HomeMy WebLinkAboutLive Oak Associates, Inc. (7)CONSULTING SERVICES AGREEMENT BETWEEN
THE TOWN OF LOS ALTOS HILLS AND
LIVE OAK ASSOCIATES, INC,
THIS AGREEMENT for consulting services is made by and between the Town of Los Altos Hills
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n") ano-Live Oak Associates, Inc ("Consultant") (together referred to as the "parties") as of
2010 (the "Effective Date").
.Section 1, SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant
shall provide to Town the services described in the Scope of Work attached as Exhibit A , and incorporated
hereln, at the time and place and in the manner specified therein. In the event of a conflict in or
inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall
end on December 31, 2010, and Consultant shall complete the work described in Exhibit A
on or before that date, unless the term of the Agreement is otherwise terminated or
extended, as provided for in Section 8. The time provided to Consultant to complete the
services required by this Agreement shall not affect the Town's right to terminate the
Agreement, as referenced in Section 8.
1,2 Standard of Performance. Consultant shall perform all services required pursuant to this
Agreement according to the standards observed by a competent practitioner of the
profession in which Consultant is engaged
1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that Town, in its sole discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons,
Consultant shall, immediately upon receiving notice from Town of such desire of Town,
reassign such person or persons.
1.4 Time. Consultant shall devote such time to the performance of services pursuant to this
Agreement afs may be reasonably necessary to meet'the standard of performance
provided in Section 1,1 above and to satisfy Consultant's obligations hereunder.
1.5 Public Works .Requirements. Because the services described in Exhibit A include "work
performed during the design and preconstruction phases of construction including, but not
limited to, inspection and land surveying work," the services constitute a public works
within the definition of Section 1720(a)(1) of the California Labor Code As a result,
Consultant is required to comply with the provisions of the Labor Code applicable to public
works, to the extent set forth in Exhibit C. Consultant shall waive, indemnify, hold
harmless, and defend Town concerning any liability arising out of Labor Code Section
1720 et seq.
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Section 2, COMPENSATION, Town hereby agrees to pay Consultant a sum not to exceed
$16,641.00, notwithstanding any contrary indications that may be contained in Consultant's proposal, for
services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict
between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of
compensation, the Agreement shall prevail. Town shall pay Consultant for services rendered pursuant to
this Agreement at the time and in the manner set forth herein. The payments specified below shall be the
only payments from Town to Consultant for services rendered pursuant to this Agreement. Consultant shall
submit all invoices to Town in the manner specified herein Except as specifically authorized by Town in
writing, Consultant shall not bill Town for duplicate services performed by more than one person.
Consultant and Town acknowledge and agree that compensation paid by Town to Consultant under this
Agreement is based upon Consultant's estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. Town
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the
term of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date. Invoices shall contain the following information
• Serial identifications of progress bills; i e , Progress Bill No 1 for the first invoice,
etc.;
• The beginning and ending dates of the billing period;
® A Task Summary containing the original contract amount, the amount of prior
billings, the total due this period, the balance available under the Agreement, and
the percentage of completion;
• At Town's option, for each work item in each task, a copy of the applicable time
entries or time sheets shall be submitted showing the name of the person doing
the work, the hours spent by each person, a brief description of the work, and
each reimbursable expense;
The total number of hours of work performed under the Agreement by Consultant
and each employee, agent, and subcontractor of Consultant performing services
hereunder;
The Consultant's signature;
Consultant shall give separate notice to the Town when the total number of hours
worked by Consultant and any individual employee, agent, or subcontractor of
Consultant reaches or exceeds 800 hours within a 12 -month period under this
Agreement and any other agreement between Consultant and Town. Such notice
shall include an estimate of the time necessary to complete work described in
Exhibit A and the estimate of time necessary to complete work under any other
agreement between Consultant and Town, if applicable
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2,2 Monthly Payment. Town shall make monthly payments, based on invoices received, for
services satisfactorily performed, and for authorized reimbursable costs incurred. Town
shall have 30 days from the receipt of an invoice that complies with all of the requirements
above to pay Consultant.
2.3 Final Payment. Town shall pay the last t0% of the total sum due pursuant to this
Agreement within 60 days after completion of the services and submittal to Town of a final
invoice, if all services required have been satisfactorily performed.
2.4 Total Payment, Town shall pay for the services to be rendered by Consultant pursuant to
this Agreement. Town shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering services pursuant to this Agreement.
Town shall make no payment for any extra, further, or additional service pursuant to this
Agreement,
in no event shall Consultant submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a properly
executed change order or amendment.
2.5 Hourly Fees, Fees for work performed by Consultant on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto as Exhibit B.
2,6 Reimbursable Expenses. Reimbursable expenses are included in the total amount of
compensation provided under this Agreement that shall not be exceeded_.
2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes
2.6 Payment upon Termination. In the event that the Town or Consultant terminates this
Agreement pursuant to Section 8, the Town shall compensate the Consultant for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Consultant shall maintain adequate logs and
timesheets to verify costs incurred to that date,
2.9 Authorization to Perform Services, The Consultant is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
Section 3, FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole
cost and expense, provide all facilities and equipment that may be necessary to perform the services
required by this Agreement.
Section 4, INSURANCE REQUIREMENTS. Before beginning any work under this Agreement,
Consultant, at its own cost and expense, unless otherwise specified below, shall procure the types and
amounts of insurance listed below against claims for injuries to persons or damages to property that may
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arise from or in connection with the performance of the work hereunder by the Consultant and its agents,
representatives, employees, and subcontractors. Consistent with the following provisions, Consultant shall
provide proof satisfactory to Town of such insurance that meets the requirements of this section and under
forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work to
the Town. Consultant shall maintain the insurance policies required by this section throughout the term of
this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not
allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance
required herein for the subcontractor(s) and provided evidence that such insurance is in effect to Town:
Verification of the required insurance shall be submitted and made part of this Agreement prior to
execution. Consultant shall maintain all required insurance listed herein for the duration of this Agreement.
4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain
Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any
and all persons employed directly or indirectly by Consultant. The Statutory Workers'
Compensation Insurance and Employer's Liability Insurance shall be provided with limits of
not less than $1,000,000 per accident. In the alternative, Consultant may rely on a self-
insurance program to meet those requirements, but only if the program of self-insurance
complies fully with the provisions of the California Labor Code. Determination of whether a
self-insurance program meets the standards of the Labor Code shall be solely in the
discretion of the Contract Administrator. The insurer, if insurance is provided, or the
Consultant, if a program of self-insurance is provided, shall waive all rights of subrogation
against the Town and its officers, officials, employees, and volunteers for loss arising from
work performed under this Agreement
4.2 Commercial General and Automobile Liability Insurance.
4,2.1 General requirements. Consultant, at its own cost and expense, shall maintain
commercial general and automobile liability insurance for the term of this
Agreement in an amount not less than $1,000,000 per occurrence, combined
single limit.coverage for risks associated with the work contemplated by this
_Agreement. if a Commercial General Liability Insurance or an Automobile Liability
form or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed under this
Agreement or the general aggregate limit shall be at least twice the required
occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting
therefrom, and damage to property resulting from activities contemplated under
this Agreement, including the use of owned and non -owned automobiles.
422 Minimum scope of coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (most recent edition) covering comprehensive General Liability on an
'occurrence" basis. Automobile coverage shall be at least as broad as Insurance
Services Office Automobile Liability form CA 0001 (most recent edition), Code 1
(any auto). No endorsement shall be attached limiting the coverage.
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4,2.3 Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The Insurance shall cover on an occurrence or an occurrence basis, and
not on a claims -made basis.
Town, its officers, officials, employees, and volunteers are to be covered
as insureds as respects. liability arising out of work or operations
performed by or on behalf of the Consultant; or automobiles owned,
leased, hired, or borrowed by the Consultant
C, For any claims related to this Agreement or the work hereunder, the
Consultant's insurance covered shall be primary insurance as respects
the Town, its officers, officials, employees, and volunteers. Any insurance
or self-insurance maintained by the Town, its officers, officials, employees,
or volunteers shall be excess of the Consultant's insurance and shall not
contribute with it.
Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be canceled by either party, except after 30 days'
prior written notice has been provided to the Town
4.3 Professional Liability Insurance,
4.3.1 General requirements. Consultant, at its own cost and expense, shall maintain
for the period covered by this Agreement professional liability insurance for
licensed professionals performing work pursuant to this Agreement in an amount
not less than $1,000,000 covering the licensed professionals' errors and
omissions Any deductible or self-insured retention shall not exceed $150,000 per
claim.
4.12 Claims•made_limitations. The following provisions shall apply if the professional
liability coverage is written on a claims -made form:
The retroactive date of the policy must be shown and must be before the
date of the Agreement.
Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement or the
work, so long as commercially available at reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with another
cialms-made policy form with a retroactive date that precedes the date of
this Agreement, Consultant must purchase an extended period coverage
for a minimum of five years after completion of work under this
Agreement.
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d. A copy of the claim reporting requirements must be submitted to the Town
for review prior to the commencement of any work under this Agreement.
4.4 All Policies Requirements,
4.4.1 Acceptability of insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VI1.
4.42 Verification of coverage. Prior to beginning any work under this Agreement,
Consultant shall furnish Town with complete copies of all policies delivered to
Consultant by the insurer, including complete copies of all endorsements attached
to those policies. All copies of policies and endorsements shall show the signature
of a person authorized by that insurer to bind coverage on its behalf_ If the Town
does not receive the required Insurance documents prior to the Consultant
beginning work, it shall not waive the Consultant's obligation to provide them. The
Town reserves the right to require complete copies of all required insurance
policies at any time.
4.4.3 Deductibles and Self•lnsured Retentions. Consultant shall disclose to and
obtain the written approval of Town for the self-insured retentions and deductibles
before beginning any of the services or work called for by any term of this
Agreement. At the option of the Town, either: the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects the Town, its officers,
employees, and volunteers; or the Consultant shall provide a financial guarantee
satisfactory to the Town guaranteeing payment of losses and related
investigations, claim administration and defense expenses
4,4.4 Wasting Policies. No policy required by this Section 4 shall include a "wasting"
policy limit (Le, limit that is eroded by the cost of defense).
4.4.5 Waiver of Subrogation, Consultant.hereby agrees to waive subrogation which
any insurer or contractor may require from vendor by virtue of the payment of any
loss. Consultant agrees to obtain any endorsements that may be necessary to
affect this waiver of subrogation.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation
in favor of the entity for all work performed by the consultant, its employees,
agents, and subcontractors.
4.4.5 Subcontractors. Consultant shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
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4.5 Remedies, In addition to any other remedies Town may have if Consultant fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time
herein required, Town may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies Town may have and are not the exclusive remedy for
Consultant's breach:
Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
Order Consultant to stop work under this Agreement or withhold any payment that
becomes due to Consultant hereunder, or both stop work and withhold any payment,
until Consultant demonstrates compliance with the requirements hereof, and/or
0 Terminate this Agreement.
Section 5, INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES.
Consultant shall indemnify, defend with counsel acceptable to Town, and hold harmless Town and its
officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage,
claims, expenses, and costs (including without limitation, attorney's fees and costs and fees of litigation)
(collectively, "Liability") of every nature arising out of or in connection with Consultant's performance of the
Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability
caused by the sole negligence or willful misconduct of Town
The Consultant's obligation to defend and indemnify shall not be excused because of the Consultant's
inability to evaluate Liability or because the Consultant evaluates Liability and determines that the
Consultant is not liable to the claimant. The Consultant must respond within 30 days, to the tender of any
claim for defense and indemnity by the Town, unless this time has been extended by the Town_ If the
Consultant falls to accept or reject a tender of defense and indemnity within 30 days, in addition to any
other remedy authorized by law, so much of the money due the Consultant under and by virtue of this
Agreement as shall reasonably be considered necessary by the Town, may be retained by the Town until
disposition has been made of the claim or suit for damages, or until the Consultant accepts or rejects the
tender of defense, whichever occurs first
With respect to third party claims against the Consultant, the Consultant waives any and all rights of any
type to express or implied indemnity against the Indemnitees
Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by
California Civil Code Section 2782, as may be amended from time to time, such duties of consultant to
indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782,
In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment In PERS as an employee of Town, Consultant shall
indemnify, defend, and hold harmless Town for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well
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as for the payment of any penalties and interest on such contributions, which would otherwise be the
responsibility of Town..
Section 6, STATUS OF CONSULTANT.
6.1 Independent Contractor, At all times during the term of this Agreement, Consultant shall
be an Independent contractor and shall not be an employee of Town Town shall have the
right to control Consultant only insofar as the results of Consultant's services rendered
pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3,
however, otherwise Town shall not have the right to control the means by which
Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding
any other Town, state, or federal policy, rule, regulation, law, or ordinance to the contrary,
Consultant and any of its employees, agents, and"subcontractors providing services under
this Agreement shall not qualify for or become entitled to, and hereby agree to waive any
and all claims to, any compensation, benefit, or any incident of employment by Town,
including but not limited to eligibility to enroll in the California Public Employees Retirement
System (PERS) as an employee of Town and entitlement to any contribution to be paid by
Town for employer contributions and/or employee contributions for PERS benefits.
6,2 Consultant Not an Agent, Except as Town may specify in writing, Consultant shall have
no authority, express or implied, to act on behalf of Town in any capaTown whatsoever as
an agent. Consultant shall have no authority, express or implied, pursuant to this
Agreement to bind Town to any obligation whatsoever
Section 7, LEGAL REQUIREMENTS.
7,1 Governing Law. The laws of the State of California shall govern this Agreement
7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations, To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, Consultant and any subcontractors
shall comply with all applicable rules and regulations to which Town is bound by the terms
of such fiscal assistance program.
7.4 Licenses and Permits. Consultant represents and warrants to Town that Consultant and
its employees, agents, and any subcontractors have all licenses, permits, qualifications,
and approvals of whatsoever nature that are legally required to practice their respective
professions. Consultant represents and warrants to Town that Consultant and its
employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals that are
legally required to practice their respective professions. in addition to the foregoing,
Consultant and any subcontractors shall obtain and maintain during the term of this
Agreement valid Business Licenses from Town.
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7,5 Nondiscrimination and Equal Opportunity., Consultant shall not discriminate, on the
basis of a person's race, religion, color, national origin, age, physical or mental handicap or
disability, medical condition, marital status, sex, or sexual orientation, against any
employee, applicant for employment, subcontractor, bidder for a subcontract, or participant
in, recipient of, or applicant for any services or programs provided by Consultant under this
Agreement. Consultant shall comply with all applicable federal, state, and local laws,
policies, rules, and requirements related to equal opportunity and nondiscrimination in
employment, contracting, and the provision of any services that are the subject of this
Agreement, including but not limited to the satisfaction of any positive obligations required
of Consultant thereby.
Consultant shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement
Section B. TERMINATION AND MODIFICATION.
8.1 Termination, Town may cancel this Agreement at any time and without cause upon
written notification to Consultant.
Consultant may cancel this Agreement upon 30 days' written notice to Town and shall
include in such notice the reasons for cancellation.
In the event of termination, Consultant shall be entitled to compensation for services
performed to the effective date of termination; Town, however, may condition payment of
such compensation upon Consultant delivering to Town any or all documents,
photographs, computer software, video and audio tapes, and other materials provided to
Consultant or prepared by or for Consultant or the Town in connection with. this
Agreement.
8.2 Extension. Town may, in Its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1,1. Any such extension shall require a
written amendment to this Agreement, as provided for herein, Consultant understands and
agrees that, if Town grants such an extension, Town shall have no obligation to provide
Consultant with compensation beyond the maximum amount provided for In this
Agreement Similarly, unless authorized by the Contract Administrator, Town shall have
no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred
during the extension period
8,3 Amendments, The parties may amend this Agreement only by a writing signed by all the
parties.
8.4 Assignment and Subcontracting,, Town and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a
determination of Consultant's unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to Town for entering into this
Agreement was and is the professional reputation and competence of Consultant.
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Consultant may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator. Consultant shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the subcontractors noted
in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between Town and Consultant shall survive
the termination of this Agreement.
8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms
of this Agreement, Town's remedies shall included, but not be limited to, the following:
8.6.1 Immediately terminate the Agreement;
8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by Consultant pursuant to this Agreement,
8.6.3 Retain a different consultant to complete the work described in _Exhibit A not
finished by Consultant; or
8.6.4 Charge Consultant the difference between the cost to complete the work
described in Exhibit A that is unfinished at the time of breach and the amount that
Town would have paid Consultant pursuant to _Section 2 if Consultant had
completed the work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Consultant's Performance. All reports, data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications,
records, files, or any other documents or materials, in electronic or any other form, that
Consultant prepares or obtains pursuant to this Agreement and that relate to the matters
covered hereunder shall be the property of the Town. Consultant hereby agrees to deliver
those documents to the Town upon termination of the Agreement. It is understood and
agreed that the documents and other materials, including but not limited to those described
above, prepared pursuant to this Agreement are prepared specifically for the Town and are
not necessarily suitable for any future or other use. Town and Consultant agree that, until
final approval by Town, all data, plans, specifications, reports and other documents are
confidential and will not be released to third parties without prior written consent of both
parties.
9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the Town under this Agreement for a minimum of 3 years, or for any longer period
required by law, from the date of final payment to the Consultant to this Agreement.
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9.3 Inspection and Audit of Records. Any records or documents that Section 9,2 of this
Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of
the Town. Under California Government Code Section 8546.7, if the amount of public
funds expended under this Agreement exceeds $10,000.00, the Agreement shall be
subject to the examination and audit of the State Auditor, at the request of Town or as part
of any audit of the Town, for a period of 3 years after final payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorney' Fees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose,
10.2 Venue. in the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Monterey or in the United States District Court for
the Northern District of California.
10.3 SeveragWb %y If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written
studies and other printed material on recycled paper to the extent it is available at equal or
less cost than virgin paper
10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within
the corporate limits of Town or whose business, regardless of location, would place
Consultant in a "conflict of interest," as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 et seq.
Consultant shall not employ any Town official in the work performed pursuant to this
Agreement. No officer or employee of Town shall have any financial interest in this
Agreement that would violate California Government Code Sections 1090 of seq
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Consultant hereby warrants that it is not now, nor has it been in the previous 12 months,
an employee, agent, appointee, or official of the Town. If Consultant was an employee,
agent, appointee, or official of the Town in the previous twelve months, Consultant
warrants that it did not participate in any manner in the forming of this Agreement.
Consultant understands that, if this Agreement is made in violation of Government Code
1090 et seq., the entire Agreement is void and Consultant will not be entitled to any
compensation for services performed pursuant to this Agreement, including reimbursement
of expenses, and Consultant will be required to reimburse the Town for any sums paid to
the Consultant. Consultant understands that, in addition to the foregoing, it may be subject
to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will
be disqualified from holding public office in the State of California.
10.8 Solici_�_____�_tation.. Consultant agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials
10.9 Contract Administration. This Agreement. shall be administered by Richard Chlu
("Contract Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
10.10 Notices. Any written notice to Consultant shall be sent to.
Live Oak Associates, Inc.
Attn. Rick A. Hopkins, Ph -D
6840 Via Del Oro, Suite 220
San ,Jose, CA 95119
Any written notice to Town shall be sent to.
Town of Los Altos Hills
Attn. Richard Chiu
26379 Fremont Road
Los Altos Hills, CA 94022
10.11 Professional Seal. Where applicable in the determination of the contract administrator,
the first page of a technical report, first page of design specifications, and each page of
construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the report/design preparation. The stamp/seal shall be in a block entitled
"Seal and Signature of Registered Professional with reporUdesign responsibility," as in the
following example.
Seal and Signature of Registered Professional with
report/design responsibility.
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10,12 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibits A, B, and C represents the entire and integrated
agreement between Town and Consultant and supersedes all prior negotiations,
representations, or agreements, either written or oral.
Exhibit A
Scope of Services
Exhibit 8
Payment Schedule
Exhibit C
Public Works Requirements
10.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be an original and all of which together shall constitute one agreement.
(consulting Services Agreement between (EFFECTIVE CAFE]
Town of Los Altos Hills and Live Oak Associates, Inc. Page 13 of 14
The Parties have executed this Agreement as of the Effective Date.
TOWN OF LOS ALTOS HILLS CONSULTANT
C.,
Carl Cahill, Town Manager C ins, Ph D, Principal
Attest.
Karen Jo t, To Clerk
Approved as to Form:
Steven T. Mattas, Town :Att�
1070873 1
Consulting Services Agreement between [EFFECTIVE DATE]
Town of Los Altos Hills and Live Oak Associates, Inc, Page 14 of 14
EXHIBIT A
SCOPE CP SERVICES
ConSUlting Services Agreement between
Town of Los Altos Hills and Live Oak Associates, Inc
Exhibit A
Page 1 of 1
December 23, 2009
Richard Chiu
Town of'Los Altos Hills
Public Works Department
26379 Fremont Road
Los Altos Hills, CA 94022
an Ecological Consulting Firm
Subject: Scope and budget to provide permitting assistance for maintenance of Barron
Creek in Los Altos Hills, California
Dear Richard:
At your request, Live Oak Associates, Inc. (LOA), has prepared this scope and budget to provide
pennitting assistance for an approximately 500 -linear -foot reach of Barron Creek in the Town of
Los Altos Hills, Santa Clara County, California. As we understand it, the Town of Los Altos
Hills will be performing vegetation management in this reach of Barron Creels. The Town is
also interested in establishing a multi-year stream maintenance program for this reach of the
creek.
LOA proposes to approach the project in two phases, The first phase will define the scope of the
project and develop a permitting strategy. The second phase of work would commence once the
project scope has been defined and an appropriate permitting strategy been developed and
approved by the Town, This second phase would consist of preparing and submitting permit
applications to the appropriate regulatory agencies. LOA proposes to complete both project
phases for a time -and -materials cost not to exceed $16,541; However, there is some measure of
uncertainty related to Phase 2 as the actual permitting strategy cannot be precisely known at the
present time (see discussion below)„
Following is a detailed discussion of the proposed tasks.
Phase 1: Defining the Project Scone
Task 1, Background Review.
LOA will review background information, including any CEQA documents prepared for the
project site and any project plans. LOA will also review available data and reports for the Los
Altos Hills region to ensure that all potential issues relating to biotic resources are identified
prior to conducting fieldwork or preparing a report of findings. Sources of information relevant
San Jose; 6840 Via del Oro, Suite 220 . San Jose, CA 95119 • Phone: (4 08) 224.8306. Fax: (408) 2 24 -14 11
Oakhurst: P 0 Box 2697. 39930 Sierra Way, Suite B . Oakhurst, CA 93644 . Phone: (559) 64.2-4880 . Fax: (559) 642-4883
Bakersfield: 8200 Stockdale. Highway, M10.293 . Bakersfield, CA 93311
to tine project vicinity will include aerial photographs of the project site, USGS topographic
maps, U.S. Fish and Wildlife Service National Wetland inventory Maps, the California Natural
Diversity Database, other technical literature related to the biotic resources of the project
vicinity, regional planning documents (e.g., general plan policies), species data compiled by tine
California Native Plant Society, the National Audubon Society, or other public interest groups,
and resource agency data (e..g., U.S. Fish and Wildlife Service, California Department of'Fish
and Game, etc•).
Task 2, Project Scoping and Permitting Strategy.
LOA will work with Town staff to define the scope of the project.. LOA will visit the site to
identify which trees are planned for removal and determine whether or not adequate area exists
along Barron Creels or other drainages within the watershed to accommodate any mitigation that
may be required..
Following the site visit, LOA will Consult with the relevant federal and state resource agencies
(e.g., the U.S, Army Corps of Engineers (USACE), California Department of Fish and Game
(CDFG), Regional Water Quality Control Board (RWQCB), and U.S, Fish and Wildlife Service
(USFWS)) to understand their permitting requirements for this project. LOA will work with
Town staff to develop a permitting strategy based on discussions with the agencies. LOA will
prepare a document outlining the project scope, the extent to which relevant state and federal
agencies would likely be involved with the project and their permitting requirements, and an
overall permitting strategy.
LOA proposes to complete this Phase 1 work for a time -and -materials cost not to exceed $6,623.
Phase 2: Permittinsr Assistance
Stream maintenance along the subject reach of Barron Creek will require, at a minimum, permits
from the CDFG and RWQCB,
Task 3. CDFG Streambed Aiteration Agreement.
Task 3a. Preparation of .1ippiicalion
LOA will prepare and submit an application to the CDFG for a 1602 Streambed Alteration
Agreement. As part of their application for a Streambed Alteration Agreement, the CDFG
requires a survey of all trees occurring within the proposed work area under their jurisdiction.
Therefore, this task will include a formal tree survey. Data to be collected will include species,
size (i.e., diameter at breast height and canopy size), and health. All trees will be marked using
standard survey tags, and each tree will be mapped using a GPS to include on a tree map for the
site, Also included in this task is a modest amount of time to coordinate with the agency,
Task 3G. Miligalion and Monitoring Pian
A draft mitigation and monitoring plan will be developed for mitigating impacts to aquatic
habitats and associated wetlands or, riparian areas. The plan will be based on site plan maps
provided by a civil engineer or hydrologist that show the final cross-section and plan views of
Live Daly rlssnciare..s. inc
the restoration areas. It is also imperative that a hydrology report be provided indicating how
these features will function hydrologically.
The mitigation and monitoring plan will include the following elements:
® A revegetation plan including density and species composition to be used in the
revegetation program and including a site snap showing areas of the site to be
revegetated.,
A monitoring plan including measurable performance standards and success criteria for
each year that the re -vegetated areas are monitored. These standards will address both
survivorship of all plantings and vegetative cover values to be achieved by the conclusion
of the monitoring period (final success criteria). This section will include an adaptive
management component that addresses situations where the re -vegetated areas fall below
stated performance standards and success criteria.
A maintenance plan including maintenance activities that may be necessary during the
establishment period (i -e. weed abatement, protection of trees and shrubs from wildlife
herbivory, etc.) and irrigation alternatives.
The mitigation and monitoring plan will not include detailed planting plans at this time. If
detailed planting plans are required (i.,e., plans and maps showing exact locations and species of
each plant to be used in the revegetation program), this will be handled under a separate scope
and budget.
Task 4. Preparation and Submittal of RWQCB Section 401 Water Quality Certification
Permit Application.
LOA will prepare and submit an application to the RWQCB for a Section 401 Certification,
Also included in this task is time to coordinate with the agency.
Task S. Response to Agency Comments/Revisions,
We have allowed a modest number of hours to respond to agency comments or requests for
report or application revisions. If additional time is required under this task, this will be billed
on a time -and -charges basis,
LOA proposes to complete this Phase 2 work for a time -and, -materials cost not to exceed $9,918.
Additional Tasks
Until we define the project scope and consult with the agencies, we cannot fully know which
additional agencies will be involved in the project and the extent of their involvement,
Therefore, while additional tasks that may be required depending on the project scope are
included below, the costs for completing these tasks are conceptual in nature only. One of the
primary outcomes of'Phase 1 will be to ascertain the best strategy and precise cost for permitting
the Town's preferred project.
Task U. USACE Permit Coordination.
Should Phase I tasks indicate that project activities will impact areas of Barron Creels that are
regulated by the USACC, a Clean Water Act Section 404 permit will be required from the
lire Clak Associales. !nc
USACE. The USACE will also require the determination and verification of: waters under their
jurisdiction as part of the preparation of an application for a USACE permit.
For this region, it is possible that the USACE may invoke n programmatic Endangered Species
Act section 7 consultation with the USFWS regarding the California red -legged frog.. Should
further consultation with the USFWS be required, such efforts will be covered under a separate
scope and budget.
Completion of this task would cost approximately $7,000.
Task ba. TVaters vJ the United States Analysis
Field survey, A detailed one -day field survey and a review of'historical information about the
biological resources on the site will be conducted by a wetland ecologist in order to gather the
information necessary to identify the extent of'USACE jurisdiction over Harron Creels. Data will
be gathered at selected observation locations that will be relevant to soils, hydrology, and
vegetation. All data will be entered on suitable data forms modeled after those developed for use
by the USAGE, Color photographs will be taken at each observation location. All wetland
boundaries will be accurately mapped using a GPS in accordance with guidelines acceptable to
the USACC. (including the established Minimum Standards).
Waters of the U.S. report. A technical report of the findings will be prepared classifying the
onsite waters and documenting their boundaries. This report will include a detailed map at a
minimum scale of I" = 200', All sample points will be identified on the map and keyed to the
data sheets. Data sheets will be incorporated into the technical report as an appendix. This
information will be in sufficient detail for submittal to the USAGE.
USACE field verification visit. Time has been allocated for a field visit with the USAGE staff to
verify the wetland delineation. These hours will only be billed if this agency requires onsite
verification,
Task 6U. Preparation pf Perrmii Applicatior7
This task includes preparation of the USACE permit application and letter outlining details of the
Project, including a detailed project description, extent of',jurisdictional waters, and an
assessment ofthe biological value of the jurisdictional waters to be impacted, This subtask also
includes time for a pre -application meeting with USAGE, should informal consultation with
USACE indicate that such a meeting would be important.
Task 7. Biological Evaluation.
Depending oil the project scope, the permitting agencies may require that a CEQA analysis be
completed for the project, Completion of a biological analysis that informs the CEQA process
(this assumes the Town's staff would prepare the Initial Study) would cost approximately
$6,200,
Task 7a. F, iels! Survey
LOA will conduct a field survey of the site to identify habitats that are present and to determine
ifthe site supports potentially suitable habitat for any special status plant or animal species that
Live Oak.i Nwchrte:s, Inc•
are known to occur regionally. issues related to ally special status habitats ol- species will be
identified,
Task 7b. Biological D,aluallon Report
The results of the field survey will be compiled in a biological evaluation report. This report will
identify existing habitats on the site, discuss the suitability ofthe site to support special -status
plant and animal species, identify potential impacts to biotic resources of the site and region
resulting from the proposed project, provide guidance on mitigation measures that would be
appropriate for any project impacts, and, if appropriate, recommend additional surveys that
would be needed as part of site protection measures,
Mitigation Monitoring. Because the type and location of mitigation is not known at this time, a
monitoring scope and budget has not been included with this proposal. Any monitoring effort
will be covered under a separate scope and budget.
Meetings and Hearings. It is difficult to anticipate the number and type (e,g,, onsite or
telephone) of meetings that will be required by the agencies, or whether or not internal team
meetings will be necessary or advantageous. If additional meetings are required by the agencies,
or if internal team meetings are desired or required, then upon authorization from the client,
these will be billed on a time -and -charges basis.
Report Revisions and Response to Comments. This scope includes a modest amount of time
for minor report revisions and responses to agency comments (Task 5). If extensive revisions or
a response to comments is required, this additional effort will be billed on a time -and -charges
basis.
We thank you for considering our firm and look forward to providing ecological services to you
on this project. if you have any additional questions or concerns regarding this proposed scope
and budget, please contact me at dohlsontudoainc.com or (408) 281-5886 at your earliest
convenience.
Sincerely,
Davinna Ohlson, M -S,
Senior Project Manager
Plant/Wildlife Ecologist
/.•!ve UCIK MWCIaleS' 717E
Pi-oposal Acceptance
Ijyorr approve this proposal 's scope of svoi-k, cost, and Standard Ternrs and Con(Niorns, please
sign and terra rr one cola)) r?j this proposal to nrrr oil ce al yoxr ear'lie,tit convenience
Accented by:
Printed name:
Date:
Title:
Live Oak ; ssodares. Inc
STANDARD TERMS AND CONDITIONS—1.,111F. 011K ASSOCIATES, INC,
The following are standard contract terms and conditions that will be part of our agreement.
APPLICABLE LAWS. Contractor is obligated by professional codes of ethics and applicable laws to
report observed violations of federal, state, and local codes for protection of natural resources and the
environment.
USE OF INFORMATION. Upon completion of the project, contractor retains the right to use relevant
information gathered during this project investigation on future projects. Contractor further retains the
right to use illustrations, charts, graphs, maps and other visual materials developed in connection with this
project investigation, but will omit references to client's name.
ADVERTISING. Contractor has the right to reference this project and client's name when preparing
literature, proposals and conducting interviews for obtaining future.consulting jobs.
SUBCONTRACTORS. Contractor may ernploy or subcontract to other, qualified personnel such
portions of the work required by client as contractor deems necessary.
ADDITIONAL WORK. This contract may be modified by mutual consent of the contractor and client
to add work, Any modifications of the scope will necessitate renegotiation of the contract. Client agrees
to reimburse contractor for any additional hours for requested extra work (tasks) not described in the
attached scope of work at applicable Hourly Fee Schedule rate.
STOP WORK. Services under this agreement shall terminate fifteen (15) days after contractors receipt
of written notification from client. Reasonable expenses for stopping work shall be paid by client.
Contractor may terminate this agreement by providing client with fifteen (15) days written notice.
TERMS. Terms of payment of all invoices shall be due upon receipt.
NON-PAYM ENT. Contractor may discontinue work and terminate this agreement after 30 days of non-
payment of invoices by client of fees and expenses billed by contz'actor. Client agrees to waive and
release any claims for any delay or claims of damage resulting from such suspension or termination..
CONTINGENCIES. All agreements in this contract are contingent upon normal availability of goods
and services. Delays beyond the reasonable control of the contractor or client shall be a valid reason for
adjustments,
HOLD HARMLESS. Client agrees to hold contractor hatnnless from any liability, suit, cause of action,
or other legal proceedings as a result of client's actions, omissions to act or wrongful conduct in
connection with the performance of this agreement.
SEVERABILITY. If any provision in this agreement is held by a court of competent jurisdiction to be
invalid, void, or uncnforceable, the remaining provisions shall nevertheless continue in full force without
being impaired or invalidated in any way.
INDEPENDENT CONTRACTOR. Contractor shall at all times be an independent contractor and not
the agent, partner or representative of the client.
PURPOSE OF REPORT. Contractor's report shall be used by client only in connection with the
project.
L.Ne Oah Assoclates. Inc
COMPENSATION SCHEDULE
Consulting Services Agreement between [EFFECTIVE DATE)
Town of Los Altos Hills and Live Oak Associates, Inc
Exhibit 8 Page 1 of I
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Consulting Services Agreement between [EFFECTIVE DATE)
Town of Los Altos Hills and Live Oak Associates, Inc.
Exhibit Page 1 of 1
EXHIBIT C
PROVISIONS REQUIRED FOR PUBLIC WORKS CONTRACTS
PURSUANT TO CALIFORNIA LABOR CODE SECTION 1724 ET SEQ.
HOURS OF WORK:
A In accordance with California Labor Code Section 1810, 8 hours of labor in performance of the
services described in Exhibit A shall constitute a legal day's work under this contract
B. in accordance with California Labor Code Section 1811, the time of service of any worker
employed in performance of the services described in Exhibit A is limited to eight hours during
any one calendar day, and forty hours during any one calendar week, except in accordance with
California Labor Code Section 1815, which provides that work in excess of eight hours during any
one calendar day and forty hours during any one calendar week is permitted upon compensation
for all hours worked in excess of eight hours during any one calendar day and forty hours during
any one calendar week at not less than one -and -one-half times the basic rate of pay.
C The Consultant and its subcontractors shall forfeit as a penalty to the Town $25 for each worker
employed in the performance of the services described in Exhibit A for each calendar day during
which the worker is required or permitted to work more than 8 hours in any one calendar day, or
more than 40 hours in any one calendar week, in violation of the provisions of California Labor
Code Section 1810 and following.
WAGES:
A. In accordance with California Labor Code Section 1773.2, the Town has determined the general
prevailing wages in the locality in which the services described in Exhibit A are to be performed
for each craft or type of work needed to be as published by the State of California Department of
Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the
Town Public Works Office and shall be made available on request. The Consultant and
subcontractors engaged in the performance of the services described in Exhibit A shall pay no
less than these rates to all persons engaged in performance of the services described in Exhibit
A.
S. In accordance with Labor Code Section 1775, the Consultant and any subcontractors engaged in
performance of the services described in Exhibit A shall comply Labor Code Section 1775, which
establishes a penalty of up to $50 per day for each worker engaged in the performance of the
services described In Exhibit A that the Consultant or any subcontractor pays less than the
specified prevailing wage. The amount of such penalty shall be determined by the Labor
Commissioner and shall be based on consideration of the mistake, inadvertence, or neglect of
the Consultant or subcontractor in failing to pay the correct rate of prevailing wages, or the
previous record of the Consultant or subcontractor in meeting applicable prevailing wage
Consulting Services Agreement between [EFFECTIVE DATE]
Town of Los Altos Hills and Live Oak Associates, Inc.
Exhibit[ClPage 1 of 3
obligations, or the willful failure by the Consultant or subcontractor to pay the correct rates of
prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rate of
prevailing wages is not excusable if the Consultant or subcontractor had knowledge of their
obligations under the California Labor Code. The Consultant or subcontractor shall pay the
difference between the prevailing wage rates and the amount paid to each worker for each
calendar day or portion thereof for which each worker was paid less than the prevailing wage
rate If a subcontractor worker engaged in performance of the services described in Exhibit A is
not paid the general prevailing per diem wages by the subcontractor, the Consultant is not liable
for any penalties therefore unless the Consultant had knowledge of that failure or unless the
Consultant falls to comply with all of the following requirements:
The contract executed between the Consultant and the subcontractor for the
performance of part of the services described in Exhibit A shall include a copy of the
provisions of California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813, and 1815.
2 The Consultant shall monitor.payment of the specified general prevailing rate of per diem
wages by the subcontractor by periodic review of the subcontractor's certified payroll
records.
Upon becoming aware of a subcontractor's failure to pay the specified prevailing rate of
wages, the Consultant shall diligently take corrective action to halt or rectify the failure,
including, but not limited to, retaining sufficient funds due the subcontractor for
performance of the services described in Exhibit A.
4, Prior to making final payment to the subcontractor, the Consultant shall obtain an
affidavit signed under penalty of perjury from the subcontractor that the subcontractor
has paid the specified general prevailing rate of per diem wages for employees engaged
in the performance of the services described in Exhibit A and any amounts due pursuant
to California Labor Code Section 1813
C. In accordance with California Labor Code Section 1776, the Consultant and each subcontractor
engaged in performance of the services described in Exhibit A shall keep accurate payroll
records showing the name, address, social security number, work, straight time and overtime
hours worked each day and week, and the actual per diem wages paid to each journeyman,
apprentice, worker, or other employee employed in performance of the services described in
Exhibit A. Each payroll record shall contain or be verified by a written declaration that it is made
under penalty of perjury, stating both of the following.
The information contained in the payroll record is true and correct.
2. The employer has complied with the requirements of Sections 1771, 1811, and 1815 for
any work performed by the employer's employees on the public works project
Consulting Services Agreement between (EFFECTIVE DATE]
Town of Los Altos Hills and Live teak Associates, Inc.
Exhibit [CI Page 2 of 3
The payroll records required pursuant to California Labor Code Section 1776 shall be certified
and shall be available for inspection by the Owner and its authorized representatives, the
Division of Labor Standards Enforcement, the Division of Apprenticeship Standards of the
Department of Industrial Relations and shall otherwise be available for inspection in accordance
with California Labor Code Section 1776.
D In accordance with California Labor Code Section 1777.5, the Consultant, on behalf of the
Consultant and any subcontractors engaged in performance of the services described in Exhibit
A, shall be responsible for ensuring compliance with California Labor Code Section 1777.5
governing employment and payment of apprentices on public works contracts.
E. In case it becomes necessary for the Consultant or any subcontractor engaged in performance
of the services described in Exhibit A to employ for the services described in Exhibit A any
person in a trade or occupation (except executive, supervisory, administrative, clerical, or other
non manual workers as such) for which no minimum wage rate has been determined by the '
Director of the Department of Industrial Relations, the Contractor shall pay the minimum rate of
wages specified therein for the classification which most nearly corresponds to services
described in Exhibit A to be performed by that person. The minimum rate thus furnished shall be
applicable as a minimum for such trade or occupation from the time of the Initial employment of
the person affected and during the continuance of such employment
Consulting Services Agreement between [EFFECTIVE DATE]
Town of Los Altos Hills and Live Oak Associates, Inc.
Exhibit C Page 3 of 3