 354-7593 Phone: (408) 354-6879 E-mail; jpaulson@losgatosca.gov To Consultant: Walter Levison Consulting Arborist 165 Linda Vista Millbrae, CA 94030 Phone: (415) 203-0990 E-mail: drtree@sbcglobal.net or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. Page 6 of7 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 te1ms 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 tenns, 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 ~,J~1~.:gcr Town of Los Gatos Department Approval: Planning Manager Consultant: Walter Levison Consulting Arborist Page 7 of7 ISA Qualified Tree Risk Assesso: ASCA Reaistered Cansultina Arbonst #401 !SA Certified Arborist #WC.3172 1. 2. 3. 4. 5. 6. 7. CONSUL TING RATES WALTER LEVISON, CONSULTING ARBORIST 1/1/2015 to 12/31/2015 INITIAL CONTACT I ORAL CONSULTING MINIMUM 2 HOUR PER-CLIENT CHARGE $280 ($140 x 2) (COVERS UP TO 1 HOUR OF TRAVEL. AND 1 HOUR ON SITE ) STANDARD CONSUL TING SERVICES (ALL FIELD, OFFICE, & DRIVING TIME. PORTAL TO PORTAL). HAZARD TREE ASSESSMENT, TREE $140/HR INVENTORY, CONSTRUCTION MONITORING, SPECIES SELECTION, MONETARY VALUATION (APPRAISAL), ARBORIST REPORTS, TREE PROTECTION AND MANAGEMENT PLANS, ETC. SPECIAL CONSUL TING SERVICES $280/HR DURING USE OF MACHINE RESISTOGRAPH: ADVANCED DECAY $140/HR REGULAR FIELD AND OFFICE DETECTION AND ANALYSIS USING A RESISTOGRAPH MICRODRILLING DEVICE HOURS WITH DIGITAL GRAPH OUTPUT RUSH CONSULTING SERVICES TIME TO COMPLETION OF SMALLER JOB $280/HR WRITTEN WORK PRODUCT IS TYPICALLY 24 TO 96 HOURS FROM DATE OF CONTRACT SIGNING. MUNICIPAL CONSULTING SERVICES $140/HR (CONTRACT CITY ARBORIST SERVICES) MINIMUM 3 HOUR DAILY CHARGE ($420). (ALL FIELD, OFFICE, & DRIVING TIME, EVENING MEETINGS: PORTAL TO PORTAL). MINIMUM 4 HOUR CHARGE ($560.) SUBCONSUL TING UNDER OTHER (NEGOTIABLE) CONSUL TING ARBORISTS LEGAL CONSUL TING SERVICES (FORENSIC TREE FAILURE ASSESSMENTS, $180 to $350/HR (NEGOTIABLE) DEPOSITIONS, ATTENDANCE OF MEDIATION HEARINGS, ETC.) ---~ 1 of 1 Cell 415-203-0990 I Email driree1&sbcqlobal net DATE: TO: FROM: SUBJECT: COUNCIL AGENDA REPORT OCTOBER 13, 2015 MAYOR AND TOWN COUNCIL MEETING DA TE: 10/20/15 ITEMNO. 3 LAUREL R. PREVETTJ, TOWN MANAGER .fJN11,,,.,, J, , &t!a£lJev./, r·ZJui~~L ;Juv<Rfi., AUTHORIZE THE TOWN MANAGER TO EXECUTll AGREEMENTS WITH DEBORAH ELLIS AND WALTER LEVISON TO PROVIDE SERVICES AS CONSULTING ARBORISTS TO THE TOWN. RECOMMEND A TJON: Authorize the Town Manager to execute agreements with Deborah Ellis and Walter Levison to provide services as Consulting Arborists to the Town. BACKGROUND: The Town Arborist assists Town staff and Town decision makers in the application review process for most discretionary development projects, providing necessary infomiation on existing tree health and suitability for retention, potential impact to existing trees, and necessary mitigation measures to protect existing trees. The arborist also assists in reviewing appeals of tree removal permits. Currently, Deborah Ellis and Arbor Resources are the Town's arborists. The Town recommends two arborists so there is a backup. On August 17, 2015, the Town distributed a Request for Qualifications (RFQ) for a consulting arborist. Four proposals were received and reviewed by staff. The four applicants were all qualified to provide consulting arborist services to the Town. However, staff concluded that Deborah Ellis and Walter Levison were qualified and reasonably priced to provide services to meet the needs of the Town as described in this report. The two arborists who were not selected were Arbor Resources and Monarch Consulting. Arbor Resources had a higher hourly rate and Monarch Consulting had a higher hourly rate, longer turnaround time, and the least experience. PREPARED BY: JOEL S. PAULSON "} /J /,/' /J Planning Manager ~ /~ Reviewed by: '-+='l\ssistant Town M ager __ Town Attorney \II" Finance N:\MGR\AdminWorkFiles\2015 Council Reports\Oct.0ber 20\arborist.doc PM Refoimattcd: 5/30/02 Revised: 10115/15 2:14 1 r I~ *;~2~~h~,eiltM1:;11 I AGREEMENT I AMENDMENT ROUTING COVER SHEET Initiating Department: COD Contact Name/Phone: Linda I -5766 Agreement Title: Agreement for Consultant Services Term of Agreement: From November l, 2015 To October 31, 2020 Date Approved By Council: Vendor Name: Vendor Email: Vendor Contact: Business License #: Insurance (IHH) #: October 20, 2015 Walter Levison, Consulting Arborist drtree@sbcglobal.net Walter Levison Item or Resolution #: 3 Vendor#: 4419 Vendor Phone: 415-203-0990 Expiration Date: Dec 31, 2015 Expiration Date: D Insurance waiver requested (a completed Release of Liability is attached) Please Select: ~This is a standard agreement form that has not been altered. OAlterations have been made to the following paragraph(s)/section(s): D Vendor Agreement D Sole Source 0 BONDS INCLUDED # of Originals _J__ Amount of Agreement: No PO required-monies from applicant Program and Account#: 3999-68413 pass thru account Routing l. Clerk 2. Finance 3. Attorney 4. Manager 5. Clerk 0 Not enough money in line item will be absorbed within budget Action(s) Date Completed Signature I. Assign Agreement# 15. ,2d, \ / 2. Attachments included/labeled./ 3. No automatic renewa1s without defined termination date 4. Verify Insurance I. Confirm Funds Budgeted)( #- 2. Confirm contract amount agrees with Council approval X. 3. Verify Purchasing Policy Compliance (Bids/Sole Source/Bus Purpos /RFP 4. Check Payment Terms./ 1. Approve Insurance Waiver 2. Sign Agreement I. Sign Agreement OIL \o 1. Scan and file agreement 2. Email department pdf of signed agreement (Department sends agreement to vendor) Agreement Narrative: lfyour agreement has gone before the Town Council for approval, please reference that fact and include a very brief description of the purpose of the agreement. Identify bids/business purpose for vendor selection/RFP/Sole Source. If hourly rate please identify how cost was determined. If your agreement has not gone to the Town Council for approval, include a discussion of the purpose of the agreement, how the Town's purchasing procedures were followed, and any special instructions. The Town Arborist assists Town staff and Town decision makers in the application review process for most discretionary development projects, providing necessary information on existing tree health and suitability for retention, potential impact to existing trees, and necessary Please insert mitigation measures to protect existing trees. The arborist also assists in reviewing appeals of t . tree removal permits. Currently, Deborah Ellis and Arbor Resources are the Town's arborists. your narra ive The Town recommends two arborists so there is a backup. here: On August 17, 2015, the Town distributed a Request for Qualifications (RFQ) for a consulting arborist. Four proposals were received and reviewed by staff. The four applicants were all qualified to provide consulting arborist services to the Town. However, staff concluded that Deborah Ellis and Walter Levison were qualified and reasonably priced to provide services to meet the needs of the Town as described in this report. The two arborists who were not selected were Arbor Resources and Monarch Consulting. Arbor Resources had a higher hourly rate and Monarch Consulting had a higher hourly rate, longer turnaround time, and the least experience. Department Checklist (to be completed by originating department): IZJ Agreement Signed by Vendor: IZl List Exhibits/Attachments with Title(s): Attachment A-Consulting Rates ---------------------------- D Copy of insurance certificates or Release of Liability O Originals of bonds issued for contract IZJ First page ofTown Council report 0 Scope of work aligns to Council Report and contractor proposal/exhibits D DIR#: __________ _ Date Project Awarded: _______ _ Date Staff submitted Project to DIR: ________ _ Project# __________________ _ This Page Intentionally Left Blank