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BonTerra Consulting A2009-52 tog 63- CITY OF CHINO HILLS CONSULTING SERVICES AGREEMENT This Agreement is made and entered into as of July 1, 2009, between the CITY OF CHINO HILLS, a municipal corporation, hereinafter referred to as "City" and BonTerra Consulting, hereinafter referred to as "Consultant". In consideration of the mutual promises and covenants contained herein, the parties hereto mutually agree as follows: SECTION 1. RECITALS. This Agreement is made and entered into with respect to the following facts: a. That the City is desirous of obtaining the services of a qualified consultant to provide special project services to the City Manager, as directed; and b. That the City Manager of the City has determined that the public interest, convenience and necessity require execution of this Agreement. SECTION 2. SERVICES. Consultant shall perform tasks as specified in Exhibit "A" attached hereto and incorporated herein as directed by the City Manager or his/her designee. SECTION 3. PERFORMANCE. Consultant shall at all times faithfully, competently and to the best of his/her ability, experience, and talent perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services, as are required of Consultant hereunder in meeting his/her obligations under this Agreement. SECTION 4. EXTRA SERVICES. No extra services shall be rendered by Consultant under this Agreement unless such extra services first shall have been duly authorized in writing by the City. SECTION 5. CITY SUPERVISION. The City Manager, or his/her designee, shall have the right of general supervision of all work performed by Consultant and shall be the City's agent with respect to obtaining Consultant's compliance hereunder. No payment for any services rendered under this Agreement shall be made without the prior approval of the City Manager or his/her designee. SECTION 6. PAYMENT. The City agrees to pay Consultant at the hourly rate of$155.00 per hour, not to exceed $2,500.00. SECTION 7. SUSPENSION, TERMINATION OR ABANDONMENT OF AGREEMENT. Either the City or the Consultant may, with or without cause, at any time, suspend, terminate, or abandon this Agreement, or any portion hereof, 1 by service upon the other party at least thirty (30) days prior written notice. Upon receipt or delivery of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. Upon receipt or delivery of such notice, the Consultant shall immediately prepare and serve upon the City an invoice covering all completed work. Within thirty-five (35) days, the City shall approve such invoice and the amount of compensation, or the City shall provide the Consultant with a written statement objecting to the invoice. For incomplete tasks in progress as of the date of the giving of notice or termination by the City or Consultant, Consultant shall be compensated for actual costs that were performed as of the effective date of such notice. The City may immediately suspend, terminate or abandon this Agreement, or any portion hereof, without any prior notice to Consultant, for cause, by immediately serving Consultant with written or oral notice. If the City suspends, terminates or abandons this Agreement, or any portion hereof, for cause, the Consultant will be compensated only for work performed as of the date of receipt of such written or oral notice. 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. SECTION 8. TERM. This Agreement shall commence on July 1, 2009 and shall remain and continue in effect through June 30, 2010. SECTION 9. OWNERSHIP OF DOCUMENTS. Upon satisfactory completion of, or in the event of termination, suspension or abandonment of this Agreement, all original documents, designs, drawings, notes, reports, documents, floppy disks, diskettes or other materials prepared, developed or discovered by Consultant during the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused or otherwise disposed of by the City without the permission of the Consultant. Upon completion, expiration or termination of this Agreement, Consultant shall turn over to the City all original documents, designs, drawings, notes, reports, documents, floppy disks, diskettes or other materials prepared, developed or discovered by Consultant during the course of providing the services to be performed pursuant to this Agreement. SECTION 10. INDEPENDENT CONTRACTOR. The Consultant is and shall at all times remain as to the City a wholly independent contractor. Neither the City nor any of its officers, employees or agents shall have control over the agents except as expressly set forth in this Agreement. The Consultant shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City. No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation of or indemnification to Consultant for injury or sickness arising out of performing services hereunder. 2 SECTION 11. NOTICE. Whenever it shall be necessary for either party to serve written notice on the other regarding this Agreement, such notice shall be served personally or by certified mail, postage prepaid, return receipt requested, unless and until different addresses may be furnished in writing by either party to the other, addressed to: City Consultant City Clerk Thomas E. Smith, Jr. City of Chino Hills BonTerra Consulting 14000 City Center Drive 3452 E. Foothill Blvd., Suite 420 Chino Hills, California, 91709 Pasadena, CA 91107 Notice shall be deemed to have been served seventy-two (72) hours after the same has been deposited in the Untied States Postal Service or upon receipt. This shall be valid and sufficient service of notice for all purposes. SECTION 12. CONFLICTS OF INTEREST. Consultant covenants that neither he/she nor any officer or principal of his/her firm have any interest in, or shall they acquire any interest, directly or indirectly which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent, or subcontractor without the express written consent of the City Manager or his/her designee. Consultant further covenants that Consultant has not contracted with nor is performing any services directly or indirectly with any developer(s) and/or property owner(s) and/or firm(s) and/or partnerships owning property in the City or the study area and further covenants and agrees that Consultant and/or its subcontractors shall provide no services to or enter into any agreement or agreements with any developer(s) and/or property owner(s) and/or firm(s) and/or City Manager or his/her designee. SECTION 13. ENTIRE AGREEMENT. This Agreement contains the entire understanding between the City and Consultant. Any prior agreements, promises, negotiations or representations not expressly set forth herein are of no force or effect. Subsequent modifications to this Agreement shall be effective only if in writing and signed by all parties. If any term, condition or covenant of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall be valid and binding. SECTION 14. WAIVER. Waiver by any party hereto of any term, condition, or covenant of this Agreement shall not constitute the waiver of any other term, condition, or covenant hereof. SECTION 15. BINDING EFFECT. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties hereto. 3 SECTION 16. LICENSED STATUS. Consultant shall, at all times during the term of this Agreement, have in full force and effect all licenses required by law. SECTION 17. GOVERNING LAW. This Agreement shall be interpreted and construed according to the laws of the State of California. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of San Bernardino. SECTION 18. INSURANCE. Consultant will be required to provide proof of automobile liability insurance. SECTION 19. INDEMNIFICATION. The City shall indemnity, defend, and hold Consultant harmless from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state or municipal law of ordinance, or other cause in connection with the acts or omissions of Consultant, his/her employees, subcontractors, or agents, or on account of the performance or character of this work, except for any such claim arising out of the sole negligence or willful misconduct of the Consultant. It is understood that the duty of the City to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. DATED this date as first executed above. CITY OF CHINO HILLS BONTERRA CONSULTING ,IALY - cr-i-i4-4 9c7, MICHAEL S. F(EAGER THOMAS E. SMITH, JR. U CITY MANAGER 4 EXHIBIT "A" Scope of Work BonTerra Consulting Peer Review Services on Various Development Projects July 1, 2009 Under this agreement the Consultant shall provide peer reviews of biological analysis or specialized technical assistance (e.g. air quality) associated with various development projects within the city of Chino Hills on an on-call basis and may be required to provide any of the following services: • Review of relevant literature, resource databases, and reports. • Provide written comments of findings regarding the adequacy of the documentation for CEQA compliance. • Conduct site visits at the request of city staff to ensure biological conditions are accurately described in the report. • Meet and/or hold phone conferences with city staff and/or applicants regarding findings. Individual scopes of work will be provided to the Consultant as it relates to specific projects. Consultant shall provide cost proposals and obtain approval from the Community Development Director prior to commencing work.