2002-111-Authorizing The Town Manager To Execute An Agreement With David L Babby Arbor Resources For Services As A Consulting Arborist To The TownRESOLUTION 2002 -111
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT WITH
DAVID L. BABBY, ARBOR RESOURCES, FOR SERVICES
AS A CONSULTING ARBORIST TO THE TOWN
RESOLVED, that the Town of Los Gatos Town Council has determined that there is a need
for a secondary or back-up consulting arborist; and
RESOLVED, that the General Plan 2000 .includes policies and implementing .strategies
supporting this action; and
RESOLVED, that the Town of Los Gatos recently sent Requests for Proposals to Bay Area
certified arborsts for preparation of the Tree Protection Ordinance update; and
RESOLVED,, that it was .determined that David L. !Babby, Arbor Resources, is a qualified
arboricultural consultant based on the proposals and interviews conducted by Town staff; and
.RESOLVED, that project manager DavidBabby has applicable experiencewith peer review,
working with small communities, and is able to provide needed tree review services to the Town;
and
.RESOLVED, by the Town Council that the TOWN OF LOS GATOS enter .into an
agreement for services as a consulting .arborist.
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 the consulting arborist
on behalf of the TOWN OF LOS GATOS.
PASSED AND ADOPTED at a regularmeeting of the Town Council held on the 15t day
of July, 2002, by the following vote:
COUNCIL MEMBERS:
AYES: Steven Blanton, Sandy Decker, .Steve Glickman, Joe Pirzynski,
.Mayor Randy Attaway.
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED.:
MAYOR. THE TOWN LOS GATOS
LOS GATOS, CALIFO IA
ATTEST:
°~
CLERK OF TIIE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
2
~~FFICE OF'I'HE TOWN CLERK
AGR~~• ~~%
IHH -
AGREEMENT FOR CONSULTING ARBORIST SER~~ES
REC
THIS AGREEMENT is entered into this day of June, 2001, byF~~fl -
Los Gatos, State of California, herein called "Town", and DAVID L. BABBY, ARBOR
RESOURCES, engaged in providing arborist consulting services herein called "Consultant".
RECITALS
A. Town is considering undertaking activities. to provide consulting arborist services for the
Town of Los Gatos.
B. Town desires to engage a certified arborist to provide consulting services to review, analyze,
and comment on development prof ect plans; prepare technical analyses and reports; conduct
peer review of outside arborist reports and attend public meetings because of Consultant's
experience and qualifications to perform the desired work.
C. Consultant represents and affirms that he is qualified and willing to perform the desired work
pursuant to this Agreement.
AGREEMENTS
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
Scope of Services. Consultant shall provide the services .listed below.
Administrative Duties
Whenneeded 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.
II. When needed by Town, work on special studies or proj ects including but not limited
to: preparation of a checklist for content of arborist reports for application packets,
emergency response and coordination, assistance with preparation/revision of hillside
design guidelines, 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.
III. 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.
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IV. When needed by Town, assist in the establishment and .subsequent modification of
Town's tree and landscape related ordinances, design guidelines, policies, and
development fees.
V. When needed by Town, attend meetings with Town staff, public officials,
community leaders, developers, contractors and the general public..
VI. 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.
VII. When needed by Town, attend Town Council, Planning Commission, and special
study session meetings when tree and/or landscaping issues and prof ect app ications
with tree removals, impacts to trees and/or landscape plans are being considered.
VIII. 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
IX. Town may occasionallyhave the need forother 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. Time of Performance. The services of Consultant are for a fixed one year period 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.
3. Compliance with Laws. 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,permts, 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
Town of Los Gatos.
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4. Sole ResponsibiltX. Consultant shall be responsible .for employing or engaging all persons
necessary to perform the services under this Agreement.
5. Information/Report Handling: All documents furnished to Consultant by Town and all
.reports .and supportive data prepared by Consultant under this Agreement are Town's
property and shall be delivered to Town upon the completion of Consultant's cervices or at
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 Town to the public, .and Consultant shall not make any of
the these documents or information available to any individual or organization not employed
by Consultant or Town without the written consent of Town before such release. Town
acknowledges that the reports to be prepared by Consultant pursuant to this Agreement are
for the purpose of evaluating a defined prof ect, and Town's use of the information contained
in the reports prepared by 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 be based upon
Town approval of each task as noted in the Scope of Services listed in this agreement.
Compensation for each task shall not exceed the amount per task noted in Consultant's
Schedule of Charges attached hereto as Exhibit "A" and incorporated by reference herein.
Billing shall be accompanied by a detailed explanation of the work performed by whom at
what rate and on what date. Billing invoices .submitted for payment must reference Town
Purchase Order Number, and if applicable,. the appropriate project address .and Town
Application Number (e.g. 290 Wooded View Drive/5-00-84). 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.
Only one (1) purchase order number per invoice will be accepted. All invoices and
statements to Town shall reference Town's purchase order number and be addressed as
follows:
Invoices: Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95030
Statements: Town of Los Gatos
Attn: Sandy Ortiz
P.O. Box 949
Los Gatos, CA 95030
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7. Availability ofRecords. Consultantshallrnaintain the records supporting bhis billing for not
less than three (3) years following comp etion of the work under this Agreement. Consultant
shall make these records availab e to authorized personnel of Town at Consultant's offices
during business hours upon written request of Town.
8. Project Manager. The Project .Manager for Consultant for the work under this .Agreement
shall be David L. Babby.
9. Assi n~y and Subcontracting. The services to be performed under this Agreement :are
unique and personal to Consultant. No portion of these services shall be assigned or
.subcontracted without the written consent of 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:
Bud N. Lortz
Director of Community Development
Town of Los Gatos
110 E. Main `Street
Los Gatos, CA 9.5030
To Consultant:
David L. Babby
Arbor Resources
P. D. Box 25295
San Mateo, CA 94402
.Fax: (408) 354-7593
Phone: (408) 354-6874
E-mail: blortz@town.los-gatos.ca.us
Fax: (650) 654-3352
Phone: (650) 654-3351
E-mail: arborresources@earthlink.net
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 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 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, 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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12. Conflict of Interest. Consultant understands that its professional responsibilities issolely to
Town. Consultant has and shall not obtain any holding or interest within Town of Los
Gatos. Consultant has no business holdings or agreements with any individual member of
Staff or management of 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 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 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 Town's sole discretion,
sever any such employment relationship.
13. .Equal Employment OpportunitX. 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 and his 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 Town all certificates of insurance, with original
endorsements effecting coverage. Consultant agrees that all certificates and
endorsements will be :received and approved by Town before work
commences.
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
Revised: June 27, 2002 Page 5 of 8
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sufficient to insure Consultant for professional errors or omissions in the
performance of the particular scope of work under this .agreement.
B. General Liability:
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 Consultant; products and completed operations of Consultant,
premises owned or used by Consultant. This requirement does not apply to
the professional liability insurance required for professional errors and
omissions.
ii. Consultant's insurance coverage shall be primary insurance as respects Town,
its officers, officials, employees. and volunteers. Any insurance or self-
insurances maintained by Town, its officers, officials, employees or
volunteers shall be excess of 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 Town, its officers, officials, employees or
volunteers.
iv. 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, canceled, reduced in coverage or in
limits except after thirty {30) days' prior written notice by certified mail, return
receipt requested, has been given to Town. Current certification of such .insurance
shall be kept on file at all times during the term of this agreement with 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 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.
15. Indemnification. Consultant shall save, keep and hold harmless indemnify and defend 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 Consultant, or any of
Consultant's officers, employees, or agents or any sub-consultant.
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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 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.
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 Court ofthe County of Santa Clara.
18. Termination of Agreement. Town and Consultant shall have the right to terminate this
agreement with or without cause by giving not ess than fifteen (15) days written notice of
termination. In the event of termination, Consultant shall deliver to Town all p ans, files,
documents, reports, performed to date by 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 Town bears to completed services contemplated under this Agreement
pursuant to the noted Scope of Services and 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 Town and Consultant.
20. Dis utes. In any dispute over any aspect of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, including costs of appeal.
21. Entire Agreement. This Agreement, including. Exhibits A & B, constitutes the complete and
exclusive statement of the Agreement between 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.
IIV WITNESS WHEREOF, Town and Consultant have executed this Agreement as of the
date indicated on page one (1).
Town of Los Gatos
Debra Figone, Town Manager
Town of Los Gatos
Revised: June 27, 2002
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Consultant:
David L. Babby
Arbor Resources
Page 7 of 8
ATTEST:
Clerk of Town of Los Gatos,
Los Gatos, California
Marian V. Cosgrove, Town Clerk
Approved as to Form:
Orry P. Korb,. Town Attorney
Revised: June 27, 2002 Page S of 8
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ARB~. R RESOURCES ~
~tof~ssto-~aL~tDOti~4~L41Q1'COIibLLLLi~9 ~7 JtfF ~p,tF
FEE SCHEnULE
Dsvid L. Babby
Re,~;e~7cred Con~ulting• Arhorist X399
Certifier) Arhurist #WE-40/IlA
CLIENT; Town of Los Gatos, Los Gatos, California
:PROJECT; Town of Los Gatos Development Review
Unless otherwise negotiated, all rates are subject to revision on January 1, 2003..
• General Services
• On-Sine Work: $100 per hour (one-hour minimum)
• Report Preparation: $90 per hour
• .Phone Consultation; ~$90 per hour
• Secretarial Fees: $36 per :hour
• Travel Time from Belmont (each-way); $30 per hour
• Litigation and Expert Testimony
• Consulting: $1b0.00 per hour
• Depositions: $200.00 per hour
• Court Appearances; $225.00 per hour
• Attend Public'Hearngs: $120 per hour (one-hour minimum)
•:• Soil and Laboratory Analysis
• Tissue and Soil Samples: Rate to be lletermined
• Arborist Time Billed at Rates under General Services
Additional ~o~t Information
•:• Materials and .expenses are billed at approximate cost.
:• All time is billed in 15-minute increments.
• Emergency work will be invoiced at 150% of the above rates.
• Arbor Resources reserves the right to invoice our current rates for all time spent after our
assignment has been completed.
Terms of Payment
Payment for services rendered is due within 30-days, from date of invoice, Late payments may
be subject to a 1.5% per month :additional charge. `Returned checks are subject to a :$25.00
charge.
P.O. Box 25295; San Ma#co, Calirorni3 I44U2 . Email: arborresources(~earthlink.net
Pbonc: GSO.654,3351 Fax: 6SO.654.3352 Licensed Contractor #79~7G3
Exhibit A
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