Staff ReporttpW X OF
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COUNCIL AGENDA REPORT
DATE: OCTOBER 13, 2015
MEETING DATE: 10/20/15
ITEM NO. 3
TO: MAYOR AND TOWN COUNCIL fG� ��jy��
FROM: LAUREL R. PREVETTI, TOWN MANAGER �� / Z�" I��0,
6Ca1n L /tee pct
SUBJECT: AUTHORIZE THE TOWN MANAGER TO EXECUTE AGREEMENTS
WITH DEBORAH ELLIS AND WALTER LEVISON TO PROVIDE
SERVICES AS CONSULTING ARBORISTS TO THE TOWN.
RECOMMENDATION:
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 information 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
Planning Manager
n
Reviewed by:
I own Manager Town Attorney
N:N4GRWdminWorkFiles\2015 Comeil ReportsVOctober 20/nrborist.doc Reformatted: 5/30/02 Revised: 10115,115 2:14
PM
PAGE
MAYOR AND TOWN COUNCIL
SUBJECT: CONSULTING ARBORIST CONTRACTS
October 13, 2015
DISCUSSION:
The Consulting Arborist serves in a similar capacity to other Town development review
consultants such as the consulting architect, and geotechnical and environmental consultants.
Specifically, typical tasks that the Consulting Arborist may provide include the following:
• Site analysis and preparation of reports for proposed development projects
• Peer review of arborist reports submitted by applicants
• Review of landscape plans for hillside development, Planned Developments, and /or
commercial projects
• Review of trees that are the subject of an appeal of a denied tree removal permit
• Review and update of the Tree Preservation Ordinance and the Hillside Development
Standards & Guidelines landscape and tree preservation criteria
• Inspection of tree protection fencing
• Construction monitoring
• Attendance at public hearings
Qualifications:
Deborah Ellis has been a consulting arborist and horticulturist since 1984. She has worked on a
wide variety of projects in the Santa Clara Valley and has served as a consulting arborist for a
number of local jurisdictions including the Cities of Monte Serene, Saratoga, and Cupertino, and
the County of Santa Clara. Ms. Ellis currently handles nearly all of the consulting arborist
projects for the Town and her current contract expires on October 31, 2015. It is anticipated that
Ms. Ellis's existing assignments will run beyond the contract expiration date. Coupled with her
qualifications, staff recommends continuing service with Ms. Ellis for project consistency. Ms.
Ellis' qualifications include the following:
• Certified Professional Horticulturist
• Registered Consulting Arborist
• Board - certified Master Arborist
• California Agricultural Pest Control Advisor
• Education and experience to review both tree and landscape plans
• Outstanding arborist report quality and content
• Peer review experience
• Business location allows for easy access to project sites and interface with Town staff, while
minimizing travel costs
Walter Levison has been a consulting arborist since 1999. He has worked on a wide variety of
projects in the Bay Area and has served as a consulting arborist for the City of Belmont. Mr.
Levison's qualifications include the following:
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: CONSULTING ARBORIST CONTRACTS
October 13, 2015
DISCUSSION (Cont'd):
• Registered Consulting Arborist
• Certified Arborist
• Tree Risk Assessment
• Education and experience to review both tree and landscape plans
• Outstanding arborist report quality and content
• Peer review experience
ENVIRONMENTAL REVIEW:
Environmental review is not required as this is not a project defined by the California
Environmental Quality Act.
FISCAL IMPACT:
Arborist assessment is a cost recovery activity as part of the development review process.
Applicants pay a fee to the Town to cover the consultant costs to prepare arborist documents.
CONCLUSION:
Based on the qualifications of the selected companies, staff recommends that the Town Council
authorize the Town Manager to execute agreements with Deborah Ellis and Walter Levison to
serve as consulting arborists to the Town.
ALTERNATIVES:
It is staff s recommendation to have two consulting Arborists on contract for purposes of
availability. Therefore, should the Council decide not to select one of the two arborists
recommended by staff then another arborist would need to be selected.
Attachments:
1. Draft consulting arborist agreement for Deborah Ellis
2. Draft consulting arborist agreement for Walter Levison
Distribution:
Deborah Ellis, P.O. Box 3714, Saratoga, CA 95070
Walter Levison, 165 Linda Vista, Millbrae, CA 94030
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is dated for identification this 1" day of November 2015 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 95070. This Agreement is made with reference to the following facts.
L 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.
II. 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 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
ATTACHMENT 1
C. 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 of 7
Consultant in com2ection 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 continued
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 Billin . 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 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 Agreement
by subcontracting, but may not delegate ultimate responsibility for perfonnance 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 iminediately 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:
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.
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 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:
Joel S. Paulson
Planning Manager
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Fax: (408) 354 -7593
Phone: (408) 354 -6879
E -mail: jpaulson @losgatosea.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 6of7
4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the
terns and conditions of this Agreement in respect to the Products or Services and any
attachments to this Agreement, then the terns 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 terns,
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
Laurel R. Prevetti, Town Manager
Town of Los Gatos
Department Approval:
Joel S. Paulson
Planning Manager
Approved as to Form:
Robert W. Schultz
Town Attorney
Consultant:
Deborah Ellis, MS
Consulting Arborist & Horticulturist
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FEE SCHEDULE
Rates effective 11112015, revised annually each January. (Rev. 12115114)
Labor: (billed either hourly as described as follows, or on a flat fee perjob basis per quote). Hourly (billed in
minimum increments of 15 minutes) $190.00 per hour for all in and out -of -office work including travel portal to
portal from my office in Saratoga. Associate work is billed at half of this rate ($95.00 / hour). There is no charge
for car mileage. All time spent traveling on site and for office work is billable. Two hour minimum billinq per job.
Examples of work include but are not limited to: site visits & evaluations, research, report writing, phone, email or
in- person correspondence with the client or others working on the client's behalf (such as City planning
department personnel, architects, contractors, etc.), revisions to plans or documents and any other work done on
the client's behalf for their job or case. Per Diem rate for work requirinq overnight stays is $1600.00 per day
($800 for Associate) plus travel (e.g. airfare, rental car),lodging any other necessary expenses.
• Please Note: I have advanced degrees, credentials and qualifications in my fields of expertise. I provide
exceptionally high quality service and work products and require adequate time to do so. If this conflicts with your
project needs and /or budget, please do not contract with me.
• A completed and signed work authorization /contract is required prior to or upon commencement of work. I
will supply this contract unless otherwise agreed.
• Invoices are sent on approximately the 15`" and the last day of the month for work in progress, or upon
completion of the job. A 1.5% re- invoicing charge is applied to late payments.
• Rush Work or After -Hours Work (Before 6am or after 6pm), weekends or national holiday: add 20% to the
regular labor rate.
• Goods or Services purchased on behalf of the client are charged at cost plus a 10% markup.
• Legal Case Work is billed at the same rates as above except deposition and court testimony time is billed at
$380.00 per hour. All legal case work must be prepaid. A retainer fee is required; the amount dependent upon
the circumstances of the case as determined by Deborah Ellis, who will also supply the retainer agreement letter.
• Retainer fees may also be required for work in appraisal or other non -legal cases.
• Standby Charge: for construction, legal or other projects or cases where I am asked to be available for service
on a particular day(s) /time(s) and may or may not be called for service. Or when I am asked to provide service on
a particular day(s) /time(s) but service is cancelled with less than 48 hours' notice. A minimum of 1 hour per day
of requested service is charged for cancellation.
• Discounts:
• Long -term contracts (e.g. with municipalities) receive a 20% discount on hourly rates after $10,000 in
earned payments to D. Ellis. Discount valid only if there are no outstanding late payments.
• Non- profit charitable organizations receive a 20% discount on hourly rates. Discount valid only if there
are no outstanding late payments.
• Advanced Tree Decay /Structural condition evaluation utilizing sonic & electric resistance Tomography,
Resistance Drilling or Fungal DNA sampling & analysis and other procedures: customized quotes are provided for
individual trees or groups of trees based upon tree size, location /access, the number of tests, the detail level of
the written report supplied and other specific circumstances.
• Aerial Inspection & high resolution photography & video of trees, vegetation or land using remote.
controlled aerial inspection device: customized quotes provided; please contact for details.
PO Bnx 3714, Sara +cga, CA 95G70. 408 - 725 -3357. decah @pacbelLret. http= /Amov.deroh,com_
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AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is dated for identification this I" day of November 2015 and is made by and
between TOWN OF LOS GATOS, a California municipal corporation, ( "Town ") and Walter
Levison, Consulting Arborist, ( "Consultant "), whose address is 165 Linda Vista, Millbrae, CA
94030. This Agreement is made with reference to the following facts.
L 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.
II. 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 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
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 of 7
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 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 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 & Rousing 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:
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.
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 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:
Joel S. Paulson
Planning Manager
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Fax: (408) 354-7593
Phone: (408) 354 -6879
E -mail: jpaulson @losgatosca.gov
To Consultant:
Walter Levinson
Consulting Arborist
165 Linda Vista
Millbrae, CA 94030
Phone: (415) 203 -0990
E -mail: drtree@sbeglobal.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
Laurel R. Prevetti, Town Manager
Town of Los Gatos
Department Approval:
Joel S. Paulson
Planning Manager
Approved as to Form:
Robert W. Schultz
Town Attorney
Consultant:
Walter Levinson
Consulting Arborist
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Walter L.evison
OONSUI_T!NG AR80 ;n181
ISA Qualified Tree Risk Assessor ASCA Registered Consulting Arborist#01 ISA Ceilified Arborist #WC-31]2
CONSULTING RATES
WALTER LEVISON, CONSULTING ARBORIST
1/112015 to 12131/2015
Cell 415- 203 -0990 / Email drtree(asbcalobal -net V EXINUff
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INITIAL CONTACT if ORAL CONSULTING
5
MINIMUM. 2. HOUR PER - CLIENT. CHARGE
1.
'.
$280 ($140 x 2)
(COVERS UP TO 1 HOUR OF TRAVEL, AND r
1 HOUR ON SITE.)
STANDARD CONSULTING SERVICES
(
(ALL FIELD, OFFICE, &DRIVING TIME,
.'PORTAL TO PORTAL)..
2.
HAZARD TREE ASSESSMENT, TREE
$140 /HR.
INVENTORY, CONSTRUCTION
MONITORING, SPECIES SELECTION,
MONETARY VALUATION (APPRAISAL),
ARBORIST REPORTS, TREE PROTECTION
AND MANAGEMENT PLANS, ETC.r
SPECIAL CONSULTING SERVICES
RESISTOGRAPH: ADVANCED DECAY
OF
$140
3
:DETECTION AND ANALYSIS USING A
/HR REGULAR FIELD AND OFFICE
RESISTOGRAPH MICRODRILLING DEVICE
HOURS
WITH DIGITAL GRAPH :OUTPUT.
RUSH CONSULTING SERVICES
4
TIME TO COMPLETION OF SMALLER JOB
$Y80 /HR
WRITTEN WORK PRODUCT IS TYPICALLY
!24 TO 96 HOURS FROM DATE OF
CONTRACT SIGNING.
:MUNICIPAL CONSULTING SERVICES li
$140 /HR
5
(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.)
s'
SUBCONSULTING UNDER OTHER
(NEGOTIABLE)
CONSULTING ARBORISTS
LEGAL CONSULTING SERVICES
7.
(FORENSIC TREE FAILURE ASSESSMENTS, -
$180 to $350 1HR (NEGOTIABLE)
c
DEPOSITIONS, ATTENDANCE OF }
MEDIATION HEARINGS, ETC.)
Cell 415- 203 -0990 / Email drtree(asbcalobal -net V EXINUff
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