RPVCCA_SR_2011_05_17_14_View_Rest_Mediator_ArboristMEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
REVIEWED:
HONORABLE MAYOR &CITY COUNCIL MEMBERS
JOEL ROJAS,COMMUNITY DEV
MAY 17,2011
CONTRACT RENEWAL FOR VIEW RESTORATION MEDIATOR
AND VIEW RESTORATION ARBORIST PROFESSIONAL
SERVICES /"\{)
CAROLYN LEHR,CITY MANAGER c!y--
Authorize the Mayor and City Clerk to execute an extension of the professional service
agreements with the City's View Restoration Mediator,Ms.Coleen Berg,and the City's View
Restoration Arborist,Mr.David Hayes,to provide mediation and arboriculture services,
respectively,on an as-needed basis to the City for an additional two years until June 30,2013.
BACKGROUND
Implementation of the City's View Restoration and Preservation Ordinance requires the use of
professional consultants to assist Staff in expert and professional consultation during the
neighbor-to-neighbor pre-application mediation phase in addition to the formal permit
processing stage.When requested by the City,expert consultation is carried out by the City's
contract View Restoration Arborist and View Restoration Mediator.For the last several years,
City Staff has worked closely and effectively with Mr.David Hayes (Arborist)and Ms.Coleen
Berg (Mediator)in resolving view restoration cases.Ms.Berg's contract is set to expire on June
30,2011.In addition,Mr.Hayes'contract is set to expire on June 30,2011 as well.As a result,
both Ms.Berg's and Mr.Hayes'contracts need to be renewed at this time.
DISCUSSION
Renew Services Agreement with City Arborist
Since 1998,Mr.Hayes has been providing expert arboriculture consultation to City Staff relating
to all the facets of the City's view restoration process.Specifically,Mr.Hayes provides,upon
request by City Staff,Planning Commission,and/or City Council expert opinion regarding the
vegetation heath impacts when considering trimming for view restoration cases.Mr.Hayes also
provides re-Iandscaping recommendations to the City for those properties affected by view-
impairing tree removal.Mr.Hayes is an independent consulting arborist working on an as-
needed basis with the City's View Restoration Staff.On June 2,2009,the City Council
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approved a professional services agreement with the View Restoration Arborist,Mr.David
Hayes,for professional arboriculture services in an amount not to exceed $2,000 annually for
two (2)years.As this agreement is set to expire on June 30,2011,renewal of the existing
Services Agreement is necessary so that Mr.Hayes may continue to carry out the responsibility
of the City's View Restoration Arborist.The City's costs for Mr.Hayes'services are proposed to
be included in the FY 11-12/12-13 budget and are expected to be $2,000 annually.
Renew Services Agreement with City View Mediator
Since November 2004,the City Council has authorized agreements with Ms.Berg for
professional view mediation services.On June 2,2009,the City Council renewed the existing
contract with the City's View Restoration Mediator,Ms.Coleen Berg,for an amount not to
exceed $40,000 annually for an additional two (2)years.This contract is due to expire on June
30,2011.It appears that the average number of hours per case has remained about the same
or increased slightly due to an increased number of properties involved with each case since the
previous contract was renewed.Staff expects the average number of cases per year to remain
at 12 cases.In addition,during the fiscal years 09-10 and 10-11,Ms.Berg's mediation success
rate (preventing the case from reaching the formal permit processing stage)has been 94%
percent.Thus,it appears that the current contract amount of $40,000 annually for an additional
two (2)years can be renewed.The City costs for these mediation services are proposed to be
included in the FY 11-12/12-13 budget.
CONCLUSION
At this time,Staff is requesting that the City Council continue to use the professional services of
the current City Arborist,Mr.David Hayes,by renewing the professional services agreement for
a 2-year period to June 30,2013,for an amount not to exceed $2,000 annually.In addition,
Staff is requesting that the City Council renew the City's View mediator contract for an additional
2-year period to June 30,2013,with an annual monetary cap of $40,000 per year.
FISCAL IMPACT
Approval of the renewed services contracts with Mr.Hayes and Ms.Berg will not require a
budget adjustment as the costs are proposed to be included in the FY 11-12/12-13 View
Restoration Division's budget.The costs for these services will come from the General Fund
and are not funded by any application fees.
ALTERNATIVES
The following are alternatives to Staff's recommended action:
1)Request Staff to solicit additional bids for professional arboriculture or mediation
services or;
2)Identify any issues of concern that may require further study and direct Staff to provide
additional information at a subsequent meeting.
Attachments
EXHIBIT A -Professional Arboriculture Services contract
EXHIBIT B -Professional Mediator Services contract
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Professionall Technical Services Agreement for
View Restoration Arborist Consulting Services
between
The City of RANCHO PALOS VERDES
&
Mr.David Hayes
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THIS AGREEMENT ("Agreement")is made and entered into this 1i h 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,
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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 _
($)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.
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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.
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(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
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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 otherdeliverables 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.
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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 offurnishing 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
CONSU LTANT 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,
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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 CONSULTANTwhen 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
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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 anyone 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.
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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 ofthe
date and year first above written.
Dated:_
Dated:_
ATTEST:
By:_
City Clerk
R6876-000 1\1349852v 1.doc
MR.DAVID HAYES
("CONSULTANT")
By:_
By:_
CITY OF RANCHO PALOS VERDES
("CITY")
By:_
Mayor
APPROVED AS TO FORM:
By:_
City Attorney
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Professionall Technical Services Agreement for
Mediation Consulting Services
between
The City of RANCHO PALOS VERDES
&
Ms.Coleen Berg
14-13
THIS AGREEMENT ("Agreement")is made and entered into this 1th day of May,
2011 by and between the City of Rancho Palos Verdes (hereinafter referred to as the
"CITY")and Ms.Coleen Berg (hereafter referred to as "CONSULTANT").
RECITALS
WHEREAS,CITY desires to engage a consultant in the field of dispute resolution to
provide professional mediation services as described in this Agreement;and
WHEREAS,CITY's Local View Restoration Guidelines and Procedures require early
neighbor consultation meetings prior to the acceptance of any View Restoration Application
Permit,as specified further in the Rancho Palos Verdes Municipal Code;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 Preservation and Restoration Mediation Consulting Services.
1.2 Description of Services
Subject to the terms and conditions set forth in this Agreement,CONSULTANT
shall provide professional mediation services in connection with the administration of CITY's
View Preservation and Restoration Ordinance.The professional mediation 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 and participate in
pre-application meetings with potential applicants and affected neighbors pursuant to the
procedures outlined in the Local View Restoration Guidelines and Procedures.
(b)When requested,CONSULTANT shall provide CITY with:private
agreements and any related photographs regarding mediation services;and written reports or
statements explaining why a particular mediation meeting failed.
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1.3 Schedule of Work
Upon request by the CITY,CONSULTANT shall perform with due diligence and
in reasonable time the services requested by the CITY.Time is of the essence in this
Agreement.
ARTICLE 2
COMPENSATION
2.1 Fee
CITY agrees to compensate CONSULTANT at a fixed rate of one hundred and
twenty five dollars ($125)per hour ("Hourly Rate"),which includes all labor and costs,and in
any case an amount not to exceed forty thousand dollars ($40,000)annually for the services
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:
Ms.Coleen Berg
Choice Mediation
4703 Merrill Street
Torrance,CA 90503
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 orwithin ten (10)days ofthe
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.
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 CONSULTANTwithout liability to CONSULTANT upon ten
(10)working days advance written notice to CITY.
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
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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.
(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 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
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CITY,and CITY has the right to approve or disapprove any insurance procured by
CONSULTANT under the standards of 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)Include a severability of interest clause substantially similarto 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
an amount to be determined as follows:for work satisfactorily done in accordance with all of
the terms and provisions ofthis 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
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paid to CONSULTANT for the full performance of the services described in this Agreement.
ARTICLE 5
CONFIDENTIALITY OF DOCUMENTS
5.1 Confidentiality
All documents,information,emails,data,exhibits,plans,reports,photographs,
images,video files and media created or developed by CONSULTANT pursuant to this
Agreement ("Written Products")are confidential.CONSULTANT agrees that all Written
Products shall not be made available to any third party.
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 Ms.Coleen Berg.
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
Ms.Coleen Berg 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
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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,
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
Neitherthis 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,
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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
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.
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 ofthis 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.
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6.13 Non-Waiver of Terms,Rights and Remedies
Waiver by either party of anyone 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 ofthis Agreement
shall continue in full force and effect.
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:
Ms.Coleen Berg,Mediator
Choice Mediation
4703 Merrill Street
Torrance,CA 90503
[Signatures on next page.]
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of
the date and year first above written.
Dated:_
Dated:_
ATTEST:
By:_
City Clerk
R6876-0001\1349861v3.doc
MS.COLEEN BERG
("CONSULTANT")
By:_
By:_
CITY OF RANCHO PALOS VERDES
("CITY")
By:_
Mayor
APPROVED AS TO FORM:
By:_
City Attorney
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