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1998-039 - Authorizing the Town Manager to enter into agreement with H.T. Harvey & Associcates, Ecological Consultants for mitigation monitoring servicesRESOLUTION 1998 -39 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO ENTER INTO AN AGREEMENT WITH H.T. HARVEY & ASSOCIATES, ECOLOGICAL CONSULTANTS FOR MITIGATION MONITORING SERVICES FOR A CONTRACT AMOUNT OF $5,970 RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara, State of California, that the Town of Los Gatos enter into an agreement with H. T. Harvey & Associates for Mitigation Monitoring services for a contract amount of $5,970., and that the Town Manager is authorized, and is hereby directed, to execute said contract /agreement attached hereto and incorporated by reference as Exhibit "A" in the name and on behalf of the Town of Los Gatos. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 20th day of April, 1998 by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Joanne Benjamin, Steven Blanton, Jan Hutchins, Mayor Linda Lubeck NAYS: None ABSENT: None ABSTAIN: None �f SIGNED: ez' 9. /A MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF LUATOS LOS GATOS, CALIFORNIA ortzc$g!��3 cl�Rx AGR._� AGREEMENT FOR ECOLOGICAL CONSULTANT SERVW „ P.Eso - . -- THIS AGREEMENT is entered into this day of and between the Town of Los Gatos, State of California, herein called the "Town , HARVEY & ASSOCIATES, engaged in providing Mitigation Monitoring consulting services herein called the "Consultant ". 19_, by and H T A. The Town is considering undertaking activities for mitigation monitoring of the wetlands relating to the Landscape and Lighting Assessment District No. 1- Kennedy Meadows Benefit Zone. B. The Town desires to engage a Ecological Consultant to provide consulting services in conjunction with Landscape and Lighting Assessment District No. 1 - Kennedy Meadows Benefit Zone, because of Consultant's experience and qualifications to perform the desired work. C. The Consultant represents and affirms that it is qualified and willing to perform the desired work pursuant to this Agreement. NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS: Scope of Services. The Consultant shall provide the following services listed below. A. Install Transect and Photodocumentation Markers. B. Data Collection C. Report Preparation D. Literature Cited Time of Performance The services of the Consultant are to commence upon the execution of this Agreement with completion of the program by 1998, as provided for in Consultants "Proposed Scope of Services" (attached hereto as Exhibit "A" and incorporated by reference herein). Revised: March 11. 1997 Page 1 of 7 N: \B &E\MILLIE \AGREEMEN \HARV EY. AGR 3. Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant represents and warrants to Town that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos. 4. Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 5. Inform_ ation//Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town's property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant. 6. Compensation. Compensation for Consultant's professional services shall not exceed $5,970; and payment shall be based upon Town approval of each task. Billing shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form. 7. Availability of Records. Consultant shall maintain the records supporting this billing for not less than three (3) years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town. Revised: March u, 1997 Page 2 of 7 N: \B &E \MILLIE\AGREEMEN \HARV EY. AGR 8. Project Manager. The Project Manager for the Consultant for the work under this Agreement shall be Rebecca Macon. 9. Aasignability and on ra ting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the Town. 10. Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to: To Town: Scott R. Baker, Director Parks and Public Works Department 110 East Main Street Los Gatos, CA 95030 To Consultant: H. T. Harvey Ecological Consultants 906 Elizabeth Street P. O. Box 1180 Alviso, CA 95002 or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town. 11. Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he /she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing. Revised: March 11, 1997 Page 3 of 7 N: \B &E \MILLIE \AGREEMEN \HARV EY.AGR 12. -Conflict of Int r t. Consultant understands that its professional responsibilities is solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship. 13. Equal Employment Opp roirv. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. 14. Insurance A. Minimum Scope of Insurance: i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his /her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his /her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences. Revised: March 11, 1997 Page 4 of 7 N: \B &E \MILLIE \AGREEMEN \HAR V EY. AGR iv. Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than $1,000,000 which is sufficient to insure Consultant for professional errors or omissions in the performance of the particular scope of work under this agreement B. General Liability: i. The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions. ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self - insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. C. All Coverages: Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. D. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees. Revised: March u, 1997 Page 5 of 7 N: \B &E \MILLIE \AGREEMEN \HARVEY. AGR 15. Indemnification. The Consultant shall save, keep and hold harmless indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant. 16. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that parry may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 17. Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior or Municipal Court of the County of Santa Clara. 18. Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen (15) days written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement pursuant to Exhibit A hereto, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. 19. Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant. 20. Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, as well as costs not to exceed $7,500 in total. 21. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party. Revised: March 11, 1997 Page 6 of 7 N: \B &E \MILLIE \AGREEMEN \nARV EY.AGR IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement as of the date indicated on page one (1). Town of Los Gatos David W. Knapp, Town Manager Town of Los Gatos ATTEST: Clerk of the Town of Los Gatos, Los Gatos, California Marian V. Cosgrove, Town Clerk Revised: March 11, 1997 N: \B &E \MILLIE \AGREEMEN \HARVEY.AGR H. T. Harvey & Associates Patrick H. Reynolds, M. S., Project Manager H.T.Harvey & Associates 906 Elizabeth Street P. O. Box 1180 Alviso, CA 95002 Approved as to Form: Orry P. Korb, Town Attorney Page 7 of 7 K T. HARVEY & ASSOC. _ ES ECOLOGICAL CONSULTANTS PROPOSED SCOPE OF SERVICES KENNEDY MEADOWS 1997 MITIGATION MONITORING July 23, 1997 H.T. Harvey and Associates proposes to provide ecological consulting services to the Town of Los Gatos by conducting the 1997 mitigation monitoring at the Kennedy Meadows riparian mitigation site. This scope is based on the site's mitigation and monitoring plan (H.T. Harvey and Associates 1994). The mitigation and monitoring plan for the site requires annual monitoring in Years 1- 3,5,7, and 10. This proposal covers monitoring to be performed in 1997. Attached is a cost estimate; all charges will be billed on a time and charges, not -to- exceed basis. This scope is valid for a period of 60 days from the time of submittal. The tasks covered in this scope of services are as follows: TASK 1. INSTALL TRANSECT AND PHOTODOCUMENTATION MARKERS H.T. Harvey and Associates biologists will install transect and photodocumentation markers to permanently mark the location of ransects and photodocumentation points for accurate duplication in successive monitoring years. The ransects will be located using a stratified- random sampling method. Transect and photodocumention points will be marked with photo - resistant PVC pipes. TASK?. DATA COLLECTION Vegetation data will be collected for use in evaluating habitat development at the site. Data collection will include: counting 100% of the plants installed for survival; determining percent vegetative cover using the line intercept method; measuring tree height; assessing plant health and vigor, photographing the site; noting site conditions which could affect vegetation establishment. TASK 3. REPORT PREPARATION A report will be prepared which describes the results of the data collected and how it relates to habitat development. The report will include data analysis, management recommendations, and photographs of the site. The report will be submitted to the Town of Los Gatos for review before submittal to the permitting agencies. LITERATURE CITED H.T. Harvey and Associates. 1994. Lands of Weir Riparian Mitigation Plan Project Number 733 -08. L"! Alviso Office 906 Elizabeth Street • P.O. Box 1180 Alviso, CA 95002 • 408- 263 -1814 • Fax: 408- 263 -3823 ❑ Fresno Office 423 West Fallbrook, Suite 206 Fresno, CA 93711 • 209- AAQ.tA91 . P= "a1 1d0 -ao48 Exhibit A Q1VIJOSSH 8 . {9AN6'H .1 'H ll =l 69 y y y R b G O O_ d tl00 � 'o r G .O O rt r' 7 .n. 9 < 3 3 G y G m ao G G m o 00 0 C n N R O O v+ n O F N j =y � n 3 N m m G G G G 0 0 cn sv O O U U U U C C' G n Oo .1 n o � 69 y y y R b G O O_ d tl00 � 'o r G .O O rt r' 7 .n. 9 < 3 3 G y G m ao G G m o 00 0 C n N R O O v+ n O F N j =y � n 3 N m m G G G G 0 0 cn sv O O U U U U O d I O` I O\ tNa U AI I.CICIL U UI IUIOI..i h r-7 N y • i=7 � � H �a y G r+ e V QO S ..r O y a O O �t UQ C G Oo -�S O d I O` I O\ tNa U AI I.CICIL U UI IUIOI..i h r-7 N y • i=7 � � H �a y G r+ e V QO S ..r O y a O O �t UQ