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0 AGREEMENT WITH 4LEAF, INC.
FOR PROFESSIONAL CONSULTANT SERVICES FOR
EAST HILLSDALE PARK PLAYGROUND IMPROVEMENTS PROJECT
This Agreement, made and entered into this day of April 22, 2025, by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California (“CITY”), and 4LEAF, INC., a corporation (“CONSULTANT”), whose address is 2126 Rheem Drive, Pleasanton, CA 94588.
RECITALS:
A. CITY desires certain construction management services hereinafter described.
B. CITY desires to engage CONSULTANT to provide these construction management services by reason of its qualifications and experience for performing such services and CONSULTANT 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
The scope of services to be performed by CONSULTANT under this Agreement is as described in Exhibit A to this Agreement, attached and incorporated by reference.
SECTION 2 - DUTIES OF CONSULTANT
CONSULTANT shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONSULTANT under this Agreement. CONSULTANT shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONSULTANT represents that it is qualified to furnish the services described under this Agreement.
CONSULTANT shall be responsible for employing or engaging all persons necessary to perform the services of CONSULTANT.
CONSULTANT 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.
SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONSULTANT and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONSULTANT's work.
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0 SECTION 4 - TERM
The services to be performed under this Agreement shall commence on June 16, 2025 and be completed on December 31, 2026.
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 CONSULTANT a fee in an amount not to exceed $200,000 pursuant to rates stated in Exhibit B to this Agreement, attached and incorporated by reference.
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 CONSULTANT. CONSULTANT agrees to cease all work under this Agreement upon receipt of said written notice.
Upon termination and upon CITY's payment of the amount required to be paid, documents become the property of CITY, and CONSULTANT shall transfer them to CITY upon request without additional compensation.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONSULTANT in the performance of this Agreement, although instruments of professional service, are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONSULTANT in connection with the performance of this Agreement are confidential until released by CITY to the public. CONSULTANT shall not make any such documents or information available to any individual or organization not employed by CONSULTANT or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONSULTANT
CONSULTANT 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.
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0 SECTION 10 - CONSULTANT'S STATUS
It is expressly agreed that in the performance of the professional services required under this Agreement, CONSULTANT 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 CONSULTANT an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONSULTANT 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 CONSULTANT’s performance of this Agreement, except those claims arising out of CITY’s sole negligence or willful misconduct. CONSULTANT agrees to defend City, its elected and appointed officials, employees, and agents against any such claims. The CONSULTANT’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
CONSULTANT shall procure and maintain for the duration of the contract and three years thereafter (five years for building or major improvements) the insurance specified in Exhibit C to this Agreement.
SECTION 13 - NON-ASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONSULTANT and cannot be transferred, assigned, or subcontracted by CONSULTANT without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON PROFESSIONAL
SKILL OF CONSULTANT
It is mutually understood and agreed by and between the parties hereto that CONSULTANT is skilled in the professional calling necessary to perform the work agreed to be done under this Agreement and that CITY relies upon the skill of CONSULTANT to do and perform the work in the most skillful manner, and CONSULTANT agrees to thus perform the work. The acceptance of CONSULTANT's work by CITY does not operate as a release of CONSULTANT from said obligation.
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0 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 - SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
SECTION 17 - 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 Agreement 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 18 - NON-DISCRIMINATION
CONSULTANT warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONSULTANT 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.
SECTION 19 - 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.
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0 SECTION 20 - LITIGATION
CONSULTANT shall testify at CITY'S request if litigation is brought against CITY in connection with CONSULTANT's services under this Agreement. Unless the action is brought by CONSULTANT, or is based upon CONSULTANT's wrongdoing, CITY shall compensate CONSULTANT for preparation for testimony, testimony, and travel at CONSULTANT's standard hourly rates at the time of actual testimony.
SECTION 21 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Joanne Magrini
City of San Mateo
330 W 20th Ave.,
San Mateo, CA 94403
To CONSULTANT: 4LEAF, Inc.
Attn: Gene Barry
2126 Rheem Drive,
Pleasanton, CA 94588
SECTION 22 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS; AMENDMENT
This document represents the entire and integrated agreement between CITY and CONSULTANT 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 CONSULTANT.
SECTION 23 - AUTHORITY TO ENTER INTO AGREEMENT
CONSULTANT has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
SECTION 24 - 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.
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0 IN WITNESS WHEREOF, CITY OF SAN MATEO and 4LEAF, INC. have executed this Agreement the day and year first above written.
CITY OF SAN MATEO CONSULTANT
Joanne Magrini
Parks and Recreation Director
Date Gene Barry
Its Authorized Agent
Vice President
If a Corporation, can be either 1)
President or 2) Vice President
plus an additional corporate
officer (i.e., Secretary, Treasurer)
who shall sign below.
Date
APPROVED AS TO FORM ADDITIONAL CORPORATE
OFFICER
(if necessary per the above)
Mazarin Vakharia
Assistant City Attorney
Date Kevin Duggan
President / Secretary
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Fee Rates
Exhibit C: Insurance Requirements
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0 EXHIBIT A
SCOPE OF SERVICES
The Scope of Service contemplated for the East Hillsdale Park Playground Improvements Project include, but is not limited to the following:
1. Construction Management and Inspection Services.
a. Act as construction project coordinator and the point of contact for all communications and interaction with the contractor, affected local agencies and design consultant. b. Coordination with the City’s Project Manager.
c. Provide administrative support including, but not limited to, maintaining project files, convening necessary meetings, providing meeting notes, monthly progress reports, photographic documentation, pay application reviews/negotiations and on-site observation. d. Provide, administer, and use web-based Project software site for purposes of hosting and managing Project communication and documentation until Final Completion. e. Ensure all permits are pulled and inspections are conducted. Construction permit and renewal of expired permits.
f. Inspect and ensure Contractor’s compliance of
tree protection measures and fencing.
erosion Control BMP’s and SWPPP
construction site fencing and safety protocols.
g. Review scheduled submittals and provide schedule management support. h. Ensure product and deferred submittals are submitted and processed in a timely manner. i. Oversee the RFI process.
j. Evaluate, negotiate, recommend, and prepare change orders. k. Perform field inspection activities, monitor contractor’s performance and enforce all requirements of applicable codes, specifications, and contract drawings. l. Oversee quality control and materials testing.
m. Ensure all special inspections including structural, geotechnical, soils and materials testing, as required by the project are scheduled and completed.
n. Ensure all play equipment are installed per manufacturer’s instructions and pass safety inspections performed by a certified by a Certified Playground Safety Inspector. o. Schedule, manage, perform and document all field and laboratory testing services as provided in project specifications.
p. All reports, calculations, measurements, test data and other documentation shall be prepared on forms specified by or otherwise acceptable to the City.
q. Review and monitor the construction schedule. Prepare weekly reports documenting the progress of construction. Take photographs and videotape recordings of the construction progress on a regular basis.
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0 r. Prepare and recommend progress payments.
s. Identify potential claims and make recommendations to resolve said claims. t. Daily reports, extra work diaries, materials testing reports, and other reports shall be submitted to the City.
u. Provide final punch-list inspection services and project closeout activities, including preparation of the final construction project report.
v. Turn over all As-builts and conformed construction documents to the City. w. Provide close-out support including site furniture, fixtures and equipment installations, punch list management, O&M manuals, as-built reference documentation review, final release of retention pay review and warranty work management.
2. Hazardous Materials Compliance Services.
Consultant to provide coordination for regulatory compliance for removal, containment, abatement, and disposal of hazardous materials including regulated asbestos containing materials and piping, lead containing paints, smoke detectors which may contain a radioactive element or contaminated soil. Services to be provided shall include
a. Pre-Abatement and Post-Abatement Submittal Review. Review of all contractor submittals related to asbestos and lead abatement, including work plans, safety procedures, and material specifications, verify that each submittal complies with applicable regulations and project specifications before work begins, and provide written recommendations for adjustments required to address any noted discrepancies or issues. After the abatement work is completed, review all final submittals, including clearance testing results and project closeout documents, confirm that the abatement work has been completed in accordance with the approved specifications and that all necessary documentation is in order.
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0 EXHIBIT B
FEE RATES
Construction Management Services
Invoices shall be submitted by the 20th day of the following month of services.
BASIS OF CHARGES
A. Rates shown assume projects under this contract will require compliance with California Prevailing Wage rate requirements and assumes the Client will be filing a PWC-100 Form to the California Department of Industrial Relations (DIR) for the project.
B. Rates for prevailing wage categories are subject to annual escalations in accordance with the bi-annual wage determinations from the California DIR. Rates based on California DIR’s wage determinations dated August 2024.
C. Per the new requirements being enforced under SB 854 and because it is assumed that a PWC-100 Form will be filed by the Client to the CA DIR for the project, 4LEAF is required to notify an authorized Apprenticeship Committee through submittal of a DAS-140 form. We are then required to make an official request to an authorized Apprenticeship Committee for an apprentice by submitting a DAS142 form. We are not assured the apprenticeship committee will be able to provide a suitable/qualified apprentice for the project. Per the apprenticeship requirements, the hours worked by the apprentice must be at a ratio of 1:5 for apprentice to journeyman hours. 4LEAF will not know the labor classification of the Public Works Apprentice until an Apprentice is dispatched to the site; therefore, the rates for the five Periods listed under the California DIR’s Wage determination for Building Construction Inspector issued August 2024 were used to determine the range of Calendar Year 2024 hourly rates for Public Works Inspector Apprentice.
D. All invoicing will be submitted monthly.
E. Overtime and Premium time will be charged as follows:
- Night Time (work begun after 4PM or before 5AM) 1.125 x hourly rate - Overtime 1 (over 8 hours M-F or Saturdays) 1.35 x hourly rate - Overtime 2 (over 8 hours Sat or 1st 8 hour Sun) 1.85 x hourly rate - Overtime 3 (over 8 hours Sun or Holidays) 2.35 x hourly rate F. All work with less than 8 hours rest between shifts will be charged the appropriate overtime rate.
G. Subconsultant invoices will be assessed a 10% Administrative Processing Fee.
H. Project-related mileage for inspections will be billed at the allowable IRS Rate.
I. Payment due on receipt. All payments over 30 days will be assessed as a 1.5% interest charge.
J. Intentionally deleted.
K. Intentionally deleted.
L. In accordance with California’s Meal Break and Rest Break Law requirements, Client will be billed one (1) additional hour per day at the regular rate for each missed meal or rest break due to Client-directed tasks or requirements. Client should allow 4LEAF’s nonexempt, hourly employees the opportunity to take their entitled rest and meal breaks during each work shift.
M. If 4LEAF is requested or otherwise required to conform to Client’s alternative workweek schedule (“AWW”), Client hereby agrees to compensate or reimburse 4LEAF for all overtime paid to its employees who work an AWW. If 4LEAF’s affected employment group approves an AWW election and the same is registered, overtime compensation/reimbursement shall not be required.
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0 Inspections
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0 INSURANCE – Intentionally deleted
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0 Hazardous Materials
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0 Certified Arborist
Certified Playground Safety Inspector
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0 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 CONSULTANT 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.
4.Professional Liability (Errors and Omissions): Insurance appropriate to the CONSULTANT’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
If the CONSULTANT maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the CONSULTANT.
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 CONSULTANT; and on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the CONSULTANT 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 CONSULTANT’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 CONSULTANT’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 CONSULTANT’s insurance and shall not contribute with it.
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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.
Waiver of Subrogation
CONSULTANT hereby grants to City a waiver of any right to subrogation which any insurer of said CONSULTANT may acquire against the City by virtue of the payment of any loss under such insurance.
CONSULTANT 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 CONSULTANT 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.
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CONSULTANT 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 CONSULTANT’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.
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