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2010-097-Agreement With Arborist Consultant, Deborah EllisRESOLUTION 2010 -097 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT WITH DEBORAH ELLIS FOR SERVICES AS A CONSULTING ARBORIST TO THE TOWN RESOLVED, that since 2001 the Town has used the services of a consulting arborist to evaluate tree removal requests and tree impacts related to building permit and development applications and to prepare tree inventories and arborist reports; and RESOLVED, that the General Plan includes policies and implementing strategies supporting the retention of a consulting arborist; and f RESOLVED, that th'e` "TdNvr of LpsUatds sent Requests for Proposals to eight Bay Area certified arborists; and RESOLVED, that the Town received three proposals for consulting arborist services; and RESOLVED, that the most qualified consultant based on t]le proposals iTiterviews conducted by Town staff, and evaluation of sample arborist reports is Deborah Ellis, consulting Arborist & Horticulturist; and RESOLVED, that project manager Deborah Ellis has applicable experience with peer review, working with small communities, and is able to provide needed tree and landscape 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 regular meeting of the Town Council held on the 18th day of October, 2010, by the following vote: COUNCIL MEMBERS: AYES: Joe Pirzynski, Steve Rice, Barbara Spector, Mike Wasserman, Mayor Diane McNutt NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CL ADMINISTRATOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA AGREEMENT FOR CONSULTANT SERVICES THIS AGREEMENT is dated for identification this — day of October 2010 and is made by and between TOWN OF LOS GATOS, a California municipal corporation, ("Town ") and Deborah Ellis, Consulting Arborist & Horticulturist, ("Consultant"), whose address is P.O. Box 3714, Saratoga, CA 45070. This Agreement is made with reference to the following facts. I. RECITALS 1.1 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. 11. 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 pen that have been denied and appealed, and review of landscape plans for hillside homes, PIarmed 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 establishment 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 Exhibit 1 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. 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. 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. 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/Rgport Ilandlin . 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 Page 2 of 7 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 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 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 Assi 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 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. Page 3 of 7 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 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 3.1 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. 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. Page 4 of 7 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. 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. 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 tern 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 of 7 IV. GENERAL TERMS 4.1 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 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 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 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: wrooney @losgatosca.gov To Consultant: Deborah Ellis, MS Consulting Arborist & Horticulturist P.O. Box 3714 Saratoga, CA 95070 Phone: (408) 725 -1357 E -mail: decah@pacbell.net or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. Page 6 of 7 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: Deborah Ellis, MS Consulting Arborist & Horticulturist Department Approval: Wendie Rooney Community Development Director ATTEST: Town of Los Gatos Approved as to Form: Jackie Rose Clerk Administrator Michael Martello Interim Town Attorney Page 7 of 7