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8 AGREEMENT WITH WEST COAST ARBORISTS, INC.
FOR YOUNG TREE WATERING SERVICES
This Agreement, made and entered into this day of____________________, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California ("CITY"), and WEST COAST ARBORIST, INC. ("CONTRACTOR"), whose address is 781 SAN PABLO AVE, PINOLE, CA 94564.
RECITALS:
A. CITY desires certain YOUNG TREE WATERING services hereinafter described.
B. CITY desires to engage CONTRACTOR to provide these YOUNG TREE WATERING services by reason of its qualifications and experience for performing such services and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
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The scope of services to be performed by CONTRACTOR under this Agreement is as described in Exhibit A to this Agreement, which is attached and incorporated by reference.
SECTION 2 - DUTIES OF CONTRACTOR
CONTRACTOR shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONTRACTOR under this Agreement. CONTRACTOR shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONTRACTOR represents that it is qualified to furnish the services described under this Agreement.
CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR.
CONTRACTOR agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
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8 SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONTRACTOR and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONTRACTOR'S work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on August 1, 2024 and be completed on June 30, 2026. The CITY and CONTRACTOR, by mutual agreement, may extend the contract one (1) year at a time from the expiration of the initial contract term not to exceed three (3) one-year extensions.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONTRACTOR a fee in an amount of $17.00 per tree per watering visit, an annual amount not to exceed $130,000, and a two-year total of $260,000, a fee pursuant to rates stated in Exhibit B, attached, and incorporated by reference. If all extensions are exercised, a compensation for five years of service will total a not to exceed amount of $650,000.
SECTION 6 - TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONTRACTOR. CONTRACTOR agrees to cease all work under this Agreement upon receipt of said written notice.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONTRACTOR in the performance of this Agreement are and shall be the property of CITY, whether the project for which they are made is executed or not.
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8 SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONTRACTOR in connection with the performance of this Agreement are confidential until released by CITY to the public.
CONTRACTOR shall not make any such documents or information available to any individual or organization not employed by CONTRACTOR or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONTRACTOR
CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
SECTION 10 - CONTRACTOR'S STATUS
It is expressly agreed that in the performance of the services required under this Agreement, CONTRACTOR shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONTRACTOR an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONTRACTOR agrees to hold harmless and indemnify CITY, its elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONTRACTOR’s performance of this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONTRACTOR agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONTRACTOR’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
Contractor shall procure and maintain for the duration of the contract the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NONASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONTRACTOR and cannot be transferred, assigned, or subcontracted by CONTRACTOR without the prior written consent of CITY.
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8 SECTION 14 - RELIANCE UPON SKILL OF CONTRACTOR
It is mutually understood and agreed by and between the parties hereto that CONTRACTOR is skilled in the performance of the work agreed to be done under this Agreement and that CITY relies upon the skill of CONTRACTOR to do and perform the work in the most skillful manner, and CONTRACTOR agrees to thus perform the work. The acceptance of CONTRACTOR's work by CITY does not operate as a release of CONTRACTOR from said obligation.
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 17 - NON-DISCRIMINATION
CONTRACTOR warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONTRACTOR nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
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8 SECTION 18 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
SECTION 19 - LITIGATION
CONTRACTOR shall testify at CITY's request if litigation is brought against CITY in connection with CONTRACTOR's services under this Agreement. Unless the action is brought by CONTRACTOR, or is based upon CONTRACTOR's wrongdoing, CITY shall compensate CONTRACTOR for preparation for testimony, testimony, and travel at CONTRACTOR's standard hourly rates at the time of actual testimony.
SECTION 20 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Timothy Heartquist,
Acting Managing Arborist
City of San Mateo
330 W. 20th Avenue
San Mateo, CA 94403
To CONTRACTOR: West Coast Arborists, Inc.
Attn: Joe Bartolo
781 Pinole Ave
Pinole, Ca 94564
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8 SECTION 21 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONTRACTOR.
SECTION 22 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo. [SIGNATURE PAGE FOLLOWS]
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8 IN WITNESS WHEREOF, CITY OF SAN MATEO and WEST COAST ARBORISTS, INC have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONTRACTOR
Joanne Magrini
Director of Parks and
Recreation
Date Patrick Mahoney
West Coast Arborist, Inc.
President
Date
APPROVED AS TO FORM
Mazarin Vakharia
Assistant City Attorney
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Payment Rates
Exhibit C: Insurance Requirements
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8 EXHIBIT A
SCOPE OF SERVICES
The Contractor shall furnish all labor, equipment, materials, water, tools and supervision to perform tree watering as described herein. Watering services are to be performed according to the following specifications:
•At start of contract, Contractor will provide and install water bags on all trees. Bags must have a capacity of least 15 gallons and no more than 20 gallons of water and be made of durable PVC tarpaulin material. Bags must be approved by Managing Arborist. Bags must be removed upon termination of the contract.
•Trees planted the same year must be watered every 9 to 11 days from March 1st through October 31, during long periods without rain in the winter months and upon request of the Managing Arborist. Trees planted the previous year must be watered every 20-25 days. •At the time of watering, the water bag shall be filled to capacity. The tree basin must also be filled to capacity. Water provided must be fresh water (NOT recycled). •If a water bag is damaged, destroyed, or removed during the contract period, the Contractor will be responsible for its replacement.
•While performing tree watering, the Contractor shall maintain the tree watering basin to a height of 4 to 6 inches along the perimeter of the planting hole. Contractor shall remove weeds and debris within the watering basin.
•Contractor shall ensure that all tree support stakes are functional and that tree ties allow trunk to move in wind. Bidder to provide replacement stakes when necessary. •The Contractor shall maintain a daily log of trees watered. The log shall be updated daily and list the trees watered by site. A copy of the log, which shall be maintained in digital format, must accompany invoicing for tree watering services by the Contractor. •Trees shall not be watered more than once (1) every ten (10) days from March 1 st through October 31st. Trees shall not be watered starting November 1st – last day of February without express authorization by the Managing Arborist.
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EXHIBIT B
PAYMENT RATES
Work is to be billed on a “per tree per watering visit” unit basis. Contractor is to bill $17.00 each time a tree is watered. Contractor shall submit a monthly work summary report along with each monthly invoice. Report format shall be agreed upon by Contractor and the City. Contractor’s invoice will not be considered complete until the monthly work summary report is submitted and approved by the Managing Arborist. Total contract amount shall not to exceed $260,000.00 for the initial two-year term. Thereafter, the total contract amount shall not exceed $130,000 per year during the optional one-year extension periods.
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EXHIBIT C
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1.Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2.Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3.Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
If the contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the contractor.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its elected and appointed officials, employees, and agents are to be covered as insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the Contractor’s insurance coverage shall be primary insurance as respects the City, its elected and appointed officials, employees, and agents. Any insurance or self- insurance maintained by the City, its elected and appointed officials, employees, or agents shall be excess of the Contractor’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
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Waiver of Subrogation
Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.