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David Hayes (2011) , . e • Professional/ Technical Services Agreement for View Restoration Arborist Consulting Services between The City of RANCHO PALOS VERDES Lill Mr. David Hayes • THIS AGREEMENT ("Agreement") is made and entered into this 17th day of May, 2011 by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY") and Mr. David Hayes (hereafter referred to as "CONSULTANT"). RECITALS WHEREAS, CITY desires to engage a consultant in the field of arboriculture to provide professional services for view restoration as described in this Agreement; and WHEREAS, CITY's Local View Restoration Guidelines and Procedures require expert arboriculture testimony before the Planning Commission and the City Council when considering the effect of foliage removal, trimming, and replacement for View Restoration Application Permit requests; and WHEREAS, CONSULTANT has offered to provide the required services on the terms and in the manner set forth herein and in a format consistent with CITY's Local View Restoration Guidelines and Procedures. IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto agree as follows: AGREEMENT ARTICLE 1 SCOPE OF SERVICES 1.1 Project Description The Project is described as follows: View Restoration Arborist Consulting Services. 1.2 Description of Services Subject to the terms and conditions set forth in this Agreement, CONSULTANT shall provide professional arboriculture services in connection with the administration of CITY's View Preservation and Restoration Ordinance. The professional arboriculture services to be performed by CONSULTANT shall include, but are not limited to, the services more particularly described below: (a) When requested by CITY, CONSULTANT shall attend meetings with CITY pursuant to the procedures set forth in the CITY's Local View Restoration Guidelines and Procedures. (b) When requested by CITY, CONSULTANT shall provide CITY with written reports or statements concerning, but not limited to, foliage health and safety, Page 1 of 9 R6876-0001\1349852v1.doc growth rates, trimming or removal impacts, and other such topics relating to arboriculture services. 1.3 Schedule of Work Upon request by the CITY, CONSULTANT shall perform with due diligence the services requested by the CITY. Time is of the essence in this Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty performance by CITY, other consultants/contractors, or governmental agencies, or any other delays beyond CONSULTANT's control or without CONSULTANT's fault. ARTICLE 2 COMPENSATION 2.1 Fee CITY agrees to compensate CONSULTANT at a fixed rate of($125) per hour ("Hourly Rate"), which includes all labor and costs, and in any case an amount not to exceed two thousand dollars ($2,000) annually for services as described in Article 1. The Hourly Rate shall be in effect through the end of this Agreement. 2.2 Payment Address All payments due CONSULTANT shall be paid to: Mr. David Hayes, Consulting Arborist 1124 N. Lindendale Avenue Fullerton, CA 92831 2.3 Terms of Compensation CONSULTANT shall submit monthly invoices for the work and number of work hours completed in the previous month. CITY agrees to authorize payment for all undisputed invoice amounts within thirty(30) days of receipt of each invoice. CITY agrees to use its best efforts to notify CONSULTANT of any disputed invoice amounts within ten (10) days of the receipt of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed amount shall not be deemed a waiver of CITY's right to challenge such amount or percentage. Additionally, in the event CITY fails to pay any undisputed amounts due CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY agrees that CONSULTANT shall have the right to consider said default a total breach of this Agreement and be terminated by CONSULTANT without liability to CONSULTANT upon ten (10) working days advance written notice. Page 2 of 9 R6876-0001\1349852v1.doc • 2.4 Additional Services CITY may request additional specified work under this Agreement. All such work must be authorized in writing by the CITY's Director of Community Development prior to commencement. CONSULTANT shall perform such services, and CITY shall pay for such additional services at the Hourly Rate. 2.5 Term of Agreement This Agreement shall commence on July 1, 2011 and shall terminate on June 30, 2013, unless sooner terminated pursuant to Article 4 of this Agreement. ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification CONSULTANT will defend and indemnify CITY, its officers, employees, and agents against, and will hold each of them harmless from, damages to persons or property, penalties, obligations, liabilities, and costs, including but not limited to reasonable costs of defense, that may be claimed by any person, firm, corporation, political subdivision, or other organization to the extent caused by the negligent acts or intentional tortuous acts, errors, or omissions of CONSULTANT, or those for whom CONSULTANT is legally responsible. However, if any information or data prepared or provided by CONSULTANT is misused by an agent of CITY, CONSULTANT shall not be responsible for that misuse of data. 3.2 Insurance Not less than one day prior to commencing performance under this Agreement, CONSULTANT shall submit to CITY certificates evidencing compliance with the following minimum insurance requirements, which compliance shall be maintained during the term of this Agreement: (a) General liability insurance protecting CONSULTANT in an amount not less than $100,000 per occurrence, and $300,000 in the aggregate,for bodily injury, personal injury, and property damage, and automobile liability insurance protecting CONSULTANT in the minimum amount required by state law. CONSULTANT will maintain in full force and effect during the term of this Agreement professional errors and omissions insurance in an amount not less than $100,000 per claim, and in the aggregate. CONSULTANT's policies of insurance shall: (i) Be issued by an insurance company that is admitted to conduct business in the State of California and that is rated in Best's Insurance Guide with a rating of A:VII or better. Page 3 of 9 R6876-0001\1 349852v1.doc (ii) Name and list as additional insureds CITY and its officers, agents, and employees. (iii) Be primary to any other similar insurance. Each insurance policy shall contain a provision that prohibits cancellation,without thirty(30) days prior written notice to CITY. The insurance certificates evidencing the required insurance, and endorsements naming CITY, its officers, employees, and agents as additional insureds, shall be submitted to CITY, and CITY has the right to approve or disapprove any insurance procured by CONSULTANT under this Section. Procurement of insurance by CONSULTANT shall not be construed as a limitation of CONSULTANT's liability or as full performance of CONSULTANT's duties to indemnify, hold harmless, and defend under this Agreement. (iv) Indemnify CITY against liability from loss, damage, or injury to persons or to property arising from CONSULTANT's negligent acts in connection with the performance of services under this Agreement. (v) (e) Include a severability of interest clause substantially similar to the following: "The insurance afforded by this policy applies separately to each insured against whom a claim or suit is made or brought, except with respect to the limit of the insurer's liability." (vi) Contain a clause substantially in the following words:."It is hereby understood and agreed that this policy shall not be canceled or materially changed except upon 30 days prior written notice to CITY of such cancellation." (vii) Cover the services of CONSULTANT to be provided under the terms of this Agreement. (viii) Be acceptable to the City Attorney. (b) CONSULTANT's failure to comply with the insurance requirements of this Section shall be a material breach of this Agreement. (c) CONSULTANT shall not commence the performance of its services under this Agreement until the required insurance has been obtained and appropriate certificates of insurance have been filed with CITY. CONSULTANT agrees that provisions substantially similar to those set forth in this Section will be included in any subcontract executed by CONSULTANT. ARTICLE 4 TERMINATION 4.1 Termination of Agreement (a) This Agreement may be terminated at any time,with or without cause, by the CITY upon five (5) days prior written notice or by CONSULTANT upon thirty (30) days prior written notice. Notice shall be deemed served if completed in compliance with Section 6.15. (b) In the event of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT, CONSULTANT shall be paid compensation for all services performed by CONSULTANT, in Page 4 of 9 R6876-0001\1349852v1.doc an amount to be determined as follows: for work satisfactorily done in accordance with all of the terms and provisions of this Agreement, CONSULTANT shall be paid an amount equal to the percentage of services performed prior to the effective date of termination or cancellation in accordance with the work items; provided, in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed the amount which would have been paid to CONSULTANT for the full performance of the services described in this Agreement. ARTICLE 5 DOCUMENTS 5.1 Ownership All documents, information, data, exhibits, plans, specifications, reports, photographs, images, video files and media created or developed by CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the property of the CITY without restriction or limitation upon its use, duplication or dissemination by the CITY. All Written Products shall be considered "works made for hire,"and all Written Products and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of the CITY without restriction or limitation upon their use, duplication or dissemination by the CITY. CONSULTANT shall not obtain or attempt to obtain copyright protection as to any Written Products. CONSULTANT hereby assigns to the CITY all ownership and any and all intellectual property rights to the Written Products that are not otherwise vested in the CITY pursuant to the paragraph directly above this one. Upon termination, abandonment or suspension of the Project, the CONSULTANT shall deliver to the CITY all Written Products and other deliverables related to the Project without additional cost or expense to the CITY. If CONSULTANT prepares a document on a computer, CONSULTANT shall provide CITY with said document both in a printed format and in an electronic format that is acceptable to the CITY. 5.2 Confidentiality All Written Products are confidential until released by CITY to the public. CONSULTANT agrees that Written Products shall not be made available to any third party without the prior written consent of CITY. ARTICLE 6 GENERAL PROVISIONS 6.1 Representation The CITY's representative shall be the Director of Community Development or his or her designee, and the CONSULTANT's representative shall be Mr. David Hayes. Page 5 of 9 R6876-0001\1349852v1.doc These individuals shall be the primary contact persons for the parties regarding performance of this Agreement. 6.2 Fair Employment Practices/Equal Opportunity Acts In the performance of this Agreement, CONSULTANT shall comply with all applicable provisions of the California Fair Employment Practices Act(California Government Code Sections 12940-48) and the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act of 1992 (42 U.S.C. § 11200, et seq.). 6.3 Personnel Mr. David Hayes shall be the designated representative providing services to CITY, and this designated representative shall not be replaced without the CITY's prior written consent. 6.4 CONSULTANT's Representations CONSULTANT represents, covenants and agrees that: a) CONSULTANT is licensed, qualified, and capable of furnishing the labor, materials, and expertise necessary to perform the services in accordance with the terms and conditions set forth in this Agreement; b)there are no obligations, commitments, or impediments of any kind that will limit or prevent CONSULTANT's full performance under this Agreement; c) to the extent required by the standard of practice, CONSULTANT has investigated and considered the scope of services performed, has carefully considered how the services should be performed, and understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. 6.5 Business License Required CONSULTANT shall obtain and maintain a CITY business license prior to commencing the services specified in this Agreement. 6.6 Conflicts of Interest CONSULTANT agrees not to accept any employment or representation during the term of this Agreement or within twelve (12) months after completion of the work under this Agreement which is or may likely make CONSULTANT "financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement. 6.7 Legal Action (a) Should either party to this Agreement bring legal action against the other, Page 6 of 9 R6876-0001\1349852v1.doc the validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, excluding California's choice of law rules. Venue for any such action relating to this Agreement shall be in the Los Angeles County Superior Court. (b) If any legal action or other proceeding, including action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees, and other costs, in addition to any other relief to which the party may be entitled. (c) Should any legal action about a project between CITY and a party other than CONSULTANT require the testimony of CONSULTANT when there is no allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for its testimony and preparation to testify at the hourly rates in effect at the time of such testimony. 6.8 Assignment Neither this Agreement nor any part thereof shall be assigned by CONSULTANT without the prior written consent of the CITY. Any such purported assignment without written consent shall be null and void, and CONSULTANT shall hold harmless, defend and indemnify the CITY and its officers, officials, employees, agents and representatives with respect to any claim, demand or action arising from any unauthorized assignment. Notwithstanding the above, CONSULTANT may use the services of persons and entities not in CONSULTANT's direct employ, when it is appropriate and customary to do so. Such persons and entities include, but are not necessarily limited to, surveyors, specialized consultants, and testing laboratories. CONSULTANT's use of subcontractors for additional services shall not be unreasonably restricted by the CITY provided CONSULTANT notifies the CITY in advance. 6.9 Independent Contractor CONSULTANT is and shall at all times remain, as to the CITY, a wholly independent contractor. Neither the CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein set forth, and CONSULTANT is free to dispose of all portions of its time and activities which it is not obligated to devote to the CITY in such a manner and to such persons, firms, or corporations as the CONSULTANT wishes except as expressly provided in this Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability on behalf of the CITY or otherwise act on behalf of the CITY as an agent. CONSULTANT shall not, at any time or in any manner, represent that it or any of its agents, servants or employees, are in any manner agents, servants or employees of CITY. CONSULTANT agrees to pay all required taxes on amounts paid to CONSULTANT under this Agreement, and to indemnify and hold the CITY harmless from any and all taxes, assessments, penalties, and interest asserted against the CITY by reason of the independent contractor relationship created by this Page 7 of 9 R6876-0001\1349852v1.doc 411 Agreement. CONSULTANT shall fully comply with the workers' compensation law regarding CONSULTANT and its employees. CONSULTANT further agrees to indemnify and hold the CITY harmless from any failure of CONSULTANT to comply with applicable workers' compensation laws. The CITY shall have the right to offset against the amount of any fees due to CONSULTANT under this Agreement any amount due to the CITY from CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or indemnification arising under this Article. 6.10 Titles The titles used in this Agreement are for general reference only and are not part of the Agreement. 6.11 Entire Agreement This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between CITY and CONSULTANT and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended, or provisions or breach may be waived, only by subsequent written agreement signed by both parties. 6.12 Construction In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 6.13 Non-Waiver of Terms, Rights and Remedies Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by the CITY of any payment to CONSULTANT constitute or be construed as a waiver by the CITY of any breach of covenant, or any default which may then exist on the part of CONSULTANT, and the making of any such payment by the CITY shall in no way impair or prejudice any right or remedy available to the CITY with regard to such breach or default. 6.14 Severability If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction,the remaining provisions of this Agreement shall continue in full force and effect. Page 8 of 9 R6876-0001\1349852v1.doc • 6.15 Notice Except as otherwise required by law, any notice or other communication authorized or required by this Agreement shall be in writing and shall be deemed received on (a)the day of delivery if delivered by hand or overnight courier service during Contractor's or City's regular business hours or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses listed below, or at such other address as one party may notify the other: To CITY: Mr. Joel Rojas Director of Community Development City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 To CONSULTANT: Mr. David Hayes Consultant Arborist 1124 N. Lindendale Avenue Fullerton, CA 92831 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: IIA fro, t MR. DAVID HAYES ("CONSULTANT") By: _0404 be(1/1 ''' By: Dated: CI J e (( CITY OF RA • PALOS VERDES ("CITY") OP By: Mayor ATTEST: APPROVED AS TO FORM: By: ,' �- Q- -- By: City Clerk City Attorney Page 9 of 9 R6876-0001\1349852v1.doc