06-018, CITIES, Greg Sellers
(b-' ,/1
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. CONSULTANT possesses the skill, ability, background, certification and knowledge to
provide the services described in this Agreement on the terms and conditions described herein.
NOW, THEREFORE, in consideration ofthe 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
CONSULTANT 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 harmless, 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 CONSULTANT 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 [mally 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.
CONSULTANT 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
CONSUL T ANT 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 federal laws 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.
CONSUL TANT:
Greg Sellers
CITIES:
TOWN OF LOS ALTOS HILLS
Maureen Cassingham, City Manager
By:
CITIES:
CITY OF MONTE SERENO
G~~
Brian Loventhal, City Manager
CITIES:
CITY OF SARATOGA
c~~
By: Dave Anderson, City Manager
FIRST AMENDED AGREEMENT
FOR PROFESSIONAL SERVICES
This First Amended Agreement for Professional Services ("Agreement") is made and
entered into effective March 1,2006, 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". This Agreement
amends and replaces in its entirety the Agreement between CITIES and CONSULTANT entered
into November 9, 2005.
RECITALS
A. CITIES desire to retain CONSULTANT for certain professional services as set forth in
this Agreement.
B. CONSULTANT is specially trained, experienced and competent to perform the special
services which will be required by this Agreement.
C. CONSULTANT possesses the skill, ability, background, certification and knowledge to
provide the services described in this Agreement on the terms and conditions described
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 do, retain and employ
CONSULTANT 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
CONSULTANT to perform the services hereunder as a material inducement to enter into
this Agreement. The primary personnel responsible for the completion of the work
described in this Agreement shall be Greg Sellers.
3. Scope of W ork: CONSULT ANT shall perform the services as specified in Exhibit A in a
professional manner.
4. Term: The services of CONSULTANT are to commence effective March 1,2006 and
shall continue until the earlier of (i) October 31, 2006, (ii) the date that the legislation that
is described in Exhibit A is signed by the Governor or allowed to become law without the
Page 1 of 5
Governor's signature, or (iii) at the close ofthe 2005-2006 Legislative Session if the
legislation described in Exhibit A has not been adopted by the Legislature. Time is of the
essence in the performance of this Agreement. No waiver by either party hereto ofthe
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 and no waiver by any party shall be attributable to any
other party.
5. Compensation: CONSULTANT shall accept compensation for services performed as
set forth in Section 3 in an amount not to exceed $4,000 per month. The total amount
paid shall not exceed $32,000 except as described below. Each City/Town shall be
responsible for a share of the monthly cost as follows:
City
Cupertino
Saratoga
Los Altos Hills
Monte Sereno
Percentage Share
53%
30%
10%
8%
Monthly Amount
$2,111
$1,190
$ 389
$ 310
In addition, in reflection of the low rate charged by consultant for the services described
in Exhibit A and as an incentive for effective performance, CONSULTANT shall be paid
a success fee of $50,000 if the legislation described in Exhibit A becomes law during the
term of this Agreement. Each City/Town shall pay its share of the success fee in the
percentage shown above within 45 days of the date on which the City/Town receives its
first payment of funds pursuant to the legislation described in Exhibit A. No City/Town
shall be responsible for the monthly payment share or success fee share of any other
City/Town. Periodic payments to CONSULTANT shall be made upon submittal of
invoices by CONSULTANT to each City/Town 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 harmless, indemnify and defend CITIES and
each ofthem, their 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 CONSULTANT 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 of them 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 or any of them.
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
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termination, CONSULTANT shall be entitled to compensation for the portion of the
month in which the termination occurs frior to the date of termination (e.g., if
termination become effective on the 1St day of a month with 30 days, CONSULTANT
shall be entitled to one halfthe monthly compensation). In the event of termination,
CONSULTANT shall deliver 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 ofthis Agreement.
8. Documents: 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 final 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 upon
expiration or termination of this Agreement.
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, workers compensation
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 federal laws 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 CONSULT ANT 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
CONSULTANT. Assignments of any or all rights, duties or obligations of the
CONSULTANT under this Agreement will be permitted only with the express consent of
the CITIES. CONSULT ANT shall not subcontract any portion ofthe 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.
Page 3 of5
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
as set forth below.
CONSULTANT:
Greg Sellers
S ALTOS HILLS
By: Greg Sellers, Sellers Associates
CITIES:
CITIES:
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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 prov~sion 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
as set forth below.
)
ellers, Sellers Associates
S ALTOS HILLS
CITIES:
CITIES:
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