City of
Santa Clara
The Center of What's Possible
Date: December 5, 2017
To:
From:
City Manager for Council Action
Chief Electric Utility Officer
AGENDA ITEM #:
AGENDA REPORT
Subject: Approval of an Agreement for the Performance of Services with Davey Tree Surgery Company for Tree Trimming for Power Line Clearance
EXECUTIVE SUMMARY
A significant threat to the integrity of our electric distribution system is the interference of trees with our power lines. In recognition of this danger, the City Manager's Directive #74 directs the Electric Department to utilize a tree trimming program to protect our distribution lines. A Request for Proposal (RFP) was issued and two proposals were received. The proposals were reviewed by staff and Davey Tree Surgery Company was selected. On June 27, 2017, Council approved a five year Agreement to provide tree trimming services.
On August 17, 2017, Davey Tree Surgery Company requested a meeting with City staff to discuss the Agreement regarding the financial impact. Davey explained that they inadvertently submitted an older rate sheet and if they continued the services under this rate it would create a financial hardship. On August 21, 2017 staff received a notice of termination from Davey Tree Surgery Company due to a financial hardship:
In October, 2017, staff issued an RFP and received two bids. The proposals were reviewed and evaluated and Davey Tree Surgery Company was the lowest cost for these services.
Staff has prepared a three (3) year Agreement for the Performance of Services with Davey Tree Surgery Company. Under this Agreement Davey Tree Surgery Company will perform the power line clearance tree trimming in a manner designed to eliminate tree contact with power lines and to optimize clearance from high-voltage electrical equipment without damaging the structural integrity of the trees. A copy of the Agreement for the Performance of Services can be viewed on the City's website and is available in the City Clerk's Office for review during normal business hours.
ADVANTAGES AND DISADVANTAGES OF ISSUE
This agreement for services provides the lowest cost resource that enables Silicon Valley Power to enhance the reliability of our electrical distribution system by clearing trees from power lines.
ECONOMIC/FISCAL IMPACT
The total cost of the Agreement for the Performance of Services with Davey Tree Surgery Company will not exceed $3,892,571.84 over a three year period. For fiscal year 2017/18, costs shall not exceed $1,097,600.00. Sufficient funds are available in the Electric Department Maintenance 091-1376-87600-(A)00011-(F)59300. All future appropriations will be done through the budget process.
Subject: Agreement for the Performance of Services with Davey Tree Surgery Company
RECOMMENDATION
That the Council approve, and authorize the City Manager to execute, an Agreement for the Performance of Services with Davey Tree Surgery Company, in an amount not to exceed $1,097,600 for fiscal year 2017/18, or $3,892,571.84 for the three year term of the Agreement, for tree trimming for power line clearance, in substantially the form presented, subject to final review and approval by the City Attorney's Office.
Electric Utility Officer
Deanna J. Santanc(
City Manager
Documents Related to this Report:
"~ ~(...,
of Funds:
$1,097,600
1) Agreement for the Performance of Services with Davey Tree Surgery Company F:\COUNCIL\Action\Yard Contracts\DS.Davey Tree APS REV.CA017.1898.doc EBIX Insurance No. S2000004 l 7
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
DA VEY TREE SURGERY COMPANY
PREAMBLE
This agreement for the perfmmance of services ("Agreement") is by and between Davey Tree Surgery Company, an Ohio corporation, with its principal place of business located at 1500 N.
Mantua Street, Kent, Ohio 44240 ("Contractor"), and the City of Santa Clara, California, a chartered California municipal corporation with its primary business address at 1500 Warburton A venue, Santa Clara, California 95050 ("City"). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."
RECITALS
A. City desires to secure professional services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services"; and
B. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the te1ms and conditions under which such services will be provided and paid for.
The Parties agree as follows:
AGREEMENT PROVISIONS
1. EMPLOYMENT OF CONTRACTOR.
City hereby employs Contractor to perform services set forth in this Agreement. To accomplish that end, City may assign a Project Manager to personally direct the Services to be provided by Contractor and will notify Contractor in writing of City's choice. City shall pay for all such materials and services provided which are consistent with the te1ms of this Agreement.
2. SERVICES TO BE PROVIDED.
Except as specified in this Agreement, Contractor shall furnish all technical and professional services, including labor, material, equipment, transpo1iation, supervision and expertise ( collectively referred to as "Services") to satisfactorily complete the work required by City at his/her own risk and expense. Services to be provided to City are more fully described in Exhibit A entitled "SCOPE OF SERVICES." All of the exhibits referenced in this Agreement are attached and are incorporated by this reference.
Agreement for the Performance of Services/ Davey Tree Surgery Company Rev. 02/01/15
3. COMMENCEMENT AND COMPLETION OF SERVICES.
A. Contractor shall begin providing the services under the requirements of this Agreement upon receipt of written Notice to Proceed from City. Such notice shall be deemed to have occurred three (3) calendar days after it has been deposited in the regular United States mail. Contractor shall complete the Services within the time limits set f011h in the Scope of Services or as mutually determined in writing by the Parties.
B. When City detemunes that Contractor has satisfactorily completed the Services, City shall give Contractor written Notice of Final Acceptance. Upon receipt of such notice, Contractor shall not incur any further costs under this Agreement.
Contractor may request this determination of completion be made when, in its opinion, the Services have been satisfactorily completed. If so requested by the contractor, City shall make this dete1mination within fourteen (14) days of its receipt of such request.
4. QUALIFICATIONS OF CONTRACTOR-STANDARD OF WORKMANSHIP.
Contractor represents and maintains that it has the necessaiy expe11ise in the professional calling necessmy to perf01m services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor's representations regarding its skills and knowledge. Contractor shall perform such services and duties in conf01mance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
The plans, designs, specifications, estimates, calculations, reports and other documents furnished under Exhibit A shall be of a quality acceptable to City. The criteria for acceptance of the work provided under this Agreement shall be a product of neat appearance, well organized, that is technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by City for similar projects.
5. TERM OF AGREEMENT.
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on the Effective Date of this Agreement and te1minate three (3) years from the Effective Date.
6. MONITORING OF SERVICES.
City may monitor the Services performed under this Agreement to dete1mine whether Contractor's operation conforms to City policy and to the terms of this Agreement. City may also monitor the Services to be perfo1med to dete1mine whether financial operations are conducted in accord with applicable City, county, state, and federal requirements. If any action of Contractor constitutes a breach, City may te1minate this Agreement pursuant to the provisions described herein.
Agreement for the Perfonnance of Services/ Davey Tree Surge1y Company Rev. 02/01/15
7. WARRANTY.
Contractor expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect, and shall confo1m to the specifications, requirements, and instructions upon which this Agreement is based.
Contractor agrees to promptly replace or correct any incomplete, inaccurate, or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incmred by City.
8. PERFORMANCE OF SERVICES.
Contractor shall perform all requested services in an efficient and expeditious manner and shall work closely with and be guided by City. Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it. Contractor will perform all Services in a safe manner and in accordance with all federal, state and local operation and safety regulations.
9. BUSINESS TAX LICENSE REQUIRED.
Contractor must comply with Santa Clara City Code section 3.40.060, as that section may be amended from time to time or renumbered, which requires that any person who transacts or carries on any business in the City of Santa Clara pay business license tax to the City. A business tax certificate may be obtained by completing the Business Tax Affidavit Fmm and paying the applicable fee at the Santa Clara City Hall Municipal Services Division.
10. RESPONSIBILITY OF CONTRACTOR.
Contractor shall be responsible for the professional quality, technical accuracy and coordination of the Services furnished by it under this Agreement. Neither City's review, acceptance, nor payments for any of the Services required under this Agreement shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement and Contractor shall be and remain liable to City in accordance with applicable law for all damages to City caused by Contractor negligent performance of any of the Services furnished under this Agreement.
Any acceptance by City of plans, specifications, construction contract documents, repo1is, diagrams, maps and other material prepared by Contractor shall not in any respect absolve Contractor from the responsibility Contractor has in accordance with customary standards of good professional practice in compliance with applicable federal, state, county, and/or municipal laws, ordinances, regulations, rules and orders.
11. COMPENSATION AND PAYMENT.
In consideration for Contractor's complete perfmmance of Services, City shall pay Contractor for all materials provided and services rendered by Contractor at the rate per Agreement for the Perfonnance of Services/ Davey Tree Surgery Company Rev. 02/01/15
hour for labor and cost per unit for materials as outlined in Exhibit B, entitled "SCHEDULE OF FEES."
Contractor will bill City on a monthly basis for Services provided by Contractor during the preceding month, subject to verification by City. City will pay Contractor within thirty (30) days of City's receipt of invoice.
12. TERMINATION OF AGREEMENT.
Either Party may terminate this Agreement without cause by giving the other Paiiy written notice ("Notice of Termination") which clearly expresses that Party's intent to te1minate the Agreement. Notice of Te1mination shall become effective no less than thirty (30) calendar days after a Party receives such notice. After either Party te1minates the Agreement, Contractor shall discontinue further services as of the effective date of te1mination, and City shall pay Contractor for all Services satisfactorily performed up to such date.
13. NO ASSIGNMENT OR SUBCONTRACTING OF AGREEMENT.
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Contractor shall not hire subcontractors without express written permission from City.
14. NO THIRD PARTY BENEFICIARY.
This Agreement shall not be constrned to be an agreement for the benefit of any third paiiy or parties and no third paiiy or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
15. INDEPENDENT CONTRACTOR.
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights, however, to manage its employees in their perfmmance of Services under this Agreement. Contractor is not authorized to bind City to any contracts or other obligations.
16. NO PLEDGING OF CITY'S CREDIT.
Under no circumstances shall Contractor have the authority or power to pledge the credit of City or incur any obligation in the name of City. Contractor shall save and hold haimless the City, its City Council, its officers, employees, boards and commissions for expenses arising out of any unauthorized pledges of City's credit by Contractor under this Agreement.
Agreement for the Perfonnance of Services/ Davey Tree Surgery Company Rev. 02/01/15
17. CONFIDENTIALITY OF MATERIAL.
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other written infonnation submitted to Contractor in connection with the perfonnance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with perf01mance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.
18. USE OF CITY NAME OR EMBLEM.
Contractor shall not use City's name, insignia, or emblem, or distribute any inf01mation related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
19. OWNERSHIP OF MATERIAL.
All material, including info1mation developed on computer(s), which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, rep01ts and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the prope1ty of City but Contractor may retain and use copies thereof.
City shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.
20. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR.
City, through its authorized employees, representatives or agents shall have the right during the te1m of this Agreement and for three (3) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including te1mination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the coffectness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City.
Contractor shall submit to City any and all repo1ts concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City's reporting requirements to the State and other agencies with respect to Contractor's Services hereunder.
Agreement for the Perfo1mance of Services/ Davey Tree Surgery Company Rev. 02/01/15
21. CORRECTION OF SERVICES.
Contractor agrees to correct any incomplete, inaccurate or defective Services at no fmther costs to City, when such defects are due to the negligence, errors or omissions of Contractor.
22. FAIR EMPLOYMENT.
Contractor shall not discriminate against any employee or applicant for employment because of race, color, creed, national origin, gender, sexual orientation, age, disability, religion, ethnic background, or marital status, in violation of state or federal law.
23. HOLD HARMLESS/INDEMNIFICATION.
To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injmy, liability, loss, cost, and/or expense or damage, including all costs and reasonable attorney's fees in providing a defense to any claim arising therefrom, for which City shall become liable arising from Contractor's negligent, reckless or wrongful acts, e1rnrs, or omissions with respect to or in any way connected with the Services performed by Contractor pursuant to this Agreement.
24. INSURANCE REQUIREMENTS.
During the term of this Agreement, and for any time period set fmth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City insmance policies with respect to employees and vehicles assigned to the Performance of Services under this Agreement with coverage amounts, required endorsements, ce1tificates of insurance, and coverage verifications as defined in Exhibit C.
25. AMENDMENTS.
This Agreement may be amended only with the written consent of both Parties.
26. INTEGRATED DOCUMENT.
This Agreement represents the entire agreement between City and Contractor. No other understanding, agreements, conversations, or otherwise, with any representative of City prior to execution of this Agreement shall affect or modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial info1mation and is not binding upon City.
27. SEVERABILITY CLAUSE.
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
Agreement for the Performance of Services/ Davey Tree Surgery Company Rev. 02/01/15
28. WAIVER.
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be constmed as waiver(s) of any other condition of performance under this Agreement.
29. NOTICES.
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Electric Department
1500 Warburton Avenue
Santa Clara, California 95050
or by facsimile at ( 408) 261-2717
And to Contractor addressed as follows:
Davey Tree Surgery Company
1500 N. Mantua Street
Kent, Ohio 44240
or by facsimile at (925) 443-1751
If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed.
The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday.
30. CAPTIONS.
The captions of the various sections, paragraphs and subparagraphs of this Agreement are for convenience only and shall not be considered or refe1Ted to in resolving questions of interpretation.
31. LAW GOVERNING CONTRACT AND VENUE.
This Agreement shall be governed and constmed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Comi, Nmihern District of California, San Jose, California.
32. DISPUTE RESOLUTION.
A Unless otherwise mutually agreed to by the Parties, any controversies between Contractor and City regarding the constmction or application of this Agreement, and claims arising out of this Agreement or its breach, shall be submitted to mediation within thirty (30) days of the written request of one Party after the service of that request on the other Party.
Agreement for the Perfonnance of Services/ Davey Tree Surge1y Company Rev. 02/01/15
B. The Pmiies may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request the Superior Court of Santa Clara County to appoint a mediator. The mediation meeting shall not exceed one day (eight (8) hours). The Parties may agree to extend the time allowed for mediation under this Agreement.
C. The costs of mediation shall be borne by the Pmiies equally.
D. For any contract dispute, mediation under this section is a condition precedent to filing an action in any court. In the event of mediation which arises out of any dispute related to this Agreement, the Pmiies shall each pay their respective attorney's fees, expert witness costs and cost of suit through mediation only. If mediation does not resolve the dispute, the Pmiies agree that the matter shall be litigated in a comi of law, and not subject to the arbitration provisions of the Public Contracts Code.
33. COMPLIANCE WITH ETHICAL STANDARDS.
Contractor shall:
A. Read Exhibit D, entitled "ETHICAL STANDARDS FOR CONTRACTORS
SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA"; and,
B. Execute Exhibit E, entitled "AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS."
34. AFFORDABLE CARE ACT OBLIGATIONS
To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act ("Act") and/or any other similar federal or state law, Contractor warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rnlings, or tax payments associated with Contractor's responsibilities under the Act.
35. CONFLICT OF INTERESTS.
This Agreement does not prevent either Pmiy from entering into similar agreements with other parties. To prevent a conflict of interest, Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code Section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.
Agreement for the Performance of Services/ Davey Tree Surge1y Company Rev. 02/01/15
36. PROGRESS SCHEDULE.
The Progress Schedule will be as set forth in the attached Exhibit F, entitled "MILESTONE SCHEDULE" if applicable.
37. PREVAILING WAGES.
A. Labor Code Compliance. Contractor must conform to the provisions of Labor Code sections 1720 through 1815, and all applicable provisions of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Aiiicles 1-7.
Contractor agrees to include prevailing wage requirements in its contracts for the Project.
B. Requirements in Subcontracts. Contractor shall require its contractors to include prevailing wage requirements in all subcontracts funded by this Agreement.
Subcontracts shall include all prevailing wage requirements set forth in Contractor's contracts.
(Continued on page 10 of 10)
Agreement for the Performance of Services/ Davey Tree Surgery Company Rev. 02/01/15
This Agreement may be executed in counterpm1s, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrnment; and, the Pmties agree that signatures on this Agreement, including those transmitted by facsimile, shall be sufficient to bind the Pmties.
The Pmties acknowledge and accept the tenns and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. The Effective Date is the date that the final signatory executes the Agreement. It is the intent of the Pmties that this Agreement shall become operative on the Effective Date.
APPROVED AS TO FORM:
CITY OF SANTA CLARA, CALIFORNIA
a chmtered California municipal corporation
~~~
Interim City Attorney
ATTEST:
City Manager
1500 Warbmton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Date:
By:
Title:
Address:
Telephone:
Email:
Fax: (408) 241-6771
"CITY"
DAVEY TREE SURGERY COMP ANY
an Ohio corporation
L~c___--
Senior Vice President of Operations
2617 S. Vasco Road
Live1more, CA 94550
(925) 443-1723 ext. 3217
[email protected]
"CONTRACTOR"
Agreement for the Performance of Services/ Davey Tree Surgery Company Rev. 02/01/15
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
DA VEY TREE SURGERY COMPANY
EXHIBIT A
SCOPE OF SERVICES
The Services to be perfo1med for the City by the Contractor under this Agreement are as follows:
Contractor shall provide supervision, labor, materials, equipment and all tools on a time and materials basis to safely, properly, and promptly provide tree-trimming services for power line clearance as directed by the City of Santa Clara.
On a daily basis Monday through Friday during n01mal working hours, as requested by City.
On an after-hours, emergency basis within two hours of first notification from City that emergency service is required.
All power-line-clearance tree-trimming shall be performed in a manner designed to eliminate tree contact with power lines and to optimize clearance from high-voltage electrical equipment without damaging the stmctural integrity of the tree(s).
Agreement with Davey Tree Surgery Company/Scope of Services/Exhibit A Rev. 02/01/15
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
DAVEY TREE SURGERY COMPANY
EXHIBITB
FEE SCHEDULE
In no event shall the amount billed to City by Contractor for services under this Agreement exceed three million eight hundred ninety two thousand five hundred seventy one dollars and eighty four cents ($3,892,571.84), subject to budget appropriations.
FY 17/18
FY 18/19
FY 19/20
Emergency Services
$1,097,600.00
$1,130,528.00
$1,164,443.84
$500,000.00
Years 2 and 3 reflect an anticipated contractual wage escalation between Contractor and bargaining unit.
Comnoslte TAM Man Hour Blllln• Rite
Straight Time Rate Overtime Rate
17/18 Per Man Hour $ 61.ZS $
18/19 Per Man Hour $ 63.08 $
19/20 Per Man Hour $ s,.98 $
2017 Standard Component Sdledule
Straight Time Rate Overtime Rate
Foreman s 56.87 s
armber $ s,.32 $
Aerral Uft $ 11.86
2 Ton Manual Dump $ 6.93
Traner Chraaer $ 2,17
Pickup and SI.an Board $ 6.86
Agreement with Davey Tree Surgery Company/Fee Schedule/Exhibit B Rev. 02/01/15
Double Time Rate
73.50 $ 86.97
75.70 $ 89.58
77.97 $ 92.26
Double Time Rate
70.75 s 8'.57
67.82 $ 82.26
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
DA VEY TREE SURGERY COMPANY
EXHIBIT C
INSURANCE COVERAGE REQUIREMENTS
Without limiting the Contractor's indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occun-ence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injmy
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a "pay on behalf'' basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
Agreement with Davey Tree Surge1y Company/Insurance Requirements/Exhibit C Rev. 02/01/15
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO f01m CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office f01m CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
In the event that the Work being perfo1med under this Agreement involves transp01iing of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of two million dollars ($2,000,000) per accident covering transp01iation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impai1ment Endorsement MCS90 or Insurance Services Office endorsement f01m CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS' COMPENSATION
1. Workers' Compensation Insurance Policy as required by statute and employer's liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injmy by disease.
2. The indemnification and hold hannless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in . respect to liability arising out of Contractor's work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85 .or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primaiy and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primaiy insurance as respects to, and not requiring contribution from, any other insurance which the Agreement with Davey Tree Surgery Company/Insurance Requirements/Exhibit C Rev. 02/01/15
Indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance Indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor's insurance.
3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten ( 10) days prior to the effective date of non renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thiity (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thi11y (30) days prior to the effective date of non-renewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set fo11h in Sections A through D of this Exhibit C, above.
E. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other pm1y involved with the Services who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. 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 Agreement.
Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
2. Contractor agrees to be responsible for ensuring that no contract used by any pmty involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third pm1y for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
Agreement with Davey Tree Surgety Company/Insurance Requirements/Exhibit C Rev. 02/01/15
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set f011h in this Agreement.
F. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor ( of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under fo1ms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City's approval as to adequacy of the insurance protection.
G. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement f01ms or their equivalent and the ACORD form 25-S ce11ificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set f011h below, at or prior to execution of this Agreement. Upon City's request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements.
Unless otherwise required by the te1ms of this Agreement, all ce11ificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara [Electric Depmiment]
P.O. Box 100085 -S2 or 1 Ebix Way
Duluth, GA 30096
Telephone number:
Fax number:
Email address:
H. QUALIFYING INSURERS
John's Creek, GA 30097
951-766-2280
770-325-0409
[email protected]
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A-VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Agreement with Davey Tree Surge1y Company/Insurance Requirements/Exhibit C Rev. 02/01/15
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
DA VEY TREE SURGERY COMPANY
EXHIBITD
ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO AN
AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA
Termination of Agreement for Certain Acts.
A. The City may, at its sole discretion, te1minate this Agreement in the event any one or more of the following occurs:
1. If a Contractor1 does any of the following:
a. Is convicted2 of operating a business in violation of any Federal, State or local law or regulation;
b. Is convicted of a crime punishable as a felony involving dishonesty3; c. Is convicted of an offense involving dishonesty or is convicted of fraud or a criminal offense in connection with: (1) obtaining; (2) attempting to obtain; or, (3) perfo1ming a public contract or subcontract; d. Is convicted of any offense which indicates a lack of business integrity or business honesty which seriously and directly affects the present responsibility of a City contractor or subcontractor; and/or, e. Made (or makes) any false statement(s) or representation(s) with respect to this Agreement.
For purposes of this Agreement, the word "Consultant" (whether a person or a legal entity) also refers to "Contractor" and means any of the following: an owner or co-owner of a sole proprietorship; a person who controls or who has the power to control a business entity; a general partner of a partnership; a principal in a joint venture; or a primary corporate stockholder [i.e., a person who owns more than ten percent (10%) of the outstanding stock of a corporation] and who is active in the day to day operations of that corporation. 2 For purposes of this Agreement, the words "convicted" or "conviction" mean a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea ofnolo contendere within the past five (5) years.
As used herein, "dishonesty" includes, but is not limited to, embezzlement, theft, forgery, bribery, falsification or destruction ofrecords, making false statements, failure to pay tax obligations, receiving stolen prope1iy, collusion or conspiracy.
Agreement with Davey Tree Surgery Company/Ethical Standards for Contractors/Exhibit D Rev. 02/01/15
2. If fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with the Contractor can be imputed to the Contractor when the conduct occmTed in connection with the individual's performance of duties for or on behalf of the Contractor, with the Contractor's knowledge, approval or acquiescence, the Contractor's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.
B. The City may also tenninate this Agreement in the event any one or more of the following occurs:
1. The City dete1mines that Contractor no longer has the financial capability4 or business experience5 to perfo1m the te1ms of, or operate under, this Agreement; or,
2. If City deteimines that the Contractor fails to submit inf01mation, or submits false info1mation, which is required to perfo1m or be awarded a contract with City, including, but not limited to, Contractor's failure to maintain a required State issued license, failure to obtain a City business license (if applicable) or failure to provide and maintain bonds and/or insurance policies required under this Agreement.
C. In the event a prospective Contractor ( or bidder) is rnled ineligible ( deban-ed) to pmiicipate in a contract award process or a contract is te1minated pursuant to these provisions, Contractor may appeal the City's action to the City Council by filing a written request with the City Clerk within ten (10) days of the notice given by City to have the matter heard. The matter will be heard within thirty (30) days of the filing of the appeal request with the City Clerk. The Contractor will have the burden of proof on the appeal.
The Contractor shall have the opp01iunity to present evidence, both oral and documentary, and argument.
4 Contractor becomes insolvent, transfers assets in fraud of creditors, makes an assignment for the benefit of creditors, files a petition under any section or chapter of the federal Bankruptcy Code (11 U.S.C.), as amended, or under any similar law or statute of the United States or any state thereof, is adjudged bankrupt or insolvent in proceedings under such laws, or a receiver or trustee is appointed for all or substantially all of the assets of Contractor.
Loss of personnel deemed essential by the City for the successful performance of the obligations of the Contractor to the City.
Agreement with Davey Tree Surgery Company/Ethical Standards for Contractors/Exhibit D Rev. 02/01/15
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
DA VEY TREE SURGERY COMPANY
EXHIBITE
AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS
I hereby state that I have read and understand the language, entitled "Ethical Standards" set forth in Exhibit D. I have the authority to make these representations on my own behalf or on behalf of the legal entity identified herein. I have examined appropriate business records, and I have made appropriate inqui1y of those individuals potentially included within the definition of "Contractor" contained in Ethical Standards at footnote 1.
Based on my review of the appropriate documents and my good-faith review of the necessary inquiry responses, I hereby state that neither the business entity nor any individual( s) belonging to said "Contractor" category [i.e., owner or co-owner of a sole proprietorship, general partner, person who controls or has power to control a business entity, etc.] has been convicted of any one or more of the crimes identified in the Ethical Standards within the past five (5) years.
The above asse11ions are trne and co1Tect and are made under penalty of perjury under the laws of the State of California.
DA VEY TREE SURGERY COMPANY
an Ohio corporation
By:~
Name: LARRY EV ANS
Title: Senior Vice President of Operations
NOTARY'S ACKNOWLEDGMENT TO BE ATTACHED
Please execute the affidavit and attach a notary public's acknowledgment of execution of the affidavit by the signatory. If the affidavit is on behalf of a corporation, partnership, or other legal entity, the entity's complete legal name and the title of the person signing on behalf of the legal entity shall appear above. Written evidence of the authority of the person executing this affidavit on behalf of a corporation, partnership, joint venture, or any other legal entity, other than a sole proprietorship, shall be attached.
Agreement with Davey Tree Surge1y Company/Affidavit of Compliance/Exhibit E Rev. 02/01/15
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document State Of California
County of Alameda
Subscribed and sworn to (or affirmed} before me on this t '-f day of )\ , 201 7
By . ~[V '-\ 't V Cl ,'\l',.D l
proved to me on the basis of satisfactory evidence to be the ;
person (s} who appeared before me.
Signature Of Notary
Optional Section
Number of pages ___ Date of document ________ _
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
(Not Applicable)
CITY OF SANTA CLARA, CALIFORNIA,
AND
DAVEY TREE SURGERY COMPANY
EXHIBITF
MILESTONE SCHEDULE
Agreement with Davey Tree Surgery Company/Milestone Schedule/Exhibit F Rev. 02/01/15