16-118 Michael Bench, On-Call Arborist Review ServicesAGREEMENT BET\VEEN THE CITY OF CUPERTINO AND MICHAEL
BENCH 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 Michael Bench,
a whose address is 7327 Langley Canyon Road, Prunedale, California 93907 (hereinafter
referred to as "Consultant") (collectively referred to as the "Paiiies").
RECITALS:
A. City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to caiTy on its business as it is now being
conducted under the Constitution and the statutes of the State of California and the
Cupe1iino 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, experience, ability, background, certification
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 arborist review
services for various development projects in the City of Cupertino upon the terms and
conditions herein.
NOW, THEREFORE, the Paiiies mutually agree as follows:
1. TERM
The te1m of this Agreement shall commence on July 1, 2016, and shall tenninate
on June 30, 2017, unless terminated earlier as set f01ih herein.
2. SERVICES TO BE PERFORMED
Consultant shall perfo1m each and every service set fo1ih in Exhibit "A", which is
attached hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services perfo1med pursuant to this Agreement
in a total amount not to exceed TWENTY THOUSAND dollars ($20 ,000.00) based on the
rates and tern1s set fo1ih 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 perfo1111 all services required by this Agreement in a maimer
conm1ensurate with the prevailing standards of like professionals in the San Francisco Bay
Pa ge I of 11
Arbor Resources (David Babbv ) "On -Call " Cont ract , FY 15 -16
Area and agrees that a ll services sha ll be performed by qualified and experie nced personnel
who are not emp loyed by the City nor have any cont ract ual re lati onsh ip with City.
6 . INDEPENDENT PARTIES
City and Consu lt ant intend that the relationship between them created by this
Agreement is that of independent contractor. The manner and means of
conduct in g the work are under the control of Consu lt ant, except to the extent they are
limited by statute , rule or regulation and the express terms of this Agreement. No civi l
service status or other right of employment wi II be acquired by virtue of Consu lt ant's
se rvices. None of the benefits provided by City to its emplo yees, including but not limited
to, unemplo yment insurance, wo rker s' compe nsation plans, vacation and sick leave are
available from City to Consultant, its empl oyees or agents. Deductions sha ll not be made
for any state or federa l taxes, FICA payments, PERS payments , or other purposes normally
associated with an emp loyer-emp loyee relationship from any fees due Consu ltant.
Payments of the above items , ifrequired, are the responsibility of Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA)
Consultant assumes any and a ll responsibility fo r verifying the identity and
employment authorization of all of his /her emp loyees performing work hereunder,
pursuant to all app li cable !RC A or other federal , or state rules and re gulations. Consu ltant
shall indemnify and ho ld City harmless from and against any loss, damage , li ability , costs
or expenses arising from any noncomp li ance of this provision by Consu lt ant.
8 . NON-DISCRIMINATI ON
Consistent with City's polic y prohibiting harassment and discrimination ,
Co nsultant agrees that it shall not harass or discriminate against a job app li cant , a City
employee, or a citizen by Consulta nt or Consultant's emp loyee or subcontractor on the basis
ofrace, religious creed, color, nati ona l origin, ancestry, handicap, disability , marital status,
pregnancy , sex , age , sexual orientation, or any other protected class. Consu lt ant agrees that
any and all violations of this provision sha ll constitute a material breach of this Agree ment.
9. HOLD HARMLESS
IZI Standard Indemnification:
Consultant shall, t.o the fullest extent allowed by la w and without limitation of the
provisions of this Agreement related to in surance, w ith respect to all services performed in
connection with the Agreement, ind emnify , defend , and hold harmless the City and its
officers, officia ls, agents , employees and volunteers from and against any and a ll liabilit y,
c laims, actions , ca uses of action or demands whatsoever against any of them , including
any injury to or death of any person or damage to prope1ty or ot her li abi lit y of any nature,
w het her physical, emotiona l, consequential or ot herwise, arising out, pertaining to, or
related to the negligent performance of this Agreeme nt by Consultant or Cons ult ant's
emp lo yees, office rs, officia ls, agents or independent contractors. Suc h costs and expenses
shall include reasonable attorneys' fees of co un se l of City's cho ice , expert fees and a ll
other costs and fees of litigation. The acceptance of the Services by City sha ll not operate
as a waiver of the right of indemnification . The provisions of this Section survive the
completion of the Services or termination of this Contract.
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Arbor Resources {David Babby) "O n -Call" Contract, FY 15-1 6
10. INSURANCE:
A. General Requirements . On or before the commencement of the tenn 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 ce1tificates , which do not
limit Consultant's indemnification, shall also contain substantially the following statement:
"Should any of the above insurance co v ered by this ce1tificate be canceled or coverage
reduced before the expiration date thereof, the insurer affording coverage shall provide
thi1ty (30) days' advance written notice to the City of Cupe1tino by ce1tified mail, Attention:
City Manager." Consultant shall maintain in force at all times during the perfo1mance 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 ce1tificates.
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 vi1tue of the payment of any loss under such
msurance.
C . Failure to secure or maintain insurance. If Consultant at any time during the
tem1 hereof should fail to secure or maintain the foregoing insurance, City shall be
permitted 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 pe1mitted 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 conunissions,
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 a s such additional
insured. An additional insured named herein shall not be held liable for any premium,
deductible p01tion 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 determine 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
insured City. Fmthennore, the requirements for co verage and limits shall be the minimum
Pa ge 3 of 11
/>.rbor Resources (Dav id Babby) "On -Call" Contract , FY 15-16
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 wanants that it presently has no interest, and will not acqu ire any
interest , direct or indirect, financial or otherwise , that would conflict in any way with the
perforn1ance of this Agreement, and that it will not employ any person having such an
interest. Consultant agrees to advise City inunediately if any conflict arises and understands
that it may be required to fill out a conflict of interest f01m if the services provided under
this Agreement require Consultant to make certain goverrunental decisions or serve in a
staff capacity as defined in Title 2 , Division 6, Section 18 700 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 prior
written consent of City. Any attempt to do so without said consent shall be null and void ,
and any assignee, subless ee, hypothecate or transferee shall acquire no right or interest by
reason of such att empted assignment, hypothecation or transfer. Howe ver , claims for
money b y Consultant from City under this Agreement ma y be assigned to a bank, trust
company or other financi al institution without prior 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 partner or joint
venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or
syndicate or cotenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment of this Agreement. Control means fifty percent (50%) or more
of the voting power of the corporation.
13 . SUBCONTRACTORAPPROVAL
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 perfornrnnce of this Agreement.
In the event that Consultant employs subcontractors , such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to
caITy general , automobile and professional liability insurance in reasonable conformity to
the insurance canied 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 indenmity and insurance
requirements to the extent they apply to the scope of the subcontractor 's work.
Subcontractors hired b y 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 further agrees to include these same provisions with any sub-subcontractor.
A cop y of the Owner Contract Document Indenu1ity and Insurance pro visions will be
Page 4 of 1 r
Arbor Resources (David Babbyl "On-Call " Contract, FY 15-16
furnished to the subcontractor upon request. Consultant shall require all subcontractors to
provide a valid ce1tificate of insurance and the required endorsements included in the
agreement p1ior to conunencement 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 tenn of
this Agreement, all appropriate pe1mits , ce1tificates and licenses including, but not limited
to, a City Business License, that may be required in connection with the perfornrnnce of
services hereunder.
15. REPORTS
A. Each and every rep01t, draft , work product, map, record and other
document, hereinafter collectively refeITed to as "Rep01t", reproduced, prepared or caused
to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the
exclusive prope1ty of City. Consultant shall not copyright any Repo1t required by this
Agreement and shall execute appropriate documents to assign to City the copyright to
Rep01ts created pursuant to this Agreement. Any Repo1t , inf01mation and data acquired or
required by this Agreement shall become the prope1ty of City, and all publication rights
are reserved to City. Consultant may retain a copy of any repo1t furnished to the City
pursuant to this Agreement.
B . All Repo1ts 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 01iginal 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
repo1ts concerning the status of services required under this Agreement.
D. All Rep01ts required to be provided by this Agreement shall be printed on
recycled paper. All Repo1ts shall be copied on both sides of the paper except for one
original, which shall be single sided.
E. No Repo1t , inf01mation 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 inf01mation required by City that relate to the
perf01mance of services under this Agreement, in sufficient detail to pern1it 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
transc1ipts therefrom as necessary, and to allow inspection of all work, data , documents ,
proceedings and activities related to this Agreement. Such records , together with
suppo1ting documents, shall be kept separate from other documents and records and shall
be maintained for a pe1iod of three (3) years after Consultant receiv es final payment from
Pa ge 5 of 11
Arbor Resources (Davi d Babby) "On -Call " Contract , FY 15 -16
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 Cupe11ino Municipal Code
and Agreement will te1minate without any penalty (a) at the end of any fiscal year in the
event that funds are not appropriated for the following fiscal year, or (b) at any time within
a fiscal year in the event that funds are only appropriated for a p011ion 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, tern1, 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 cai1ridges ;
• 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 writing 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 ToITe Ave.
Cupertino CA 95014
Attention: Aarti Shrivastava Assistant City Manager
TO CONSULT ANT:
Michael Bench, Consulting Arborist
7327 Langley Canyon Road
Prunedale, CA 93907
Pa ge 6 of! I
.Z\rbor Resources (David Babby) "On-Call " Contract , FY 15-16
20. TERMINATION
In the event Consultant fails or refuses to perfo1m any of the provisions hereof at
the time and in the manner required hereunder, Consultant shall be deemed in default in
the perf01mance 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 may
tern1inate the Agreement by giving Consultant written notice thereof, which shall be
effective immediately. The City Manager shall also have the option, at its sole discretion
and without cause, of tenninating this Agreement by giving seven (7) calendar days' prior
written notice to Consultant as provided herein. Upon receipt of any notice of te1mination,
Consultant shall immediately discontinue perfo1mance.
City shall pay Consultant for services satisfact01ily perf01n1ed up to the effective
date ofte1mination. If the te1mination if for cause, City may deduct from such payment the
amount of actual damage, if any, sustained by City due to Consultant's failure to perf01m
its material obligations under this Agreement. Upon tennination, Consultant shall
immediately deliver to the City any and all copies of studies, sketches, drawings,
computations, and other material or products , whether or not completed, prepared by
Consultant or given to Consultant, in connection with this Agreement. Such materials shall
become the property of City.
21. COMPLIANCE
Consultant shall comply with all state or federal laws and all ordinances, rnles,
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 rnles which may direct the application of laws of
another jurisdiction. The Agreement and obligations of the paities are subject to all valid
laws, orders, rnles, and regulations of the authorities having jurisdiction over this
Agreement (or the successors of those authorities). Any suits brought pursuant to this
Agreement shall be filed with the Superior Comt of the County of Santa Clara, State of
California.
23. ADVERTISEMENT
Consultant shall not post, exhibit, display or allow to be posted, exhibited ,
displayed any signs, adve1tising , show bills , lithographs, posters or cards of any kind
pe1taining to the services perforn1ed under this Agreement unless prior written approval
has been secured from City to do otherwise.
24 . 'VAIVER
A waiver by City of any breach of any te1m, covenant, or condition contained herein
shall not be deemed to be a waiver of any subsequent breach of the same or any other tenn,
co v enant, or condition contained herein, whether of the same or a different character.
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Arbor Resources (Davi d Babby) "On -Call " Contract , FY 15-16
25. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Pmiies , 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 pm1ies have caused the Agreement to be executed.
CONSULTANT
Michael Bench
APPROVED AS TO FORJv1
city Attorney
AT;:EST: r/J.
~fl
City Clerk '1 < r-ff.O
Pa ge 8 o f11
Pxbor Resources (David Babby) "On-Call " Contract , FY 15-16
CITY OF CUPERTINO
A Municipal Corporation
By ~~~
Title ,l!iSJ/ Mtll6L
Date tJ J /tJ I /JI.
12<:1 Up to $45 ,000-DeSigi;ated Supervi sor Approval Required
RECOMMENDED FOR APPROVAL
B
Contract No.
Exhibits: (C h ec k box fo r ex hi b its that appl y to thi s contract and attach)
!Zl E xhibit "A"-Scope of Services , Schedule of Perf01mance and Compensation
D Exhibit "B"-Schedule of Perfomrnnce
D Exhibit "C" -Compensation
!Zl Exhibit "D "-Insurance Requirements and Proof of Insurance
D Exhibit "E"-Mandated Rep011ing Acknowledgement
D Exhibit "F"-Background/Fingerprint/TB Declaration
D Exhibit "G "-Nondiscrimination-State/Federal /HUD funded project
D Exhibit "H " -Request for City Manager to Waive Informal Bidding Requirements
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER AMOUNT
PO #2 017-~ ~3'
A ccount #: 100-71-701 ~-1"?)~ $20,000.00
Total: $20,000.00
9
Cupertin o Standard Form Contrac1-updatcd 2 :mis
Contract No. d.. 0 ( 1-... .;;l~?
Exhibit A
Scope of Services, Schedule of Performance and Compensation
I. Scope of Services: Consultant shall provide arbor review services as requested by City
for various development projects in Cupertino , (the "Project ").
Staff assigned to the Project by Consultant shall be preapproved by the City of Cupertino
Assistant Director of the Community Development Department, and shall be removed
immediately upon City 's request and replaced with an approved substitute .
II. Compensation:
City shall compensate Consultant for professional services in accordance with the terms 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 forth below up to the not to
exceed budget amount set forth below.
The compensation to be paid to Consultant under this Agreement for all services described under
Section 1 of this Exhibit and reimbursable expenses shall not exceed a total of TWENTY
THOUSAND DOLLARS ($20 ,000.00). Any \·Vork performed or expenses incurred for which
payment wo uld re sult in a total exceeding the maximum amount of compensation set forth her ein
shall be at no cost to the City .
fil Rates:
Hourly Rate : $180 /hour , not to exceed $2 0,000
IV . Title: Development projects in Cupertino
V. Invoices
In order to request pa yment, Consultant shall submit monthly invoices to the CITY describing
the services performed and the applicable charges (including a summary of work performed
during that quarter , personnel who performed the services, hours worked , task(s) for which work
was performed).
VI. Reimbursable Expenses
Normal project related reimbursable expenses such as printing, postage , delivery services,
long distance phone calls , facsimile transmissions , mileage , and special project-related
supplies.
VII. Additional Services
Consultant shall provide additional services outside of the services identified in Ex hibit 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 deta il ed written
proposal including a description of the scope of additional services, schedule , and proposed
maximum compensation.
10
Cupc1t mo S1ru1dar<l Fonn Contr:1ct-11pd:1ll"t1 2120 15
Contract No. J.. {)I ~,.'Jo ";3
Exhibit D
Insurance Requirements and Proof of Insurance
Proof of insurance coverage described below is attached to this E xhibit, 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) Liability:
Commercial general liability co v erage in the following minimum limits:
Bodily Injury: $500 ,000 each occurrence
$1,000 ,000 aggregate -all other
Prope1iy Damage: $100 ,000 each occmTence
$250 ,000 aggregate
If submitted, combined single limit policy w ith aggregate limits in the
amounts of $1,000 ,000 will be considered equiv alent to the required
minimum limits shown above.
(3) Automotive:
(4)
Comprehensive automotiv e liability coverage in the following minimum limits:
Bodily Injury: $500 ,000 each occurrence
Prope1iy Damage: $100 ,000 each occmTence
or
Combined Single Limit: $500 ,000 each occmTence
Professional Liability
Professional liability insurance which includes cov erage for the professional acts ,
errors and omissions of Consultant in the amount of at least $1,000 ,000.
11
Cupcnin o Standard Fonn Comra ct -updatcd 2 .2015