CITY OF PLACENTIA
PROFESSIONAL SERVICES AGREEMENT
WITH
LASTING IMAGES LANDSCAPE
THIS AGREEMENT is made and entered into this 21ST day of November, 2023 ("Effective Date"), by and between the CITY OF PLACENTIA, a municipal corporation ("City"), and Lasting Images Landscape, a California corporation ("Consultant").
WITNESSETH:
A. WHEREAS, City proposes to utilize the services of Consultant as an independent contractor to provide professional arborist consulting services as more fully described herein; and
B. WHEREAS, Consultant represents that it has that degree of specialized expertise contemplated within California Government Code Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, City and Consultant desire to contract for the specific services described in Exhibit "A" (the "Project") and desire to set forth their rights, duties and liabilities in connection with the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described in Consultant's Proposal ("Proposal"), attached hereto as Exhibit "A" and incorporated herein by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement. Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. Officers and employees shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this section.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to the complete satisfaction of the City and within the hereinafter specified. Evaluations of the work will be done by the City Administrator or his or her designee. If the quality of work is not satisfactory, City in its discretion has the right to:
(a) Meet with Consultant to review the quality of the work and resolve the matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Such actions shall include, but not be limited to the following:
employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Consultant agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause.
Consultant shall, in all solicitations and advertisements for employees placed by, or on behalf of Consultant shall state that all qualified applicants will receive consideration for employment without regard to age, race, color, religion, sex, marital status, national origin, or mental or physical disability. Consultant shall cause the paragraphs contained in this Section to be inserted in all subcontracts for any work covered by the Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.
1.6. Non -Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Consultant may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Consultant's sole cost and expense. All insurance requirements contained in this Agreement are independently applicable to any and all subcontractors that Consultant may engage during the term of this Agreement.
1.8. Confidentiality. Employees of Consultant in the course of their duties may have 2 Rev. 08/2017
access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the fee schedule set forth in Exhibit "A." Consultant's total compensation shall not exceed Three Hundred Fifty Thousand Dollars ($ 350,000.00).
2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in the Consultant's Proposal or which is inconsistent with or in violation of the provisions of this Agreement unless the City or the Project Manager for this Project, prior to Consultant performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
Should the City request in writing additional services that increase the hereinabove described "SCOPE OF SERVICES", an additional fee based upon the Consultant's standard hourly rates shall be paid to the Consultant for such additional services.
2.3. Method of Billing. Consultant may submit invoices to the City for approval on a progress basis, but no more often than two times a month. Said invoice shall be based on the total of all Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City receives said invoice.
Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times for a period of three (3) years from the Effective Date.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Said services shall be performed in strict compliance with the Project Schedule approved by City as set forth in Exhibit "A." The Project Schedule may be amended by mutual agreement of the parties. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party. If a delay beyond the control of the Consultant is encountered, a time 3 Rev. 08/2017
extension may be mutually agreed upon in writing by the City and the Consultant. The Consultant shall present documentation satisfactory to the City to substantiate any request for a time extension.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue for a period of three years, ending on October 3, 2026, unless previously terminated as provided herein or as otherwise agreed to in writing by the parties. One (1) two-year extension is available on Consultant performance and at the discretion of the City. Approval of the term extension is contingent upon City Council review and approval at the conclusion of the initial three-year term.s
4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing at least fifteen (15) days prior written notice to Consultant. The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City. If the City suspends, terminates or abandons a portion of this Agreement such suspension, termination or abandonment shall not make void or invalidate the remainder of this Agreement.
If the Consultant defaults in the performance of any of the terms or conditions of this Agreement, it shall have ten (10) days after service upon it of written notice of such default in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
The City shall have the right, notwithstanding any other provisions of this Agreement, to terminate this Agreement, at its option and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement, immediately upon service of written notice of termination on the Consultant, if the latter should:
a. Be adjudged a bankrupt;
b. Become insolvent or have a receiver of its assets or property appointed because of insolvency;
c. Make a general assignment for the benefit of creditors; d. Default in the performance of any obligation or payment of any indebtedness under this Agreement;
e. Suffer any judgment against it to remain unsatisfied or unbonded of record for thirty (30) days or longer; or
f. Institute or suffer to be instituted any procedures for reorganization or rearrangement of its affairs.
4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including 4 Rev. 08/2017
the date of City's written notice of termination within thirty-five (35) days after service of the notice of termination. Compensation for work in progress shall be prorated based on the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant. City shall not be liable for any claim of lost profits.
4.4. Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shall be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at City's sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and keep in full force and effect during the life of this Agreement all the following minimum scope of insurance coverages with an insurance company admitted to do business in California, rated "A," Class X, or better in the most recent Best's Key Insurance Rating Guide, and approved by City:
(a) Broad -form commercial general liability, in a form at least as broad as ISO from #CG 00 01 04 13, including premises -operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury or bodily injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or shall be twice the required occurrence limit. If Consultant maintains higher limits that the specified minimum limits, City requires and shall be entitled to coverage for the high limits maintained by the Consultant.
(b) Business automobile liability for owned vehicles, hired, and non -owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, each incident for bodily injury and property damage.
(c) Workers' compensation insurance as required by the State of California and Employers Liability Insurance with a minimum limit of $1,000,000 per accident for any employee or employees of Consultant. Consultant agrees to waive, and to obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City, its officers, agents, employees, and volunteers for losses arising from work performed by Consultant for the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. 5 Rev. 08/2017
Before execution of this Agreement by the City, the Consultant shall file with the Public Works Director/City Engineer the following signed certification:
I am aware of, and will comply with, Section 3700 of the Labor Code, requiring every employer to be insured against liability of Workers' Compensation or to undertake self-insurance before commencing any of the work.
The Consultant shall also comply with Section 3800 of the Labor Code by securing, paying for and maintaining in full force and effect for the duration of this Agreement, complete Workers' Compensation Insurance, and shall furnish a Certificate of Insurance to the Public Works Director/City Engineer before execution of this Agreement by the City.
The City, its officers and employees shall not be responsible for any claims in law or equity occasioned by failure of the consultant to comply with this section.
Neither the CITY nor any of its elected or appointed officials, officers, agents, employees, or volunteers makes any representation that the types of insurance and the limits specified to be carried by Consultant under this Agreement are adequate to protect Consultant.
If Consultant believes that any such insurance coverage is insufficient, Consultant shall provide, at its own expense, such additional insurance as Consultant deems adequate.
5.2. Endorsements. The commercial general liability insurance policy and business automobile liability policy shall contain or be endorsed to contain the following provisions as worded below:
(a) Additional insureds: "The City of Placentia and its elected and appointed boards, officers, officials, agents, employees, and volunteers are addition- al insureds with respect to: liability arising out of activities performed by or on behalf of the Consultant pursuant to its contract with the City; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; automobiles owned, leased, hired, or borrowed by the Consultant."
(b) Notice: "Consultant shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self-insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Consultant shall forthwith obtain and submit proof of substitute insurance. Should Consultant fail to immediately procure other insurance, as specified, to substitute for any canceled policy, the City may procure such insurance at Consultant's sole cost and expense."
(c) Other insurance: "The Consultant's insurance coverage shall be primary insurance as respects the City of Placentia, its officers, officials, agents, employees, and volunteers. Any other insurance maintained by the City of Placentia shall be excess and not contributing with the insurance provided by this policy."
6 Rev. 08/2017
(d) Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City of Placentia, its officers, officials, agents, employees, and volunteers.
(e) The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
5.3. Deductible or Self -Insured Retention. If any of such policies provide for a deductible or self-insured retention to provide such coverage, the amount of such deductible or self-insured retention shall be approved in advance by City. No policy of insurance issued as to which the City is an additional insured shall contain a provision which requires that no insured except the named insured can satisfy any such deductible or self-insured retention.
5.4. Certificates of Insurance. Consultant shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. The certificates of insurance and endorsements shall be attached hereto as Exhibit "B" and incorporated herein by this reference.
5.5. Non -limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Consultant may be held responsible for payments of damages to persons or property.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
6.2. Representatives. The City Administrator or his or her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Proiect Managers. City shall designate a Project Manager to work directly with Consultant in the performance of this Agreement. It shall be the Consultant's responsibility to assure that the Project Manager is kept informed of the progress of the performance of the services and the Consultant shall refer any decision, which must be made by City, to the Project Manager. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Project Manager.
Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement and who shall not be 7 Rev. 08/2017
changed by Consultant without the express written approval by the City. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement, or the work hereunder may be provided by personal delivery, facsimile or if mailed, shall be addressed as set forth below and placed in a sealed envelope, postage prepaid, and deposited in the United States Postal Service. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 72 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail.
IF TO CONSULTANT:
Lasting Images Landscape
4195 Chino Hills Parkway, Suite
E212
Chino Hills, CA 91709
Tel: 909-851-3393
Attn: David Niznik
IF TO CITY:
City of Placentia
401 E. Chapman
Placentia, CA 92870
Tel: 714-993-8132
Attn: Chris Tanio
6.5. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof.
6.6. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California. Consultant agrees to submit to the personal jurisdiction of such court in the event of such action.
6.7. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement.
6.8. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, hold free and harmless the City, its elected and appointed officials, officers, agents and employees, at Consultant's sole expense, from and against any and all claims, demands, actions, suits or other legal proceedings brought against the City, its elected and appointed officials, officers, agents and employees arising out of the performance of the Consultant, its employees, and/or authorized subcontractors, of the work undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence, recklessness, or willful misconduct by the Consultant, its employees, 8 Rev. 08/2017
and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, recklessness, or willful misconduct of the Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected and appointed officials, officers, agents and employees based upon the work performed by the Consultant, its employees, and/or authorized subcontractors under this Agreement, whether or not the Consultant, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City. This provision shall supersede and replace all other indemnity provisions contained either in the City's specifications or Consultant's Proposal, which shall be of no force and effect.
6.9. Independent Contractor. Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its or employees are in any manner agents or employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Consultant shall indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with the applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this paragraph.
6.10. PERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or 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 the City, Consultant shall indemnify, defend, and hold harmless City 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 as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
6.11. Cooperation. In the event any claim or action is brought against City relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require. 9 Rev. 08/2017
6.12. Ownership of Documents. All findings, reports, documents, information and data including, but not limited to, computer tapes or discs, preliminary notes, working documents, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City but shall be made available to the City within ten (10) days of request or within ten (10) days of termination. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from City's use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consultant.
Consultant shall deliver to City any findings, reports, documents, information, data, preliminary notes and working documents, in any form, including but not limited to, computer tapes, discs, files audio tapes or any other Project related items as requested by City or its authorized representative, at no additional cost to the City. Consultant or Consultant's agents shall execute such documents as may be necessary from time to time to confirm City's ownership of the copyright in such documents.
6.13. Public Records Act Disclosure. Consultant has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
6.14. Conflict of Interest. Consultant and its officers, employees, associates and subconsultants, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Consultant and its officers, employees, associates and subconsultants shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subconsultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
6.15. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, then Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction.
10 Rev. 08/2017
6.16. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, the conflict shall be resolved by giving precedence in the following order, if applicable: This Agreement, the City's Request for Proposals, the Consultant's Proposal.
6.18. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
6.19. No Third Party Beneficiary Riahts. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
6.20. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
6.21. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.22. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6.23. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.24. Severabilitv. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith 11 Rev. 08/2017
negotiations.
6.25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
6.26. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written.
CITY OF PLACENTIA,
A municipal corporation
Damien R. Arrula, City Administrator
ATTEST:
Robert S. McKinnell, City Clerk
CONSULTANT — Lasting Images Landscape
Signature
David Ni zni k
David Niznik, Owner
620181267
Social Security or Taxpayer ID Number
APPROVED AS TO FORM:
Christian L. Bettenhausen, City Attorney
12 Date:
Date:
Date:
11/1/2023
Rev. 08/2017
APPROVED AS TO INSURANCE:
Krystle Murillo, Risk Manager
APPROVED AS TO CONTENT:
C, Lias tavutO
Chris Tanio, Deputy Director/City Engineer
DEPARTMENTAL APPROVAL:
Date:
Date:
11/1/2023
(,ws 'eSL 11/1/2023
Date:
Luis Estevez, Deputy City Administrator
13 Rev. 08/2017
EXHIBIT A
CONSULTANT'S PROPOSAL AND SCOPE OF WORK
14 Rev. 08/2017
EXHIBIT B
CERTIFICATES OF INSURANCE AND ENDORSEMENTS
15 Rev. 08/2017
David Niznik
DBA: Lasting Images Landscape
4195 Chino Hills Parkway, Ste. E212
Chino Hills, CA 91709
(909) 851-3393
dnizni cuverizon.net
REQUEST FOR QUALIFICATIONS FOR ON-CALL ARBORIST SERVICES Date/Time Due: October 19, 2023 by 2:OOPM
Submitted to:
City of Placentia
401 East Chapman Avenue
Placentia, CA 92870
Submitted by:
David Niznik
Signature/Date
Prepared October 16-18, 2023
1 RFQ Format
1. Required Statements
2. Executive Summary
3. Project Team Organization
4. Relevant Project Experience and References
5. Project Understanding and Approach/Scope of Work
6. Exceptions
7. Resource Allocation and Cost Proposal
2 1. REQUIRED STATEMENTS
David Niznik makes the following statements regarding this RFQ:
• Our firm will perform on-call arborist services per the scope of work and adhere to the requirements described in this RFQ, including any addenda. • Our firm would like to request the Cost Proposal not to be released as public information as this is proprietary.
• Our firm will not substitute arborist or team members without prior approval by the City of Placentia.
• There are no conflicts of interest for this RFQ.
• There is no collusion regarding this RFQ.
• Our firm carries Commercial General Liability Insurance 1M/2M, Workers Compensation Insurance 1M, Automobile Insurance 1M, and Pollution Liability Insurance 1M/2M.
2. EXECUTIVE SUMMARY
Lasting Images Landscape has been contracting nearly 20 years (since 2004) with its license, C-27# 849597. I, David Niznik, founded the company after working for four years for a large landscaping firm in south Orange County. While working in south OC from 2000-2004, I formed many relationships as we were under contract with the cities of Mission Viejo, Laguna Niguel, Laguna Hills, Lake Forest and many private HOAs.
As a licensed contractor, we are currently contracting with CALTRANS, CSULA, City of Hesperia, CALFIRE and hold a "landscape consulting" agreement with the City of Redlands. We also work with Ronald McDonald House Charities.
Qualifications:
• ISA Certified Arborist #WE -12290A, since 2018
• Qualified Applicators License (QAL) Category B, since 2016 • C-27 Landscape Contractor, since 2004
• UCANR "Landscape Professional in Water Quality Protection" • Business management degree obtained at BIOLA University. Bachelor's degree in organizational leadership.
Experience:
Almost 25 years in the landscape (horticulture) and arboricultural industry.
Memberships:
• ISA
• WCISA
3 • PAPA (Pesticide Applicators Professional Association)
3. PROJECT TEAM ORGANIZATION
David Niznik would be the consulting arborist for the City of Placentia. With my experience contracting with, and working for, other municipalities, I feel this would be beneficial to the City to fulfill the requirements of this RFQ. Resume attached.
4. RELEVANT PROJECT EXPERIENCE AND REFERENCES
David Niznik, as City staff, has managed City trees for two Orange County cities: Laguna Niguel and Yorba Linda (^'22,000 trees in the LMAD). Also, was the Parks Supervisor and City Arborist for the City of South Pasadena (^'11,000 trees city owned, ^'21,000 city-wide). The City of South Pasadena has a "Tree City USA" designation and trees are very precious in this City. In summary, I have 5 years of experience working as municipal staff and almost 20 years contracting with various government agencies.
1. City of Laguna Niguel, (2015-2017) 30111 Crown Valley Parkway, Laguna Niguel, CA 92677. Jerry Sollom was my supervisor. (949) 362-4337. As Landscape Inspector, I managed all City trees and scheduled maintenance through WCA's Arbor Access software. Worked with the public to handle tree trimming and removal requests.
2. City of South Pasadena, (2017-2019)1414 Mission St., South Pasadena, CA 91030.
Kristine Courdy was my supervisor. (626) 403-7240. As Parks Supervisor and City Arborist, I managed all the City landscapes and trees including parks, medians, greenbelts, slopes, right of ways, and open spaces. Including managing the City's Urban Forest. WCA was our contractor and worked closely with them to achieve desired goals.
3. City of Yorba Linda, (2019-2020) 4845 Casa Loma Ave., Yorba Linda, CA 92886. Jesse Gutierez was my supervisor in the LMAD division. (714) 961-7100. As Landscape Inspector, I managed all landscapes in my assigned areas and managed all of the near 22,000 city owned trees in the LMAD.
People often ask why I left the City work. I am married and have 4 children in school. In 2020 when COVID hit, my kids were sent home. After a discussion with my wife, we thought it best if we ran our business full-time to give me the flexibility to help her with our children. Every move made in the Public Works arena was for an increase in pay, and eventually working for the neighboring City to Chino Hills.
4 5. PROJECT UNDERSTANDING AND APPROACH/SCOPE OF WORK
As consulting arborist for the City of Placentia, the following would be included in our consulting services:
• On-site inspections and evaluation reports
• Reports for tree permits
• Post -fire tree evaluations
• Invasive plant management
• Nesting wildlife identification (biologist confirmation fees extra) • Tree identification and care
• Tree planting and relocation specifications
• Tree inventory accuracy (vacant sites)
• Data preparation and analysis
• Construction monitoring
• Pian review (tree impacts)
• Tree assessment and valuation
• Tree branch/leaf/bark/soil sample sent to Waypoint Analytical for lab work (fees extra)
• Assist in Arbor Day activities such as City Tree Planting Days As consulting arborist, we would adhere to all facets of the scope of work provided in the RFQ.
6. EXCEPTIONS
The only exception is I would ask for 12 months to get my TRAQ certification as requested in the RFQ.
ENCLS:
1. Resume
2. ISA Certification Continuing Education course completions.
3. Samples of two basic arborist reports. One for CSULA and one for the City of Redlands. 5 7. RESOURCE ALLOCATION AND COST PROPOSAL
Costs included in arborist consulting services included in hourly rates: inspection, reports, all facets of scope of work, travel and trip expenses, general and administrative expenses.
Costs not included would be: lab costs by Waypoint Analytical, biologist reports, or any other items outside of the scope of work. Costs would be given to the City for reimbursement with 15% addition to the receipts.
Arborist consulting services hourly rate $60.00 per hour Thank you,
161107-s
David Niznik, Owner, Lasting Images Landscape
6 3395 Bayberry Dr. (909)-851-3393 cell
Chino Hills, CA 91709 [email protected]
David A. Niznik
2004 -Present Lasting Images Landscape
Contractor; Arborist; Qualified Applicator
• Business planning/development
• General management of company
• Establish and maintain contracts
• Supervise employees, maintain OSHA safety program
• Successfully completed over 10 million dollars in landscape contract work
Chino Hills, CA
2019-2020 City of Yorba Linda Yorba Linda, CA
Landscape Inspector/Arborist
• Managed tree inventory; coordinate with WCA (vendor) for tree care services; provide arborist reports
• Inspect landscape and irrigation in assigned areas throughout the City
• Conduct walks with contractors, develop punch lists, ensure adherence to contract specifications
• Approve and verify vendor invoices and process
2017-2018 City of South Pasadena South Pasadena, CA
Parks Supervisor/City Arborist
• Managed city tree inventory; coordinate with WCA (vendor) for tree care services; provide arborist reports
• Attend commission meetings related to tree removals
• Coordinate with local non-profit, South Pasadena Beautiful, to conduct tree plantings and landscape projects
• Coordinate with sports leagues for city sports fields use • Inspect landscape and irrigation in assigned areas throughout the City
• Conduct walks with contractors, develop punch lists, ensure adherence to contract specifications
• Approve and verify vendor invoices and process
2015-2017 City of Laguna Niguel Laguna Niguel, CA
Landscape Inspector
• Managed tree inventory; coordinate with WCA (vendor) for tree care services; obtain arborist reports
• Inspect landscape and irrigation in assigned areas throughout the City
• Conduct walks with contractors, develop punch lists, ensure adherence to contract specifications
• Approve and verify vendor invoices and process
2000-2004 SpectrumCare Landscape
Superintendent/Account Manager
• Managed $1,5 million dollars in accounts per year
• Supervised 30-40 employees
• Implemented safety program, reducing accidents on the job • Led safety meetings for company of 220 people per OSHA compliance
• Delivered presentations at board meetings on key accounts • Fleet management
Lake Forrest, CA
1992-1999 United States Army
Staff Sergeant/ Non -Commissioned Officer
Various States, USA
• Developed and trained 12-40 soldiers in all facets of the military • Delivered presentations at staff meetings
• Key instructor on special military tactics
• Encouraged personal growth and development in subordinates December 2012 Biola University La Mirada, CA
• Bachelor of Science, Organizational Leadership
June 1999
Cochise College Sierra Vista, CA
• Associate in Arts, General Studies
• Honor Graduate
1996 Basic Non -Commissioned Officers Course
Columbia, SC
1994 Primary Leadership Development Course
Tacoma, WA
C-27 Landscape Contractor; Qualified Applicators License; Pest Control Business License; Certified Arborist; Storm Water Pollution Prevention Program SWPPP Certified
David Niznik
David Niznik Arbonst Services
4195 Chino Hills Pkwy
Ste E212
Chino Hills CA 91709
UNITED STATES
Certified Arbonst
From:
Period of Certification 12/31/2021 To: 12/31/2024 12/31/2024 Extension Until:
Date CEU ID
Customer Service ID: 252651
CertificationlD: WE -12290A
Title CEU's Required for Recertification:
Credits
30.00 2/17/2023
WE -23-164
PAPA- Temecula Conference- Day 3
2.00 2/16/2023
WE -23-163
PAPA- Temecula Conference- Day 2
5,00
11/16/2022
PP -22-891
Lightning Round: Technology Update 9301005
0.50 11/16/2022
PP -22-893
A Model for How Non Profit Organizations can Initiate City Wide Change 930 1005
0.50 11/16/2022
PP -22-896
Many Voices tvlake for a Healthy Urban Forest 1120 1200
0.50 11/16/2022
PP -22-900
Washington Park Arboretum 1230-330
3.00 11/16/2022
11/16/2022
11/16/2022
PP -22-905
PP -22-908
PP -22-911
Financing the Urban Forest 830 1000
1.50 f Increasing Urban Forest Resiliency Through Greater Tree Diversity
0.50 Lightning Round Species Diversity 1115 1150
0.50 I
11/16/2022
PP -22-913
Lightning Round Municipal Forestry 100-135
0.50 11/16/2022
PP -22-914
Nature in Urban Planning for Better Human Health 145 220
0.50 11/16/2022
PP -22-919
Urban Tree Monitoring Best Practices for Municipalities
0.50 11/16/2022
PP -22-920
Storytelling in the Media
1.50 11/16/2022
PP -22-924
Welcome to Seattle
0.75 7/14/2022
WE -22-405
WTMS Summer 2022- Creative Approaches to Managing Trees in a
5.75 2/16/2022
WE -22-147
I
1 PAPA Multi Day Conference
7.00 Tv `� ME i,/IB E•RST- TT S
CSID 252651
Current W€emb rsh
ISA Professional Member Expires 11/7/2023 Renew
Western Chapter Membership Expires. 11/7/2023 Renew
%sn ivr'es"°.E t"3 ...
ISA Certified Arborist
Apply for an ISA Certification / Make Your Recertification Payment Code of Ethics Agreement
Exam
? }SA Certified Arboriste
MY CREDENTIALS
CERT ID: WE -12290A
Expires: 12/31/2024 View CEUs: 30.5
EXAM _RESULTS
CREDENTIAL EXAM RESULTS
.TS
Written Result Skills Result
Pass NA
Exam Date
8/9/2018
David A. Niznik
Lasting Images Landscape
Certified Arborist WE -12290A
Report for City of Redlands, Facilities and Community Services: ATTN: Don Craw 35 Cajon St., Suite 222, Redlands, CA 92373
Dated: November 30, 2022
David iliptik
Basic Tree Evaluation Report
Note: This evaluation is designed to be conducted quickly for cost effectiveness, using visual means of observation only. It is meant to provide basic information for future reference and to identify problems/deficiencies that might require more thorough evaluation. It is not intended to be a complete and comprehensive evaluation of the tree.
Scores are based on comparison to "average" conditions and characteristics. 4195 Chino Hills Parkway, Suite E212, Chino Hills, CA 91709 (909) 851-3393, [email protected]
Tree Evaluation
Inspection Date: November 29, 2022
Botanical Tree Name: Brahea armata
Common Tree Name: Mexican Blue Palm
D.B.H.: 20+ inches (visual check only)
Height: 12-15 feet tall
Canopy: "'12 feet wide
Location: Annexation 9
Photos:
Photo 1. Major lean.
Photo 2. Raised root plate
Photo 3. Healthy tree for comparison
Tree deficiencies: Primary root plate is lifted above grade. The primary root plate is the critical area that maintains the structural stability of the tree. Although the tree itself is healthy, with wet soil conditions and high winds, this tree can fail. lithe tree fails, the targets impacted may just be the median, but could also be the number one lane traveling east or west on Redlands Blvd.
Overall assessment: This tree has a high probability of failure with a significant wind, rain event. Recommend to notify the City's tree contractor for further assessment.
David A. Niznik
Lasting Images Landscape
Certified Arborist WE -12290A
Report for CSULA, Student Housing: ATTN: Mark Facio
5151 State University Dr, Los Angeles, CA 90032
Dated: July 20, 2021
Inspected by: David Niznik
Basic Tree Evaluation Report
Note: This evaluation is designed to be conducted quickly for cost effectiveness, using visual means of observation only. It is meant to provide basic information for future reference and to identify problems/deficiencies that might require more thorough evaluation. It is not intended to be a complete and comprehensive evaluation of the tree.
Scores are based on comparison to "average" conditions and characteristics. 4195 Chino Hills Parkway, Suite E212, Chino Hills, CA 91709 (909) 851-3393, [email protected]
Tree Evaluation
Inspection Date: July 14, 2021
Botanical Tree Name: Callistemon citrinus
Common Tree Name: Crimson Bottlebrush
D.B.H.: 19 inches
Height: 45-50 feet tall
Canopy: 25-30 feet wide
Location: In between units 119-120
Photos:
Tree deficiencies: The entire tree has a hard lean beginning at the truck, with major root pruning previously completed on this tree makes for a bad combination; this tree has poor structure and included bark, which leads to weak branch attachments and failures in the future; Codominant stems; Girdling roots at base of tree around trunk; weak apical control due to lack of strong leader; the primary root plate has been compromised due to the root pruning for walkway purposes; tree is susceptible to spider mites, mealybugs, and scales (would need further testing to ensure tree is pest free); pests increase under drought conditions.
Overall assessment: Over the years, "wrong tree, wrong place" refers to obvious places where the wrong tree was planted in the wrong place. In recent times, a push to plant the "right tree, in the right place" is becoming more common with landscapers and architects. This is a classic wrong tree, wrong place scenario as the root systems have been unable to grow as naturally intended due to the urban environment surrounding the tree. This tree should be removed.
7 ,ri DATE (MMIDDIYYYY(
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16620 SW Hargis Rd gooaess-._�Y ec
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Beaverton, OR 97007 INSURER(S) AFFORDING COVERAGE NAIC p INSURER A : Security National Insurance Company 19879
INSURED INSURER B : Evanston Insurance Company 35378
David A. Niznik dba Lasting Images Landscape INSURER C:
4195 Chino Hills Pkwy #212 INSURER D :
Chino Hills, CA 91709 INSURER E :
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A OFFICERiMEMBER EXCLUDED'?
(Mandatory In NH)
If yes, describe under
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YIN
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SWC1411583
SWC1464375
CPLMOL115397
jEACH OCCURRENCE .S
[DAMAGE-TO—RENTED
PREMISES (Ea occurrence) S
MED EXP (Any one person) 5
I PERSONAL Si ADV INJURY 5
GENERAL AGGREGATE $
I PRODUCTS -COMP/OP AGG $
COMBINED SINGLE LIMIT
(Ea accident) LS
BODILY INJURY (Per person) 5
BODILY INJURY (Per accident) S
PROPERTY DAMAGE S
(Per accidenlL
i (S
EACH OCCURRENCE S
AGGREGATEVI S
H-
11/14/2022 11/14/2023 !% LTORT_,IMLT - ER_._.
11/14/2023 11/14/2024 E.L. EACH ACCIDENT S 1,000,000
E.L. DISEASE - EA EMPLOYEE S 1.000,000
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02/15/2023 02/15/2025 General Aggregate $ 2,000,000
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401 E. Chapman Ave
Placentia. CA 92870
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