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Wildlife Services (2015) CITY OF RANCHO PALOS VERDES PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into this 18th day of February, 2015, by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY") and Wildlife Services (hereafter referred to as "VENDOR"). ARTICLE 1 SCOPE OF SERVICES 1.1 Description of Services VENDOR shall perform professional services for the City by preparing a Peafowl Management Plan encompassing the following scope of work: (a) Peafowl Trapping — VENDOR shall conduct peafowl trapping in the following five neighborhoods: Portuguese Bend, Vista Grande, Crestridge, Sunnyside, and Monte Verde; subject to the following criteria: • Trap up to 150 birds • Perform trapping between August 1, 2015 and April 1, 2016 • Relocate each bird to a City-approved location • Photo document and report each trapped bird to the City within 24 hours of its removal from the City • Monitor the cages used for trapping per State of California Department of Fish and Wildlife, Fish and Game Code 4004(d) • Methods used to trap and relocate peafowl must be conducted humanely (b) Peafowl Management Plan — VENDOR shall assist the City in the preparation of a Peafowl Management Plan that shall include the following components: • Describe deterrent measures that private citizens can implement to minimize peafowl activity on their private property. (i.e. tree trimming, lighting, water, etc.), • Describe public awareness opportunities, • Provide educational materials (i.e. reference resources), and • Describe alternative methods, aside from trapping, to reduce peafowl population (i.e. birth control). (c) When requested, VENDOR shall attend and participate in City meetings with CITY staff, as well as City Council meetings, which are necessary for the development and implementation of the Peafowl Management Plan. Additionally, when requested, VENDOR may be asked to perform services aside from trapping, such as removing nests. VENDOR shall be compensated by CITY for any meeting or non- trapping related service that is requested by CITY at the rate of$65 per hour. (d) All final reports, information, data and exhibits prepared or assembled by VENDOR in connection with the performance of its services pursuant to this Agreement are confidential until released by CITY to the public, and VENDOR agrees that they shall not be made available to any individual or organization without prior written consent of the CITY prior to such release. All such reports, information, data and exhibits shall be delivered to CITY upon demand without additional cost or expense to CITY. All charts, tables, figures, and maps, which are prepared with computer-based mapping or spreadsheet programs, shall be provided to CITY in a format that is acceptable to CITY. (e) This agreement and the scope of work to be performed by VENDOR may only be amended in a written document executed by both of the parties to this agreement. 1.2 Schedule of Work Upon receipt of a written Notice to Proceed from the CITY, VENDOR shall perform with due diligence the services requested by the CITY. Time is of the essence in this Agreement. VENDOR shall not be responsible for delay, nor shall VENDOR 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 VENDOR's work promptly, or delay by CITY, or any other delays beyond VENDOR's control or without VENDOR's fault. ARTICLE 2 COMPENSATION 2.1 Fee CITY agrees to compensate VENDOR an amount not to exceed thirty-one thousand two hundred fifty dollars ($31,250) for the services described in Article 1. 2.2 Terms of Compensation VENDOR shall submit monthly invoices for the work 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 VENDOR of any disputed invoice amounts within ten (10) days of the receipt of each invoice. However, CITY's failure to timely notify VENDOR of a disputed amount shall not be deemed a waiver of CITY's right to challenge such amount. Additionally, in the event CITY fails to pay any undisputed amounts due VENDOR within forty-five (45) days after invoices are received by CITY, then CITY agrees that VENDOR shall have the right to consider said default a total breach of this Agreement and be terminated by VENDOR without liability to VENDOR upon ten (10) working days advance written notice to CITY. Page 2 of 10 J 2.3 Additional Services CITY may request additional specified work under this Agreement. All such work must be authorized in writing by the CITY's City Manager prior to commencement. VENDOR shall perform such services, and CITY shall pay for such additional services at the rate of$65.00 per hour. 2.4 Term of Agreement This Agreement shall commence on February 18, 2015, and shall terminate on March 31, 2016. ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification To the maximum extent permitted by law, VENDOR shall defend, indemnify, and hold the CITY, its officials, officers, employees, agents and independent contractors serving in the role of CITY officials, and volunteers (collectively "Indemnitees") free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages or injuries, in law or equity, to property or persons, including wrongful death (collectively "Claims"), in any manner arising out of or incident to any acts or omissions of VENDOR, its officers, employees or agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages, attorneys' fees, and other related costs and expenses, except for such Claims arising out of the sole negligence or willful misconduct of the Indemnitees. With respect to any and all such Claims, VENDOR shall defend Indemnitees at VENDOR's own cost, expense, and risk and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. VENDOR shall reimburse Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. VENDOR's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by VENDOR or Indemnitees. All duties of VENDOR under this Section shall survive termination of this Agreement. 3.2 General Liability VENDOR shall at all times during the term of the Agreement carry, maintain, and keep in full force and effect, a policy or policies of Commercial General Liability Insurance, with minimum limits of one million dollars ($1,000,000) for each occurrence and two million dollars ($2,000,000) general aggregate for bodily injury, death, loss or property damage for products or completed operations and any and all other activities undertaken by VENDOR in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted or authorized to do business in the State of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better. Page 3 of 10 3.3 Automobile Liability VENDOR shall at all times during the term of this Agreement obtain, maintain, and keep in full force and effect, a policy or policies of Automobile Liability Insurance, with minimum of one million dollars ($1,000,000) per claim and occurrence and two million dollars ($2,000,000) in the aggregate for bodily injuries or death of one person and five hundred thousand dollars ($500,000) for property damage arising from one incident. Said policy or policies shall be issued by an insurer admitted or authorized to do business in the State of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better. 3.4 Worker's Compensation VENDOR agrees to maintain in force at all times during the performance of work under this Agreement worker's compensation insurance as required by the law. VENDOR shall require any subcontractor similarly to provide such compensation insurance for their respective employees. 3.5 Notice of Cancellation (a) All insurance policies shall provide that the insurance coverage shall not be cancelled or modified by the insurance carrier without thirty (30) days prior written notice to CITY, or ten (10) days notice if cancellation is due to nonpayment of premium. Additionally, VENDOR shall provide immediate notice to the CITY if VENDOR receives a cancellation or policy revision notice from the insurer. (b) VENDOR agrees that it will not cancel or reduce any required insurance coverage. VENDOR agrees that if it does not keep the aforesaid insurance in full force and effect, CITY may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, CITY may take out the necessary insurance and pay, at VENDOR's expense, the premium thereon. 3.6 Certificates of Insurance At all times during the term of this Agreement, VENDOR shall maintain on file with the CITY Clerk certificates of insurance showing that the aforesaid policies are in effect in the required amounts. The commercial general liability policy shall contain endorsements naming the CITY, its officers, agents and employees as additional insureds. 3.7 Primary Coverage The insurance provided by VENDOR shall be primary to any coverage available to CITY. The insurance policies (other than workers compensation) shall include provisions for waiver of subrogation. Page 4 of 10 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 thirty (30) days prior written notice or by VENDOR upon ninety (90) 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 VENDOR or CITY, due to no fault or failure of performance by VENDOR, VENDOR shall be paid compensation for all services performed by VENDOR, in an amount to be determined as follows: for work satisfactorily done in accordance with all of the terms and provisions of this Agreement as determined by the CITY, VENDOR shall be paid for said 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 VENDOR for the full performance of the services described in Section 2.1 of this Agreement. ARTICLE 5 OWNERSHIP OF DOCUMENTS 5.1 Ownership of Documents and Work Product All final documents, plans, specifications, reports, information, data, exhibits, photographs, images, video files and media created or developed by VENDOR 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. VENDOR shall not obtain or attempt to obtain copyright protection as to any Written Products. VENDOR 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. VENDOR warrants and represents that it has secured all necessary licenses, consents or approvals to use any instrumentality, thing or component as to which any intellectual property right exists, including computer software, used in the rendering of the services and the production of all Written Products produced under this Agreement, and that the CITY has full legal title to and the right to reproduce the Written Products. VENDOR shall defend, indemnify and hold the CITY, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as Page 5 of 10 independent contractors in the role of CITY officials, harmless from any loss, claim or liability in any way related to a claim that CITY's use of any of the Written Products is violating federal, state or local laws, or any contractual provisions, or any laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual property rights and/or interests in products or inventions. VENDOR shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the services and Written Products produced under this Agreement. In the event the use of any of the Written Products or other deliverables hereunder by the CITY is held to constitute an infringement and the use of any of the same is enjoined, VENDOR, at its expense, shall: (a) secure for CITY the right to continue using the Written Products and other deliverables by suspension of any injunction, or by procuring a license or licenses for CITY; or (b) modify the Written Products and other deliverables so that they become non-infringing while remaining in compliance with the requirements of this Agreement. This covenant shall survive the termination of this Agreement. Upon termination, abandonment or suspension of the Project, the VENDOR shall deliver to the CITY all Written Products and other deliverables related to the Project without additional cost or expense to the CITY. If VENDOR prepares a document on a computer, VENDOR shall provide CITY with said document both in a printed format and in an electronic format that is acceptable to the CITY. ARTICLE 6 GENERAL PROVISIONS 6.1 Representation The CITY representative shall be the Director of Community Development or his or her designee, and Mike Maxcy shall be VENDOR's designated representative. 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, VENDOR shall comply with all applicable provisions of the California Fair Employment Practices Act (California Government Code Sections 12940-48), 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 1990 (42 U.S.C. § 11200, et seq.). 6.3 Audit The CITY or its representative shall have the option of inspecting, auditing, or inspecting and auditing all records and other written materials used by VENDOR in preparing its billings to the CITY as a condition precedent to any payment to VENDOR. VENDOR will promptly furnish documents requested by the CITY. Page 6 of 10 6.4 Personnel VENDOR represents that it has, or shall secure at its own expense, all personnel required to perform VENDOR's services under this Agreement. Mike Maxcy shall be the principal person who will perform VENDOR'S services under this Agreement. If Mr. Maxcy is unable to perform said services, VENDOR shall advise CITY immediately and shall obtain CITY'S approval before replacing Mr. Maxcy with any other individual. VENDOR may associate with or employ associates or subcontractors in the performance of its services under this Agreement, but at all times shall VENDOR be responsible for its associates and subcontractors' services. 6.5 VENDOR's Representations VENDOR represents, covenants and agrees that: a) VENDOR 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 VENDOR's full performance under this Agreement; and c) to the extent required by the standard of practice, VENDOR 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. 6.6 Conflicts of Interest VENDOR 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 VENDOR "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 VENDOR has been retained pursuant to this Agreement. 6.7 Legal Action (a) Should either party to this Agreement bring legal action against the other, 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 between CITY and a party other than VENDOR require the testimony of VENDOR when there is no allegation that VENDOR Page 7 of 10 . was negligent, CITY shall compensate VENDOR 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 VENDOR without the prior written consent of the CITY. Any such purported assignment without written consent shall be null and void, and VENDOR 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, VENDOR may use the services of persons and entities not in VENDOR's direct employ, when it is appropriate and customary to do so. 6.9 Independent Contractor VENDOR 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 VENDOR or any of the VENDOR's employees, except as herein set forth, and VENDOR 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 VENDOR wishes except as expressly provided in this Agreement. VENDOR 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. VENDOR 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. VENDOR agrees to pay all required taxes on amounts paid to VENDOR 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 Agreement. VENDOR shall fully comply with the workers' compensation law regarding VENDOR and its employees. VENDOR further agrees to indemnify and hold the CITY harmless from any failure of VENDOR to comply with applicable workers' compensation laws. The CITY shall have the right to offset against the amount of any fees due to VENDOR under this Agreement any amount due to the CITY from VENDOR 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 Page 8 of 10 VENDOR 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 VENDOR 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 VENDOR, 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. 6.15 Notice Except as otherwise required by law, any notice, payment 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 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: Responsible Person: Joel Rojas, Director of Community Development City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 Page 9 of 10 To VENDOR: Michael Maxcy Wildlife Services 1760 Wychoff Ave Simi Valley, CA 93063 6.16 Business License Required During the term of this Agreement, VENDOR shall obtain and maintain a City Business License. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. Dated: ("VENDOR") By: Printed Name: Title: By: Printed Name: Title: Dated: CITY OF RANCHO PALOS VERDES ("CITY") By: Mayor ATTEST APPROVED AS TO FORM By: By: Page 10 of 10 Dated: `.2 11 COI aiirc et4/1 C-e S' ("VENDOR") By: Printed Name:" c ltct t- / glaX.C-y Title: OfiA-4-ec /OPrct By: Printed Name: Title: Dated: */‘ CITY OF RANCHO PALOS VERDES ("CITY") By: .U..- a •r ATTEST APPROVED AS TO FORM By: e/ , , // ./ /;