05-122, Cities and Greg Sellers
05-/.;2 2.
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement for Professional Services ("Agreement") is made and entered into as of
November 9,2005, by and between the City of Cupertino, Town of Los Altos Hills, City of
Monte Sereno and City of Saratoga, municipal corporations, hereinafter referred to as "CITIES",
and Greg Sellers, hereinafter referred to as "CONSULTANT".
RECITALS
A. CITIES desire to retain CONSULTANT for certain professional services as set forth in
this Agreement.
B. CONSUL T ANT is specially trained, experienced and competent to perform the special
services which will be required by this Agreement.
C. CONSUL T ANT possesses the skill, ability, background, certification and knowledge to
provide the services described in this Agreement on the terms and conditions describ~d herein.
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained
herein, CITIES and CONSULTANT agree as follows:
AGREEMENT
1. Employment of CONSULTANT: CITIES agree to, and hereby does, retain and employ
CONSUL T ANT to perform the professional services as outlined in the Scope of Work attached
hereto and incorporated herein as Exhibit "A". CONSULTANT'S work product shall be
performed pursuant to generally accepted standards of practice in effect at the time of
performance.
2. Responsible Personnel: CITIES have relied upon the professional training and ability of
CONSUL T ANT to perform the services hereunder as a material inducement to enter into this
Agreement. Primary personnel responsible for the completion of the work described in this
Agreement shall be Greg Sellers.
3. Scope of Work: CONSULTANT shall perform the services as specified in Exhibit A in a
professional manner.
4. Time of Performance: The services of CONSUL T ANT are to commence upon
execution of this Agreement and shall continue until all authorized work is approved by the
CITIES. All such work shall be completed no later than January 31, 2006. Time is of the essence
in the performance of this Agreement. No waiver by either party hereto of the nonperformance or
any breach of any term, provision, or condition of this Agreement, or any default hereunder shall
be considered to be or operate as a waiver of any subsequent nonperformance, breach or default.
5. Compensation: CONSULTANT shall accept compensation for services performed as
set forth in Section 3 in an amount not to exceed $3,000 per City/Town. Periodic payments to
CONSUL T ANT shall be made upon submittal of invoices by CONSULTANT to CITIES for
review and approval by the City Manager. Invoices will be paid by CITIES within a reasonable
time after the invoices are received and approved.
6. Indemnity: CONSULTANT shall hold hannless, indemnify and defend CITIES, its
elective and appointive boards, commissions, officers, agents, servants, volunteers, and
employees from and against any and all claims, costs, damages, liability, losses, or suits
(including court costs and attorney fees) for personal injury (including death), property damage
and any other damages of any sort whatsoever, arising out of, or alleged to have arisen out of, the
willful or negligent acts, errors, or omissions of CONSUL T ANT or CONSULTANT'S
contractors, subcontractors, agents, or employees in the performance of this Agreement. This
indemnity shall not apply to any claims brought by CONSULTANT for default of this
Agreement, or for claims brought by CITIES or any third party where the underlying injury or
damage is finally determined by a court of competent jurisdiction to arise solely from the
negligent or willful misconduct of CITIES.
7. Termination: This Agreement may be terminated by the CITIES immediately for cause
or by either party without cause upon fifteen days' written notice of termination. Upon
termination, CONSULTANT shall be entitled to compensation for services performed up to the
effective date of termination.
CONSUL T ANT shall accept, for itself, as full payment for services rendered and all
work to be done and performed hereunder and in complete satisfaction of all claims against
CITIES by reason of voluntary abandonment or suspension of work or termination of the
Agreement, the sum determined on an hourly basis in accordance with the provisions of this
Agreement, or any modification of amendment thereto, plus all direct expenses incurred,
including those expenses incurred which are directly attributable to the incomplete portion of the
work which could not be canceled.
In the event of termination, CONSULTANT shall deliver as a condition to the payment
of the compensation provided for above, or otherwise make available to CITIES, all research
data reports, estimates, summaries, and other such information and materials as may have been
accumulated by CONSULTANT in performing this Agreement, whether completed or in process
in accordance with Section 8 of this Agreement.
8. Documents: Notes, studies, chain, computations, electronic files, and other data and
information obtained by CONSULTANT for this project shall, upon receipt of payment for
services rendered, be made available to CITIES by CONSULTANT at CITIES' request and shall
become the property of CITIES. In the event CITIES alters the document, CITIES agrees
CONSUL T ANT shall have no responsibility whatsoever for any claim arising out of, or alleged
to have risen out of, use of the altered document,
All plans, studies, documents, charts, computations, and electronic files prepared by and
for CONSULTANT, its officers, employees and agents and subcontractors in the course of
implementing this Agreement, except working notes and internal documents, shall become the
property of the CITIES upon payment to CONSULTANT for such work, and the CITIES shall
have the sole right to use such materials in its discretion without further compensation to.
CONSULTANT or to any other party. CONSULTANT shall, at CONSULTANT'S expense,
provide such reports, plans, studies, documents and other writings to CITIES upon written
request.
9. Independent Contractor: CONTRACTOR is an independent contractor retained by
CITIES to perform the work described herein. ALL personnel employed by CONSULTANT are
not and shall not be deemed to be employees of CITIES. CONSULTANT shall obtain no rights
to retirement benefits or other benefits that accrue to CITIES' employees, and CONSULTANT
hereby expressly waives any claim it may have to such rights. CONSULTANT shall comply
with all state and federa11aws pertaining to employment and compensation of its employees and
its agents, including the provision of Workers' Compensation.
10. Licenses: CONSULTANT represents and warrants to CITIES that it has all licenses,
permits, qualifications, insurance and approvals of whatsoever nature which are legally required
of CONSULTANT to practice its profession. CONSULTANT represents and warrants to
CITIES that CONSULTANT shall, at its sole cost and expense, keep in effect or obtain at all
times during the term of this Agreement, any licenses, permits, insurance and approvals which
are legally required of CONSULTANT to practice its profession.
11. Assignment: The parties recognize that a substantial inducement to CITIES for entering
into this Agreement is the professional reputation, experience and competence of
CONSUL T ANT. Assignments of any or all rights, duties or obligations of the CONSULTANT
under this Agreement will be permitted only with the express consent ofthe CITIES.
CONSULTANT shall not subcontract any portion of the work to be performed under this
Agreement without the written authorization of the CITIES. If the CITIES consent to such
subcontract, CONSULTANT shall be fully responsible to CITIES for all acts or omissions of the
subcontractor. Nothing in this Agreement shall create any contractual relationship between
CITIES and subcontractor nor shall it create any obligation on the part of the CITIES to payor to
see to the payment of any monies due to any such contractor other than as otherwise required by
law.
12. Binding on Successors: This Agreement is binding on the heirs, successors and assigns
of the parties hereto.
13. Amendment: This Agreement may be amended, modified or changed by the parties,
provided that said Agreement, modification or change is in writing and approved by the
authorized representative of the parties.
14. Applicable Law and Attorney's Fees: This Agreement shall be construed and enforced
in accordance with the laws of the State of California, and any action brought relating to this
Agreement shall be held exclusively in a state court in the County of Santa Clara. Should any
legal action be brought by a party for breach of this Agreement or to enforce any provision of the
Agreement, the prevailing party of such action shall be entitled to recover its reasonable
litigation expenses, including attorney fees.
15. Entire Agreement: This Agreement contains the entire understanding between the
parties with respect to the subject matter herein. There are no representations, agreements or
understandings, whether oral or written, between or among the parties relating to the subject
matter of this Agreement which are not fully expressed herein. The drafting and negotiation of
this Agreement have been participated in by each of the parties and/or their counsel, and for all
purposes this Agreement shall be deemed to have been drafted jointly by all parties.
16. Waiver: Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver of a subsequent breach of the same or any other provision under this
agreement.
17. Severability: If any term or portion of this Agreement shall be held by a court of
competent jurisdiction to be invalid, illegal, or otherwise unenforceable, the remaining
provisions of this Agreement shall continue in full force and effect.
WITNESS WHEREOF this Agreement is executed by CITIES and by CONSULTANT
on this 10th day of November, 2005, at Monte Sereno, California.
CONSULTANT:
Greg Sellers
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CITIES:
TOWN OF LOS ALTOS HILLS
By:
Maureen Cassingham, City Manager
CITIES:
CI OF CUPERTINO
CITIES:
CITY OF MONTE SERENO
G~~
Brian Loventhal, City Manager
CITIES:
CITY OF SARATOGA
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By: Dave Anderson, City Manager