AMENDMENT NO. 4 TO AGREEMENT FOR
TREE MAINTENANCE SERVICES
This Amendment No. 4 (“Fourth Amendment”) is entered into as of January 1, 2024 and is to that certain Agreement for Tree Maintenance Services between the City of Norwalk, a California municipal corporation (“City”) and West Coast Arborists, Inc., a California corporation (“Contractor”) dated June 18, 1997, as amended ("Agreement").
RECITALS
A. On June 18, 1997, City and Contractor entered into Agreement wherein Contractor agreed to perform tree maintenance services for City; B. On June 7, 2005, City and Contractor amended the Agreement to adjust the rate and extend the Agreement for ten (10) years expiring on June 30, 2015; C. On January 6, 2015, City and Contractor amended the Agreement to adjust the rate and extend the Agreement for ten (10) years expiring on June 30, 2025; D. On June 20, 2017, City and Contractor amended the Agreement to provide a mechanism for modifying the compensation beginning July 1, 2017; E. The parties desire to amend the Agreement to modify the insurance requirements and adjust the rate beginning January 1, 2024.
NOW THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
Section 1.Section 2.1 of the Agreement is amended to read as follows:
"2.1 Amount of Compensation. City shall pay Contractor at the following rates of compensation:
SCHEDULE OF COMPENSATION
Item Description Unit Current FY
23/24 Rate
Proposed FY
23/24 Rate
1 Grid Pruning Each Each $ 63.85 $ 67.05 2 Svc Request/Aesthetic Pruning Each $ 122.20 $ 128.30 3 Clearance Pruning Each $ 25.05 $ 26.30 4 Tree & Stump Removal 1-18" DBH Inch $ 21.65 $ 22.75 5 Tree & Stump Removal >18" DBH Inch $ 25.05 $ 26.30 6 Tree Only Removal Inch $ 14.80 $ 15.55 7 Stump Only Removal Inch $ 6.85 $ 7.20 8 Plant 15 Gal w/o RB Each $ 102.90 $ 108.05 9 Plant 15 Gal w/RB Each $ 122.20 $ 128.30 10 Plant 24" Box w/o RB Each $ 205.80 $ 216.10 11 Plant 24" Box w/RB Each $ 250.80 $ 263.35 12 SP Plant 15 Gal w/o RB Each $ 141.50 $ 148.55 13 SP Plant 15 Gal w/RB Each $ 160.75 $ 168.80 14 SP Plant 24" Box w/o RB Each $ 283.00 $ 297.15 15 SP Plant 24" Box w/RB Each $ 328.10 $ 344.50 16 Watering Day Day $ 334.40 $ 351.10
17 Crew Rental - per man Man/Hour $ 158.90 $ 166.85 18 Emergency Crew Rental - per man Man/Hour $ 111.15 $ 116.70 Section 2.Section 5 of the Agreement is amended in its entirety to read as follows:
5. Insurance, Indemnification and Bonds
5.1 Insurance
Without limiting Contractor’s indemnification of Agency, and prior to commencement of work, Contractor shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to Agency.
General liability insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $5,000,000 per occurrence, $10,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended.
Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile liability insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $2,000,000 combined single limit for each accident.
Workers’ compensation insurance. Contractor shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). Contractor shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Agency, its officers, agents, employees, and volunteers.
Umbrella or excess liability insurance. [If required to meet higher limits].
Contractor shall obtain and maintain an umbrella liability insurance policy over and above the commercial general, automobile, and employer’s liability policies, with limits that will provide bodily injury, personal injury, and property damage liability coverage. Such policy or policies shall include the following terms and conditions:
• A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason, other than bankruptcy or insolvency of said primary insurer;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies.
Should Contractor obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, automobile liability, and employer’s liability policies. Such policy or policies shall include wording that the excess liability policy follows the terms and conditions of the underlying policies. Insureds under primary policies shall also be insureds under the umbrella or excess policies.
Professional liability (errors & omissions) insurance. Contractor shall maintain professional liability insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Contractor agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
Other provisions or requirements
Proof of insurance. Contractor shall provide certificates of insurance and required endorsements to Agency as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by the Agency prior to commencement of performance. Current certification of insurance shall be kept on file with Agency at all times during the term of this contract and any additional length of time following the end of the contract period as required by the contract. Agency reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of coverage. Contractor shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Contractor, their agents, representatives, employees, or subcontractors.
Primary/noncontributing. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by Agency shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of Agency before the Agency’s own insurance or self-insurance shall be called upon to protect it as a named insured.
Agency’s rights of enforcement. In the event any policy of insurance required under this agreement does not comply with these specifications or is canceled and not replaced, Agency has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by Agency will be promptly reimbursed by Contractor or Agency will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, Agency may cancel this agreement.
Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the Agency.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Agency, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against Agency and shall require similar written express waivers and insurance clauses from each of its subcontractors.
Enforcement of contract provisions (non estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of the Agency to inform Contractor of non-compliance with any requirement imposes no additional obligations on the Agency nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Agency.
Notice of Cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide to Agency with a 30-day notice of cancellation (except for nonpayment for which a 10-day notice is required) or nonrenewal of coverage for each required coverage. If any of the Contractor’s insurers are unwilling to provide such notice, then Contractor shall have the responsibility of notifying the Agency immediately in the event of Contractor’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.
Additional insured status. General liability policies shall provide or be endorsed to provide that Agency and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Automobile liability policies shall contain, or be endorsed to contain, additional insured coverage for the Agency.
Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to Agency and approved of in writing.
Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
Pass through clause. Contractor agrees to ensure that its sub-contractors, sub- contractors, and any other party involved with the project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section.
Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to Agency for review.
Agency’s right to revise specifications. The Agency reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor 90 days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the Agency and Contractor may renegotiate Contractor’s compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved by Agency. Agency reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
Timely notice of claims. Contractor shall give Agency prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this agreement, and that involve or may involve coverage under any of the required liability policies.
Additional insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
Section 3.Section 5.2 of the Agreement is amended in its entirety to read as follows:
5.2 Indemnification
Contractor shall indemnify, defend and hold harmless City, and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors and assigns in accordance with the Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution attached hereto as Exhibit B. Contractor's indemnifications and obligations shall survive the expiration or termination of this Agreement for claims for injuries to persons or damages to property declared to have occurred during the contract period or alleged to be as a result of work performed during the contract period.
Section 4.The Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution attached hereto as Exhibit B is hereby incorporated by reference into the Agreement.
Section 5. Except as expressly modified or supplemented by this Fourth Amendment, all of the provisions of the Agreement, as amended by the First Amendment, Second Amendment, and Third Amendment shall remain unaltered and in full force and effect.
In the event of a conflict between the provisions of this Fourth Amendment and the provisions of the Agreement or the First Amendment, Second Amendment and the Third Amendment the provisions of the Fourth Amendment shall control. [SIGNATURES TO FOLLOW]
The parties, through their respective authorized representatives, are signing this Fourth Amendment as of the date stated in the introductory clause:
CITY OF NORWALK WEST COAST ARBORISTS, INC.
By: ____________________________ By:_____________________________ Jesus M. Gomez, Name:
City Manager Title:
Date: ____________________________
ATTEST: By:_____________________________
Name:
By: ______________________________ Title:
Theresa Devoy, CMC
City Clerk
(Please note, two signatures required for
APPROVED AS TO FORM: corporations pursuant to California Corporations Code Section 313.)
___________________________________
Arnold Alvarez-Glasman
City Attorney
EXHIBIT B
INDEMNIFICATION AND HOLD HARMLESS AGREEMENT
AND WAIVER OF SUBROGATION AND CONTRIBUTION
Contract/Agreement/License/Permit No. or description: Tree Maintenance Services_____________________________________________________ Indemnitor(s) (list all names): West Coast Arborists, Inc.
To the fullest extent permitted by law, Indemnitor hereby agrees, at its sole cost and expense, to protect, indemnify, and hold harmless the City of Norwalk and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, and assigns (collectively “Indemnitees”) from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith (collectively “Liabilities”), resulting from any wrongful or negligent act, failure to act, error, or omission of Indemnitor or any of its officers, agents, servants, employees, subcontractors, material men, suppliers or their officers, agents, servants or employees, arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to the above-referenced contract, agreement, license, or permit (the “Agreement”) or the performance or failure to perform any term, provision, covenant, or condition of the Agreement, including this indemnity provision. This indemnity provision is effective regardless of any prior, concurrent, or subsequent passive negligence by Indemnitees and shall operate to fully indemnify Indemnitees against any such negligence. This indemnity provision shall survive the termination of the Agreement and is in addition to any other rights or remedies which Indemnitees may have under the law.
Payment is not required as a condition precedent to an Indemnitee’s right to recover under this indemnity provision, and an entry of judgment against the Indemnitor shall be conclusive in favor of the Indemnitee’s right to recover under this indemnity provision.
Indemnitor shall pay Indemnitees for any attorney’s fees and costs incurred in enforcing this indemnification provision. Notwithstanding the foregoing, nothing in this instrument shall be construed to encompass (a) Indemnitees’ active negligence or willful misconduct to the limited extent that the underlying Agreement is subject to Civil Code § 2782(a), or (b) the contracting public agency’s active negligence to the limited extent that the underlying Agreement is subject to Civil Code § 2782(b). This indemnity is effective without reference to the existence or applicability of any insurance coverages which may have been required under the Agreement or any additional insured endorsements which may extend to Indemnitees.
City agrees to promptly inform Indemnitor in writing of any claim that City believes to be subject to this Indemnification and Hold Harmless Agreement.
Indemnitor(s), on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Indemnitor regardless of any prior, concurrent, or subsequent non-active negligence by the Indemnitees. Such claims, losses and liabilities include, but are not limited to, contraction of the COVID-19 virus and physical and/or emotional injuries and/or death caused by contraction of the COVID-19 virus. To the fullest extent permitted by law, this waiver is intended to be a complete release of Indemnitees.
In the event there is more than one person or entity named in the Agreement as an Indemnitor, then all obligations, liabilities, covenants and conditions under this instrument shall be joint and several.
“Indemnitor”
Print Name: Print Name: ___________________________ Signature:_____________________________ Signature:_____________________________ Title: Title:_________________________________
Date:_____________________ Date:___________________