16-124 Arbor Resources (David Babby), On-Call Arborist Review ServicesAGREEMENT BETWEEN THE CITY OF CUPERTINO AND ARBOR
RESOURCES (DA YID BABBY) FOR "ON-CALL" ARBORIST REVIEW
SERVICES
THIS AGREEMENT, is entered into this 1st day of July, 2016, by and between the
CITY OF CUPERTINO, a California municipal corporation ("City"), and Arbor Resources
(David Babby), a whose address is P .O. Box 25295, San Mateo, California 94402
(hereinafter refeITed to as "Consultant") (collectively referred to as the "Pa11ies ").
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to cmTy on its business as it is now being
conducted under the Constitution and the statutes of the State of California and the
Cupe11ino Municipal Code.
B. Consultant is specially trained, experienced and competent to perfo1m the
special services which will be required by this Agreement.
C. Consultant possesses the skill, expe1ience, ability, background, ce11ification
and knowledge to provide the services desc1ibed in this Agreement on the te1ms and
conditions desc1ibed herein.
D. City and Consultant desire to enter into an agreement for arbo1ist review
services for various development projects in the City of Cupe11ino upon the tenns and
conditions herein.
NOW, THEREFORE, the Pm1ies mutually agree as follows :
1. TERM
The te1m of this Agreement shall commence on July 1, 2016, and shall tern1inate
on June 30, 2017, unless te1minated earlier as set fo11h herein.
2. SERVICES TO BE PERFORMED
Consultant shall perfo1m each and every service set f011h in Exhibit "A", which is
attached hereto and incorporated herein by this reference .
3. C01\1PENSATION TO CONSULTANT
Consultant shall be compensated for services perfo1med pursuant to this Agreement
in a total amount not to exceed TEN THOUSAND dollars ($10,000.00) based on the rates
and tenns set f011h in Exhibit "A," which is attached hereto and incorporated herein by this
reference.
4. TIME IS OF THE ESSENCE
Consultant and City agree that time is of the essence regarding the perfonnance of
this Agreement.
5. STANDARD OF CARE
Consultant agrees to perform all services required by this Agreement in a manner
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.Z\rbor Resources (David Babby ) "On -Call " Contract , FY 15 -16
commensurate with the prevailing standards of like professionals in the San Francisco Bay
Area and agrees that all services shall be performed by qualified and experienced personnel
who are not employed by the City nor have any contractual relation ship with City.
6. INDEPENDENT PARTIES
City and Consultant intend that the relationship betw ee n them created by this
Agreement is that of independ ent contractor. The manner and means of
conducting the work are under the control of Consultant , except to the exte nt the y are
limited by statute, rule or regulation and the express terms of this Agreement. No c ivil
service sta tu s or other right of employment will be acquired by virtue of Cons ult ant's
services. None of the benefits provided by City to it s employees , including but not limited
to , unemployment insurance, workers' compensation plans, vacation and sick leave are
available from City to Consultant, its employees or agents. Dedu ctions shall not be made
for any state or federal taxes, FICA payments, PERS payments, or other purp oses normall y
associated with an employer-employee relation ship from any fees due Consultant.
Payments of the above items, if required , are the responsibility of Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA)
Cons ultant assumes any and a ll respon si bilit y for verifying the identity and
em plo yme nt authorization of all of hi s/her e mpl oyees performin g wo rk hereunder ,
pursuant to all applicable !RCA or other federal, or state rules and re gulation s. Co nsultant
shall indemnify and hold City harml ess from and against any los s, damage , liabilit y, costs
or expenses ar isin g from any noncompliance of this provision by Cons ultant .
8. NON-DISCRIMINATION
Consistent with City's policy prohibitin g harassment and di sc rimination ,
Consultant agrees that it shall not harass or discriminate against a job applicant , a City
employee , or a citizen by Consultant or Consultant's e mplo yee or subco ntractor on the ba s is
ofrace, religious creed, color, national origin, ancestry, handicap , disability , marital stat us,
pregnancy , sex, age, sexual orientation, or any other protected class. Consultant agrees that
any and all violations of this provision shall constitute a material br eac h of thi s Agreement.
9. HOLD HARMLESS
~ Standard Indemnification :
Consultant shall, to the fullest extent allowed by law and without limitati o n of the
provisions of this Agreement related to insurance , with respect to a ll se rvic es performed in
co nnection with the Agreement, indemnify, de fe nd , and hold harmle ss the C it y and its
officers , officials, agents , employees and volunteers from and against any and a ll liabilit y,
c laims , actions, causes of action or demands whatsoever against any of them , including
any injury to or death of any person or damage to property or other liabilit y of an y natur e,
whether physical, emotional, consequential or otherwise, arising out , pertaining to , or
related to the negligent performance of this Agreement by Consultant or Consultant's
employees , officers, officials, agents or independent contractors . Such costs and expe nses
shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all
other costs and fees of litigation. The acceptance of the Services by City shall not operate
as a waiver of the right of indemnification. The provi sio ns of this Section survi ve th e
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Arbor Resources (David Babby) "On-Cal l" Contract, FY 15-16
completion of the Services or tern1ination of this Contract.
10. INSURANCE:
A. General Reguirements. On or before the commencement of the term of this
Agreement, Consultant shall furnish City with certificates showing the type, amount, class
of operations covered, effective dates and dates of expiration of insurance coverage in
compliance with the requirements listed in Exhibit "D". Such certificates, which do not
limit Consultant's indemnification, shall also contain substantially the following statement:
"Should any of the above insurance covered by this certificate be canceled or coverage
reduced before the expiration date thereof, the insurer affording coverage shall provide
thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention:
City Manager." Consultant shall maintain in force at all times during the performance of
this Agreement all appropriate coverage of insurance required by this Agreement with an
insurance company that is acceptable to City and licensed to do insurance business in the
State of California. Endorsements naming the City as additional insured shall be submitted
with the insurance certificates.
B. Subrogation Waiver. Consultant agrees that in the event of loss due to any
of the perils for which he/she has agreed to provide comprehensive general and automotive
liability insurance, Consultant shall look solely to his/her insurance for recovery.
Consultant hereby grants to City, on behalf of any insurer providing comprehensive general
and automotive liability insurance to either Consultant or City with respect to the services
of Consultant herein, a waiver of any right to subrogation which any such insurer of said
Consultant may acquire against City by virtue of the payment of any loss under such
msurance.
C. Failure to secure or maintain insurance . If Consultant at any time during the
term hereof should fail to secure or maintain the foregoing insurance, City shall be
pennitted to obtain such insurance in the Consultant's name or as an agent of the Consultant
and shall be compensated by the Consultant for the costs of the insurance premiums at the
maximum rate permitted by law and computed from the date written notice is received that
the premiums have not been paid.
D. Additional Insured. City, its City Council, boards and commissions,
officers, employees and volunteers shall be named as an additional insured under all
insurance coverages, except any professional liability insurance, required by this
Agreement. The naming of an additional insured shall not affect any recovery to which
such additional insured would be entitled under this policy if not named as such additional
insured. An additional insured named herein shall not be held liable for any premium,
deductible portion of any loss, or expense of any nature on this policy or any extension
thereof. Any other insurance held by an additional insured shall not be required to
contribute anything toward any loss or expense covered by the insurance provided by this
policy.
E. Sufficiency of Insurance. The insurance limits required by City are not
represented as being sufficient to protect Consultant. Consultant is advised to confer with
Consultant's insurance broker to detern1ine adequate coverage for Consultant.
F . Maximum Coverage and Limits . It shall be a requirement under this
Agreement that any available insurance proceeds broader than or in excess of the specified
minimum Insurance coverage requirements and /or limits shall be available to the additional
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Arbor Resources (David Babby J "On-Call " Contract , FY 15 -16
insured City. Furthe1111ore , the requirements for coverage and limits shall be the minimum
coverage and limits specified in this Agreement, or the broader coverage and maximum
limits of coverage of any insurance policy or proceeds available to the named insured,
whichever is greater.
11. CONFLICT OF INTEREST
Consultant wmrnnts that it presently has no interest, and will not acquire any
interest, direct or indirect, financial or otherwise, that would conflict in any way with the
perfonnance of this Agreement, and that it will not employ any person having such an
interest. Consultant agrees to advise City immediately if any conflict arises and understands
that it may be required to fill out a conflict of interest f01111 if the services provided under
this Agreement require Consultant to make ce1iain governmental decisions or serve in a
staff capacity as defined in Title 2, Division 6 , Section 18700 of the California Code of
Regulations.
12. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or
any interest therein, directly or indirectly, by operation of law or otherwise, without p1ior
w ritten consent of City. Any attempt to do so without said consent shall be null and void,
and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer. Howev er, claims for
money by Consultant from City under this Agreement may be assigned to a bank, trnst
company or other financial institution without p1ior written consent. Written notice of such
assignment shall be promptly furnished to City by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general pminer or joint
v enturer or syndicate member or cotenant, if Consultant is a pminership or joint v enture or
syndicate or cotenancy, which shall result in changing the control of Consultant, shall be
constrned as an assignment of this Agreement. Control means fifty percent (50%) or more
of the voting power of the corporation.
13. SUBCONTRACTOR APPROVAL
Unless prior written consent from City is obtained, only those people and
subcontractors whose names and resumes are attached to this Agreement shall be used in
the perfo1111ance of this Agreement.
In the ev ent that Consultant employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to
cmTy general , automobile and professional liability insurance in reasonable confonnity to
the insurance carried by Consultant. In addition, any work or services subcontracted
hereunder shall be subject to each provision of this Agreement.
Consultant agrees to include with all subcontractors in their subcontract the same
requirements and provisions of this Agreement including the indemnity and insurance
requirements to the extent they apply to the scope of the subcontractor's work.
Subcontractors hired by Consultant agree to be bound to Consultant and City in the same
manner and to the same extent as Consultant is bound to City under this Agreement.
Subcontractor fuither agrees to include the se same prov isions with any sub-subcontractor.
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Arbor Resources (David Babby) "On -Call" Contract , FY 15-16
A copy of the Owner Contract Document Indemnity and Insurance provisions will be
furnished to the subcontractor upon request. Consultant shall require all subcontractors to
provide a valid ce1iificate of insurance and the required endorsements included in the
agreement prior to commencement of any work and will provide proof of compliance to
City.
14. PERMITS AND LICENSES
Consultant, at his/her sole expense, shall obtain and maintain during the te1m of
this Agreement, all appropriate pe1mits, ce11ificates and licenses including, but not limited
to, a City Business License, that may be required in connection with the perfo1mance of
services hereunder.
15. REPORTS
A. Each and every rep011, draft, work product, map, record and other
document, hereinafter collectively refeITed to as "Rep011 11
, reproduced, prepared or caused
to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the
exclusive prope11y of City. Consultant shall not copyright any Rep011 required by this
Agreement and shall execute approp1iate documents to assign to City the copyright to
Repo11s created pursuant to this Agreement. Any Rep011, info1mation and data acquired or
required by this Agreement shall become the prope11y of City, and all publication iights
are reserved to City. Consultant may retain a copy of any repo1i furnished to the City
pursuant to this Agreement.
B. All Repo11s prepared by Consultant may be used by City in execution or
implementation of: (1) The original Project for which Consultant was hired ; (2)
Completion of the oiiginal Project by others; (3) Subsequent additions to the original
project; and/or (4) Other City projects as City deems appropriate.
C. Consultant shall, at such time and in such f01m as City may require, furnish
repo11s concerning the status of services required under this Agreement.
D. All Rep011s required to be provided by this Agreement shall be printed on
recycled paper. All Repo11s shall be copied on both sides of the paper except for one
original, which shall be single sided.
E. No Report, infornrntion or other data given to or prepared or assembled by
Consultant pursuant to this Agreement shall be made available to any individual or
organization by Consultant without p1ior approval by City.
16 . RECORDS
Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such infonnation required by City that relate to the
perf01mance of services under this Agreement, in sufficient detail to permit an evaluation
of services. All such records shall be maintained in accordance with generally accepted
accounting principles and shall be clearly identified and readily accessible . Consultant shall
provide free access to such books and records to the representatives of City or its designees
at all proper times, and gives City the right to examine and audit same, and to make
transcripts therefrom as necessary, and to allow inspection of all work, data, documents,
proceedings and activities related to this Agreement. Such records, together with
suppo11ing documents, shall be kept separate from other documents and records and shall
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Arbor Resources (David Babby) "On -Call " Cont r act , FY 15 -16
be maintained for a period of three (3) years after Consultant receives final payment from
City for all services required under this agreement.
If supplemental examination or audit of the records is necessary due to concerns
raised by City's preliminary examination or audit of records, and the City's supplemental
examination or audit of the records discloses a failure to adhere to appropriate internal
financial controls , or other breach of contract or failure to act in good faith , then Consultant
shall reimburse City for all reasonable costs and expenses associated with the supplemental
examination or audit.
17. NONAPPROPRIATION
This Agreement is subject to the fiscal provisions of the Cupertino Municipal Code
and Agreement will te1minate without any penalty (a) at the end of any fiscal year in the
event that funds are not approp1iated for the following fiscal year, or (b) at any time within
a fiscal year in the event that funds are only appropriated for a portion of the fiscal year
and funds for this Agreement are no longer available. This Section shall take precedence
in the event of a conflict with any other covenant, tenn, condition, or provision of this
Agreement.
18. ENVIRONMENTALLY PREFERABLE PURCHASING
Consultant shall comply with the City 's Environmentally Preferable Procurement
Policy whenever practicable in completing any work under this agreement, including but
not limited to:
• Using paper products made with recycled content and recycled/remanufactured
toner and inkjet cart1idges ;
• Printing with soy or low volatile organic compounds (VOC) inks ;
• Using energy-star compliant equipment;
• Using cleansers and working with janitorial contractors to meet Green Seal's
Industrial and Institutional Cleaners Standard; and
• Ordering supplies electronically and practicing other internal waste reduction
and reuse protocols .
19. NOTICES
All notices, demands , requests or approvals to be given under this Agreement shall
be given in w1iting and conclusively shall be deemed served when delivered personally or
on the second business day after the deposit thereof in the United States Mail, postage
prepaid, registered or certified, addressed as hereinafter provided .
All notices, demands , requests, or approvals shall be addressed as follows:
TO CITY:
City of Cupertino
10300 TolTe Ave.
Cupertino CA 95014
Attention: Aarti Shriv astava Assistant City Manager
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Arbor Resources (D avid Babby ) "On -Call " Contract , FY 15 -16
TO CONSULT ANT:
Arbor Resources
P,O , Box 25295
San Mateo, CA 94402
Attn : David Babby
20. TERMINATION
In the event Consultant fails or refuses to perform any of the provi s ions hereof at
the time and in the manner required hereunder , Consultant shall be deemed in default in
the performance of this Agreement. If Consultant fails to cure the default within the time
specified and according to the requirements set forth in City's written notice of default, and
in addition to any other remedy available to the City by law , the City Manager ma y
terminate the Agreement by giving Consultant written notice thereof, w hi c h shall be
effective immediately. The City Manager shall also have the option, at its so le discretion
and without cause, of terminating this Agreement by giving seven (7) calendar da ys' prior
written notice to Consultant as provided herein. Upon receipt of any notice of termination ,
Consultant shall immediately discontinue performance .
City shall pa y Consultant for services satisfactorily performed up to the effective
date of termination. If the termination is for cause, City ma y deduct from suc h payment the
amount of actual dama ge, if any , sustained by City due to Consultant 's failure to perform
its material obligations under this Agreement. Upon termination , Consultant shall
immediatel y deliver to the City any and all copies of studi es , ske tch es , drawings ,
computations, and other material or products , whether or not completed , prepared by
Consultant or given to Consultant, in connection with this Agreement. Such material s shall
become the propert y of City.
21. COMPLIANCE
Consultant shall comply with all state or federal laws and all ordinances, rules ,
policies and regulations enacted or issued by City.
22. CONFLICT OF LAW
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules which may direct the application of laws of
another jurisdiction. The Agreement and obligations of the patties are subject to all valid
laws , orders , rules, and regulations of the authorities having jurisdiction over this
Agreement (or the successors of those authorities). Any suits brou ght pursuant to this
Agreement sha ll be filed with the Superior Cou1t of the County of Santa Clara, State of
California .
23. ADVERTISEMENT
Consultant shall not post , exhibit, displa y or allow to be posted , ex hibited ,
displayed any signs, advertising, show bills, lith ograp hs , poster s or cards of any kind
pertaining to the services performed under this Agreement unle ss prior written approval
has been secured from City to do otherwise.
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Arbor Resources (David Babby ) "On-Cal l " Con t ract, FY 15-16
24. WAIVER
A waiver by City of any breach of any term, covenant, or condition contained herein
shall not be deemed to be a waiver of any subsequent breach of the same or any other term,
covenant, or condition contained herein, whether of the same or a different character.
25. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties , and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant
shall be held to vary the provisions hereof Any modification of this Agreement will be
effective only by written execution signed by both City and Consultant.
26. AUTHORITY
The individual(s) executing this Agreement represent and warrant that they have
the legal capacity and authority to do so on behalf of their respective legal entities.
27. INSERTED PROVISIONS
Each provision and clause required by law to be inserted into the Agreement shall
be deemed to be enacted herein , and the Agreement shall be read and enforced as though
each were included herein. If through mistake or otherwise, any such provision is not
inserted or is not correctly inserted, the Agreement shall be amended to make such insertion
on application by either party.
28. CAPTIONS AND TERMS
The captions in this Agreement are for convenience only, are not a part of the
Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.
All unchecked boxes do not apply to this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
CONSULTANT
Arbor Resources
By ?1-kl l . r
Title Owner/Consulting Arborist
Date August 30, 2016
APPROVED AS TO FORM:
City Attorney
ATTEST: nJ ~<Z.~J:t
City Clerk 1 £ y-,/~
CITY OF CUPERTINO
A Municipal Corporation
By ~df &u;a_I@_
Title'/?'M e!!Y llfl?:
Date o j/06//£ ,_ )
IZI U p to $45 ,000-Des ignated Sup eiv isor Approva l Requ ired
RECOMMENDED FOR APPROVAL
~:s? -
BeilFit,ASSt Director of Community Dev
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Arbor Resources (David Babby ) "On-Call " Contract , FY 15-16
Exhibits: (C heck box fo r ex hi bits th at appl y to 01i s contract and attach)
IZl Exhibit "A "-Scope of Services, Schedule of Perfomrnnce and Compensation
D Exhibit "B "-Schedule of Perfonnance
D E xhibit "C" -Compensation
IZl Exhibit "D "-Insurance Requirements and Proof of Insurance
D Exhibit "E "-Mandated Rep011ing Acknowledgement
D E xhibit "F "-Background/Fingerprint/TB Declaration
D Exhibit "G "-Nondisc1imination-State/F ederal /HUD funded project
D Exhibit "H" -Request for City Manager to Wai v e Infomrnl Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER A MOU N T
PO #2017-)-?~
Account #: 100-71-701 700-702 $10,000.00
Total: $10,000.00
9
Exhibit A
Scope of Services, Schedule of Performance and Compensation
1 Scope of Services: Consultant shall provide arbor review services as requested by City
for vaiious development projects in Cupe1tino, (the "Project").
Staff assigned to the Project by Consultant shall be preapproved by the City of Cupe1tino
Assistant Director of the Co1mnunity Development Depaitment, and shall be removed
immediately upon City's request and replaced with an approved substitute.
IL. Compensation:
City shall compensate Consultant for professional services in accordance with the te1ms and
conditions of this Agreement based on the rates and compensation schedule set forth below.
Compensation shall be calculated based on the hourly rates set fo1th below up to the not to
exceed budget amount set f01th below.
The compensation to be paid to Consultant under this Agreement for all services desc1ibed under
Section 1 of this Exhibit and reimbursable expenses shall not exceed a total of TEN
THOUSAND DOLLARS ($10,000.00). Any work perfonned or expenses incmTed for which
payment would result in a total exceeding the maximum amount of compensation set fo1th herein
shall be at no cost to the City.
III. Rates:
Hourly Rate: $280/hour, not to exceed $10,000
IV. Title: Development projects in Cupe1tino
V. Invoices
In order to request payment, Consultant shall submit monthly invoices to the CITY desc1ibing
the services perfonned and the applicable charges (including a smmnary of work perf01med
during that quaiter, personnel who perfo1med the services, hours worked, task(s) for which work
was perfonned).
VI. Reimbursable Expenses
N01mal project related reimbursable expenses such as printing, postage, delivery services,
long distance phone calls (excluding 405 , 510, and 650 area codes), facsimile transmissions,
mileage, and special project-related supplies.
VII. Additional Services
Consultant shall provide additional services outside of the services identified in Exhibit A only
by advance written authorization from the City's Project Manager prior to commencement of any
additional services. Consultant shall submit, at the Project Manager's request, a detailed w1itten
proposal including a description of the scope of additional services, schedule, and proposed
maximum compensation.
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Exhibit D
Insurance Requirements and Proof of Insurance
Proof of insurance coverage described below is attached to this Exhibit, with City named as
additional insured .
Consultant shall maintain the following minimum insurance coverage:
A. COVERAGE:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liabilitv:
Conunercial general liability coverage in the following minimum limits :
Bodily Injury: $500,000 each occmTence
$1,000,000 aggregate -all other
Property Damage: $100,000 each occmTence
$2 50,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $1,000,000 will be considered equivalent to the required
minimum limits shown above.
(3) Automotive:
(4)
Comprehensive automotive liability coverage in the following minimum limits :
Bodily Injury: $500,000 each occmTence
Property Damage: $100,000 each occmTence
or
Combined Single Limit: $500,000 each occmTence
Professional Liability
Professional liability insurance which includes coverage for the professional acts ,
en-ors and omissions of Consultant in the amount of at least $1,00 0 ,000.
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