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HomeMy WebLinkAboutC-2966 - Contractor Agreement for City Tree Trimming ServicesAMENDMENT NO, FIVE TO CONTRACTOR AGREEMENT WITH WEST COAST ARBORISTS, INC., FOR CITY TREE TRIMMING SERVICES THIS AMENDMENT NO. FIVE TO CONTRACTOR AGREEMENT ( "Agreement ") is made and entered into as of the 27th day of June, 2013, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and WEST COAST ARBORISTS, INC., a California corporation ( "Contractor"), whose address is 2200 E. Via Burton Street, Anaheim, California 92806, and is made with reference to the following: RECITALS A. On December 3, 1993, City and Contractor entered into a Contractor Agreement ( "Agreement ") for general City tree maintenance services. B. On June 12, 1995, City and Contractor entered Amendment No. One to the Agreement to extend the term of the Agreement to December 4, 2004 ( "Amendment No. One "), C. On February 17, 2004, City and Contractor entered Amendment No. Two to the Agreement to extend the term of the Agreement to December 31, 2013 and increase the total compensation ( "Amendment No. Two'). D. On September 14, 2010, City and Contractor entered Amendment No. Three to the Agreement to amend the frequency and reduce the costs of certain services ( "Amendment No. Three "). E. On May 10, 2012, City and Contractor entered Amendment No. Four to the Agreement to increase the total compensation for that fiscal year only ( "Amendment No. Four"). F. City desires to enter into this Amendment No. Five to increase the total compensation ( "Amendment No. Five ") to allow for additional tree maintenance and reforestation. G. City and Contractor mutually desire to amend this Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONTRACTOR Section 4 of the Agreement, as previously amended, shall be amended in its entirety and replaced with the following: City shall pay Contractor for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Billing Schedule contained in Exhibit B of the Agreement. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed One Million Two Hundred Eighty Thousand Dollars and No1100 ($1,280,000.00) ("Total Amended Compensation ") without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 1.1 The Total Amended Compensation reflects Contractor's additional compensation for services to be performed in accordance with this Amendment No. Five in an amount not to exceed Three Hundred Thirty Thousand Dollars and Nol100 ($330,000.00). 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement, as amended shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] COAST WEST _!- •.g IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: � Aaron C. Harp M� City Attorney CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Keith D. C Mayor ATTEST: CONTRACTOR: WEST COAST Date: 7• %�'% ARBORISTS, INC., a California corporation II Date: By: W 1 ' Nk- Leilani t. Brown City Clerk By: Patrick President ey Date: LQ T By: `_ R.iqKard Mahoney Assistant Secretary [END OF SIGNATURES] WEST COAST ARBORISTS, INC. Page 3 AMENDMENT NO. FOUR TO CONTRACTOR AGREEMENT WITH WEST COAST ARBORISTS, INC. FOR CITY TREE TRIMMING SERVICE �d THIS AMENDMENT NO. FOUR TO CONTRACTO AGREEMENT ( "Amendment No. Four "), is entered into as of this X43 day of P�rly 2012, by and between the CITY OF NEWPORT BEACH, a California Municipal corporation ( "City "), and WEST COAST ARBORISTS, INC., a California corporation whose address is 7072 Thomas Street, Buena Park, California, 90621 ( "Contractor "), and is made with reference to the following: RECITALS: A. On December 3, 1993, City and Contractor entered into a Contractor Agreement for general City tree maintenance services (Agreement "). B. On June 12, 1995, City and Contractor amended the Agreement extending the term of the Agreement to December 4, 2004 ( "Amendment No. One "). C. On February 17, 2004, City and Contractor entered into a Second Amendment to the Agreement for general City tree maintenance services extending the term of the Agreement to December 4, 2013 ( "Agreement No. Two "). C. On September 14, 2010, City and Contractor entered into a Third Amendment to the Agreement to reflect negotiated reduced costs ( "Amendment No. Three "). B. Contractor provides general tree maintenance services including trimming, pruning, planting and removing of City trees ( "Project "). C. Due to unforeseen circumstances, increased tree removal services were required in the current fiscal year. D. City desires to enter into this Amendment No. Four to increase the total not to exceed compensation for the current fiscal year only as provided herein (Amendment No. Four "). NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONTRACTOR The Total Amended Annual Compensation shall be increased to One Million Seventy Thousand Dollars and 001100 ($1,070,000.00) for Fiscal Year 2011 -2012 only. The Total Amended Annual Compensation for the remaining term of the Agreement thru December 3, 2013 shall remain at Nine Hundred Fifty Thousand Dollars and 00/100 per fiscal year without prior written authorization from City ( "Total Amended Annual Compensation "). 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Four on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: q /19' //i z— By: Aaron C. Harp City Attorney t ATTEST•- Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: 51 Dtt D -41 I'z- By: Dave,K1ff City Manager CONTRACTOR: WEST COAST ARBORISTS, INC., a California corporation Date: By Patrick Mahoney, President Date: By- Richard Mahoney Asst. Secretary [END OF SIGNATURES] West Coast Arborists, Inc. Page 2 z (r AMENDMENT NO. THREE TO CONTRACTOR AGREEMENT WITH WEST COAST ARBORISTS, INC. FOR CITY TREE TRIMMING SERVICE THIS AMENDMENT NO. THREE TO CONTRACTOR AGREEMENT ( "Amendment No. Three "), is entered into as of this 14th day of September, 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal corporation ( "City "), and WEST COAST ARBORISTS, INC., a California corporation whose address is 7072 Thomas Street, Buena Park, California, 90621 ( "Contractor "), and is made with reference to the following: RECITALS: A. On December 3, 1993, City and Contractor entered into a Contractor Agreement for general City tree maintenance services ( "Agreement"). B. On June 12, 1995, City and Contractor amended the Agreement extending the term of the Agreement to December 4, 2004 ( "Amendment No. One "). C. On February 17, 2004, City and Contractor entered into a Second Amendment to the Agreement for general City tree maintenance services extending the term of the Agreement to December 4, 2013 ( "Amendment No. Two "). D. Contractor provides general tree maintenance services including trimming, pruning, planting and removing of City trees ( "Project'). E. In an effort to reduce City expenditures, Contractors were asked to reduce costs and decrease the frequency of certain services. F. City desires to enter into this Amendment No. Three to reflect the negotiated reduced costs agreed upon between the parties, as provided herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONTRACTOR Paragraph 4 of the Agreement shall be amended hereby and the following is substituted in its entirety: City shall pay to Contractor an amount not to exceed Nine Hundred Fifty Thousand Dollars and 00/100 ($950,000.00) per Agreement year without prior written authorization from City ( "Total Amended Annual Compensation "). Contractor shall submit invoices to City on a monthly basis describing the Work performed the preceeding month. Contractors bills shall include a brief description of the Services performed and /or the specific task to which the charges relate and the date and location of the Services performed. City shall Page I1 pay invoices within thirty (30) days after approval of an invoice by the City. Payment shall be deemed made when deposited in the United States mail, first class postage pre -paid, and addressed to Contractor as specified in Section entitled "Notices" in the Agreement. 1.1 The Total Amended Annual Compensation reflects Contractors reduction in rates and /or Services for a total of Two Hundred Two Thousand Seven Hundred Twenty Five Dollars and 78/100 ($202,725.78) per Agreement year. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES NEXT PAGE] Page 12 ATTEST: CITY OF NEWPORT BEACH, A California Municipal Corporation By: V4 j°o By: Leilani I. Brown 'Qj� Keith urry, Mayor City Clerk Q1 APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY�ORN0 CONTR C R: West Coast Arborists By: By: Leonie Mulvilhill NamePatrick Mahoney Assistant City Attorney Title resident By: 10, Name Richard Mahy Title Asst. Se ary Page 13 • 0 c - a966 SECOND AMENDMENT TO CONTRACTOR AGREEMENT THIS AMENDMENT is entered into this \9 tt day of February, 2004, by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City "), and West Coast Aroborists, Inc., whose address is 2200 East Via Burton Street, Anaheim, California, 92806 (hereinafter referred to as "Contractor). This Amendment is made with reference to the following: RECITALS WHEREAS, City and Contractor entered into an Agreement dated December 3, 1993, the "Agreement" wherein Contractor agreed to perform maintenance services for City trees. The term of the Agreement was for one year, initially, with the ability to be extended for up to four additional one year periods; WHEREAS, City and Contractor amended the Agreement in June 1995 and changed the term of the Agreement to a ten year extension at the current rate of compensation. The term of the Agreement was extended to December 4, 2004. The Contractor is now requesting another ten year extension at the current rate of compensation, without any cost of living increase at any time during this contract extension. WHEREAS, the City Council finds that a ten year extension of the Agreement will promote stability at a predictable cost and provide top quality tree maintenance for time certain. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: Paragraph 1. TERM of the Agreement shall be amended to read as follows: The Term of this Agreement shall be for a period of ten years, commencing December 4, 2003, unless terminated pursuant to Paragraph 30 of this Agreement. Paragraph 4. COMPENSATION TO CONTRACTOR shall be amended to read as follows: City shall pay Contractor for services rendered for each year of the ten year term according to the revised billing schedule, attached hereto as Exhibit B, and incorporated by reference into this Agreement. Tree maintenance and other services shall be established and agreed to in writing each July for the ensuing fiscal year according to City Council appr0ed budget. Contractor shall submit monthly invoices to City describing the work performed the preceding month. Contractor's bills shall include a brief description of the services performed and/or the specific task in Exhibit B to which the charge relates and the date and location of the services performed. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. Except as expressly amended by this Second Amendment to Agreement, all other terms and conditions of the December 3, 1993, Agreement and all Exhibits thereto, shall remain in full force and effect. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: CITY OF NEWPORT BEACH A Municipal Corporation By: F I. Tod W. Ridgew ayor CONTRACTOR: CITY CLERK By: APPEVETO FORM: Its: Vi(.Z ere--)IL& ASSISTANT CITY ATTORNEY F:\USERS\GSV\Shared\Parks 2004\Contract Agreements\W CA. AmenmentToContractor.1203 . doc 0 EXHIBIT B (Revised) SCHEDULE OF COMPENSATION 0 West Coast Arborists, Inc. (WCA) has carefully examined and is familiar with the tree population of the City of Newport Beach. WCA agrees to provide the following specified services to the City of Newport Beach at the Unit Price listed for the term of the second amendment to Contract or Agreement. F:\ users\ cat \shared \da\Ag \ExhibitBtoW CA.doc Unit Price Maintenance of 7,000- 10,000 trees in various $39.00 /tree locations throughout the City of Newport Beach. Specialized Services: (at request of City): Complete Tree and Stump Removal for up to 168 trees 10" average size. $13.00 /inch Stump Removal $4.00 /inch Root Prune up to 279 trees @ 10 ft each. $6.00 /inch Planting, up to: 192 15- gallon trees with root barrier — $95.00 /tree w/o root barrier $80.00 /tree 24 inch box tree with root barrier— $195.00 /tree w/o root barrier $160.00 /tree Watering $260.00 /day Crew Rental — 3 men, aerial unit, dump truck $95.00 /hour and chipper Emergency Services: Daytime Call Out/Crew Rental consisting of 3 men, aerial unit, dump truck and chipper $95.00 1hour Nighttime Call Out/Crew Rental consisting of 3 men, aerial unit, dump truck and chipper $200.00 /hour F:\ users\ cat \shared \da\Ag \ExhibitBtoW CA.doc ORIGINAL AMENDMENT TO CONTRACTOR AGREEMENT THIS AMENDMENT is entered into this 12th day of June, 1995, by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City "), and West Coast Arborists, Inc., whose address is 7072 Thomas Street, Buena Park, California, 90621 (hereinafter referred to as "Contractor ") . This Amendment is made with reference to the following: RECITALS A. WHEREAS, City and Contractor entered into an Agreement dated December 3, 1993, the "Agreement" wherein Contractor agreed to perform maintenance services for City trees; B. WHEREAS, the terms of the Agreement was for one year, initially, with the ability to be extended for up to four additional one year periods; C. WHEREAS, City and Consultant desire to amend the Agreement to change the term of the Agreement for a ten year extension at the current rate of compensation; D. WHEREAS, the City Council finds that a ten year extension of the Agreement will promote stability at a predictable cost and provide top quality tree maintenance for time certain. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: Paragranh 1. TERM of the Agreement shall be amended to read as follows: The Term of this Agreement shall be for a period of ten years, commencing December 4, 1994, unless terminated pursuant to Paragraph 30 of this Agreement. Paragraph 4. COMPENSATION TO CONTRACTOR shall be amended to read as follows: City shall pay Contractor a sum not to exceed $348,540.00 for services rendered for each year of the ten year term of this Agreement. Payment shall be made according to the billing schedule, 'attached as Exhibit B, and incorporated into this Agreement. No other price adjustment will be made. -1- Except as expressly amended by this Amendment to Agreement, all other terms and conditions of the December 3, 1993, Agreement and all Exhibits thereto, shall remain in full force and effect. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: i CLERK�411 ml N, - We= // APPROVED AS TO FORM: 04 Y ATTOR Y wb/agr/treectrt.amd -2- CITY OF NEWPORT BEACH A Municipal Corporation By: John HeAges, Mayor CONTRACTOR: WEST COAST ARBORISTS, INC. By: It", Patrick 0. Mahoney Its :-President 40 C 2966 CONTRACTOR AGREEMENT THIS AGREEMENT, entered into this✓° day of ,s/e<!�. • , 192.1 by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City "), and West Coast Arborists, Inc., whose address is 7072 Thomas Street, Buena Park, California, 90621 (hereinafter referred to as "Contractor "), is made with reference to the following: RECITALS A. The City is a Municipal Corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being.conducted under the Statutes of the State of California and the Charter of the City. B. The principal member of Contractor is Patrick O. Mahoney, President, West Coast Arborist,Inc. C. City desires to engage Contractor to perform maintenance services for City trees, including trimming, pruning, planting and removing. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The Term of this Agreement shall be for a period of one year. The term shall commence within fifteen (15) working days of City Council approval and upon receipt and approval of all required bonds and insurance. At the end of the initial term, the City will have the option to extend this Agreement for an additional period of one (1) year to commence on the first day following the last day of the initial term and on the same terms and conditions as prescribed in this Agreement. Not less than thirty (30) days before the end of the initial term of this Agreement, City shall advise Contractor in writing of its intent to extend the Agreement. The written notice may include any proposed changes in the terms and conditions of this Agreement for the extended term. This Agreement may be extended a total of four (4) times. 2. CONTRACT DOCUMENTS A. For the purpose of this Agreement, City has adopted as its Notice of Inviting Bids, Instructions to Bidders and Proposal, the City of Tustin's documents entitled "Notice Inviting Bids," including Section "C," "Specification for Contract Tree Trimming," dated January 21, 1993, and the duplicate proposal of West Coast -1- Arborist, Inc. to the City of Tustin dated February 2, 1993. This Agreement, the attached Exhibits, and the February 2, 1993, proposal together constitute the complete agreement. The documents comprising the complete Contract will be hereinafter referred to as the "Contract Documents." Copies of these contract documents are available at the City of Newport Beach, General Services Department. B. Exhibit A and the proposal dated February 2, 1993, submitted by West Coast Arborists, Inc. ( "Proposal ") to the City of Tustin will control the general provisions, materials, and methods for performance of this Agreement. C. The Contract Documents are complementary, and what is called for by any one document shall be as binding as if called for by all. Any conflict between this agreement and the proposal shall be resolved in favor of this Agreement. 3. SERVICES TO BE PERFORMED BY CONTRACTOR Contractor shall perform the services described in Exhibit A and as more particularly described in the Proposal. Contractor shall provide all labor and materials, tools, equipment and transportation services required by and in strict conformance with the Contract Documents. 4. COMPENSATION TO CONTRACTOR City shall pay Contractor a sum not to exceed $348,540.00 for services rendered during the initial term of this Agreement. Payment shall be made according to the billing schedule attached as Exhibit B and incorporated into this Agreement. Any price adjustment to the billing schedule because of the extension of this Agreement pursuant to Paragraph 1 above shall not exceed the increase (or decrease) represented in the U.S. Consumer Price Index, Pacific Cities Los Angeles - Anaheim - Riverside for September of the year for which adjustments are contemplated. 5. STANDARD OF CARE All of the work shall be performed by Contractor or under Contractor's supervision. Contractor represents that it employs the professional and technical personnel required to perform the services required by the contract documents, that it possesses appropriate field equipment to perform all services, and that it will perform all services in a manner commensurate with the 1988 Pruning Standards of Western Chapter ISA, as may be amended and the Quality Control Plan contained in the Proposal. All services will be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with the City. The Contractor shall be responsible to City for any errors omissions in the execution of this Agreement. Contractor -2- .0 • represents and warrants that it will keep in effect all licenses, permits and other approvals required to perform the described services during the term of this Agreement. 6. INDEPENDENT PARTIES City retains Contractor on an independent contractor basis and Contractor is not an employee of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Contractor's services. None of the benefits provided by City to its employees, including but not limited to unemployment insurance, worker's compensation plans, vacation and sick leave are available from City to Contractor, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer - employee relationship from any fees due Contractor. Payments of the above items, if required, are the responsibility of Contractor. 7. COOPERATION Contractor agrees to work closely and cooperate fully with City staff assigned by the General Services Director to work with Contractor and other agencies which may have jurisdiction or interest in the work to be performed. 8. CONTRACT MANAGER The Contractor shall assign the project to a Contract Manager, who shall coordinate all services to be performed. This Contract Manager shall be available to the City at all times. The Contractor has designated Patrick O. Mahoney to be its Contract Manager. 9. TIME OF PERFORMANCE Time is of the essence in this Agreement. 10. CITY POLICY Contractor will discuss and review all matters relating to policy and contract direction with the General Services Director in advance of all critical decision points in order to ensure that the services are performed in a manner consistent with City goals and policies. 11. HOLD HARMLESS A. Contractor assumes the sole risk for all the work covered by this Agreement done at the site of maintenance or in -3- preparing for delivering service and materials to the site. Contractor agrees to indemnify, defend, save and hold harmless City, its elected and appointed boards and commissions, officers, agents, and employees from and against loss, damages, liability, claims, costs and expenses for damages of any nature, but not limited to, bodily injury, death, personal injury, property damages, attorneys fees and court costs arising from any and all negligent actions of Contractor, its employees, agents or subcontractors in the performance of services under this Agreement. B. Contractor shall indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, costs and expenses whatsoever, including reasonable attorneys' fees, which may accrue to any and all persons, or business entities furnishing or supplying work, services, materials, equipment or supplies to contractor in the performance of services under this Agreement. C. In the event that Contractor and City are sued by a third party for damages caused or allegedly caused by negligent or other wrongful conduct of Contractor, or by a dangerous condition of City's property created by Contractor or existing while the property was under the control of Contractor, Contractor shall not be relieved of its indemnity obligation to City by any settlement with any such third party unless that settlement includes a full release and dismissal of all claims by the third party against the City. 12. INSURANCE A. Without limiting Contractor's indemnification of City, Contractor shall obtain and maintain at its own expense during the term of this Agreement, policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Insurance policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to exercising any right or performing any work pursuant to this Agreement. Prior to the commencement of work, Contractor shall provide to City certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements. At the option of City, Contractor shall provide copies of all policies, providing coverage as required by this Agreement, Contractor shall provide the following insurance, with Best's Class B or better carriers: 1. Worker's Compensation and Employers Liability insuring statutory Workers' Compensation limits as required by the California Labor Code and $1,000,000. (one -4- 0 million) per accident Employers' Liability; 2. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If the policy contains a general aggregate limit, then the aggregate limit shall not be less than $2,000,000 (two million) dollars; 3. Commercial auto liability and property insurance covering all owned and rented vehicles of Contractor coverage Code 1 "any auto" with a minimum amount of $2,000,000 (two million) dollars combined single limit per accident for bodily injury and property damage. B. Endorsements to the policies providing the above insurance shall be obtained by Contractor, adding the following three provisions: 1. Additional Insureds: "The City of Newport Beach and its elected and appointed boards, officers, agents, and employees as additional insureds." 2. Notice: "The policy shall not terminate, nor shall it be cancelled nor the coverage reduced, until thirty (30) days after written notice is given to City." 3. Other Insurance: "Any other insurance maintained by the City of Newport Beach shall be excess and not contributing with the insurance provided by this policy." C. Contractor shall give to City prompt and timely notice of any claim made or suit instituted arising out of Contractor's performance of this Agreement. 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. D. Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City with respect to the services of Contractor, a waiver of any right of subrogation which any such insurer of Contractor may acquire against City by virtue -5- 0 of the payment of any loss under insurance. 13. PROHIBITION AGAINST TRANSFERS Contractor may not assign any right or obligation of this Agreement or any interest in this Agreement by operation without prior written consent of City. Any attempted or purported assignment without consent of City shall be null and void. Contractor may not employ any subcontractors unless specifically authorized by City. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25%) or more of the assets of the corporation, partnership or joint venture. 14. REPORTS All Contractors books, and other business records, or such part as may be used in the performance of this Agreement shall be subject to inspection and audit by any authorized City representative during regular business hours. No report, information or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. Contractor shall, at such time and in such forms as City may require, furnish reports concerning the status of services required under this Aareement. 15. CONFIDENTIALITY The information which results from the services in this Agreement is to be kept confidential unless the release of information is authorized by the City. 16. CITY'S RESPONSIBILITIES City shall furnish to Contractor, maps, ordinances, data and other existing information as may be requested by Contractor necessary for Contractor complete the work contemplated by this Agreement. City further agrees to provide all such materials in a timely manner so as not to cause delays in Contractor's work schedule. 17. ADMINISTRATION This Agreement will be administered by the General Services Q:fl `• • Department. The General Services Director or his /her designees shall be considered the Administrator and shall have the authority act for the City under this Agreement. The Administrator or his /her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. mIRMORTI Any changes from the services described in the Proposal and Exhibit A or additional work not contemplated by this Agreement shall require the written direction and authorization of the General Services Director. No additional compensation for any extra work will be paid without City Council approval, except for work authorized by City Manager in emergency situations after declaration of a state or local emergency. 19. RECORDS Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. DISPUTES PERTAINING TO PAYMENT FOR WORK. Should any dispute arise respecting whether any delay is excusable, or its duration, or the value of the work done, or of any work omitted, or of any extra work which Contractor may be required to do, or respecting any payment to Contractor during the performance of the Agreement, such dispute shall be decided by the City Manager and his decision shall be final and binding upon Contractor and his sureties. 21. REIMBURSEMENT FOR EXPENSES Contractor shall not be reimbursed for any disposal fees or other expenses unless authorized in writing by City. 22. MONTHLY INVOICES Contractor shall submit invoices to the City on a monthly basis in accordance with Exhibit B. Each invoice will be itemized. Each billing will include a listing of completed work by address and tree species and other appropriate data acceptable to the City. The listing will be provided by written report and computer disk. -7- .• i 23. LABOR AND PERFORMANCE BONDS. Contractor shall furnish, concurrently with the execution of this Agreement, the following: (1) a surety bond in an amount equal to one hundred percent (100 %) of the contract price as security for the Faithful Performance of this Agreement, and (2) a separate surety bond in an amount equal to at least one hundred percent (100 %) of the contract price as security for the payment of all persons furnishing labor or materials in connection with the work under this Agreement. Both the Surety and Surety Form must be satisfactory to City. The rights and remedies available to City pursuant to this paragraph shall be cumulative with all rights and remedies available to City pursuant to statutory and common law. All rights and remedies are expressly reserved, and neither the furnishing of the Bonds, nor acceptance by City, shall constitute a waiver of any other rights or remedies available to City against Contractor. 24. PAYMENT OF COMPENSATION City shall make payments to Contractor within thirty (30) days of receiving a monthly invoice unless City disputes the amount Contractor claims is owned under this Agreement. 25. LABOR A. Contractor shall pay no less than the prevailing wage rates as required by Section 1771 and 1774 of the California Labor Code. Contractor shall conform with all applicable provisions set forth in the Labor Code, and the Federal Fair Labor Standards Act. B. Pursuant to the provisions of 1775 of the Labor Code, Contractor shall forfeit to the City, as a penalty, the sum of $25.00 for each calendar day, or portion thereof, for each laborer, worker, or mechanic employed, paid less than the stipulated prevailing rates for any work done under this Contract, by him or by any Subcontractor under him, in violation of the provisions of this Agreement. C. Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Agreement, Contractor shall immediately give notice to City, including all relevant information. 26. NONDISCRIMINATION BY CONTRACTOR Contractor represents and agrees that it does not and will not discriminate against any subcontractor, consultant, employee or applicant for employment because of race, religion, color, sex, am • • handicap or national origin. Such nondiscrimination shall include, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 27. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS City reserves the right to employ other contractors in connection with this project. 28. CONFLICTS OF INTEREST A. The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable financially affect such interest. The Contractor will provide a completed disclosure form noting the above . B. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Contractor shall indemnify and hold harmless the City for any claims for damages resulting from the Contractor's violation of this Section. 29. NOTICES All notices, demands, requests or approvals to be given under this Agreement must be given in writing and will be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92659 -1768 Attention: General Services Director MM C� CJ All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Mr. Patrick 0 Mahoney, President West Coast Arborists, Inc. 7072 Thomas Street Buena Park, CA 90621 30. TERMINATION A. In the event Contractor fails or refuses to timely perform any of the provisions of this Agreement in the manner required or if Contractor violates any provisions of this Agreement, Contractor shall be deemed in default. If such default is not cured within a period of two (2) working days, or if more than two (2) working days are reasonably required to cure the default and Contractor fails to give adequate assurance of due performance within two (2) working days after Contractor receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. B. This Agreement may be terminated by either party, without cause, upon 30 days' written notice. Upon termination of this Agreement by City under this Section, City shall pay to the Contractor. that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 31. COST OF LITIGATION If any legal action is necessary to enforce any provision of this Agreement, or for damages by reason for an alleged breach of any provisions of this Agreement, the parties agree that the court with jurisdiction over the action may determine and fix reasonable attorneys' fees and expenses to be paid to the successful party. 32. COMPLIANCES Contractor represents that it is familiar with and shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City which are applicable to the performance of services under this Agreement. 33. WAIVER A waiver by City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. -10- 34. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties and all preliminary negotiations and agreements of whatsoever kind or nature are merged in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: CITY CLERK APPROVE -5 AS T CITY ATTORNEY CITY OF NEWPORT BEACH A Kupicipal Corporation CONTRACTOR Y Its: ub/agr/treectrt.agt: 11/12/93 EXHIBIT A SPECIFICATIONS FOR CONTRACT TREE TRIMMING SCOPE OF SERVICES The contractor shall provide the following services and meet the following specifications: A. REQUIRED QUALIFICATIONS 1. Contractor must hold a State of California Contractor's License (C -27). 2. Contractor must comply with the Quality Control Plan provided in the Proposal. 3. Contractor must annually submit to the General Services Director current OSHA certification of all aerial devices to be used during this project. B. PRUNING STANDARDS AND SPECIFICATIONS 1. All work shall conform to the 1988 Pruning Standards of the Western Chapter ISA, and any later amendments, the Proposal and these specifications. In all cases the City's representative shall have complete and sole discretion in determining conformance and acceptability of trees trimmed by the Contractor. Trimmed trees rejected by the City's representative shall be excluded from payment. 2. Contractor shall raise lower limbs on the street side and to the sidewalk side, where practical, to a minimum height of 1316" from the top of the curb, without detracting from the natural shape of the tree. Contractor shall trim to clear street lights within five (5) feet. 3. Contractor shall comply with Standards of CAL OSHA and the American National Standard Institute, Z133.1 -1988, Safety Requirements. 4. Contractor shall provide and post no parking signs 48 hours in advance of the work. 5. The Contractor shall endeavor to maintain good public relations at all times. The work shall be conducted in a manner which will cause the least possible interference and annoyance to the public. Work shall be performed by competent employees and supervised by an experienced supervisor in tree trimming operations. The contractor shall be responsible for notifying the residents at each work location of the intended tree operations. The contractor shall be responsible to see that private property and vehicles at work locations are not endangered or damaged during the course of work. Sign stands, delineators and /or cones shall be used to identify work site for vehicular and pedestrian safety. The contractor shall exercise precautions as necessary when working adjacent to aerial utilities. In the event that aerial utility wires present a hazard to the contractor's personnel or others near the work site, work is to immediately cease and the appropriate utility company notified. Work shall then commence in accordance with instructions from the utility company. 7. No hooks, gaffs, spurs or climbers will be used by anyone employed for such trimming. Any vine plant growing on the trees shall be removed at ground level. 8. Final pruning cuts shall be made without leaving stubs. Cuts shall be made in a manner to promote fast callous growth. 9. Brush and debris shall be removed daily, sidewalks swept, parkways raked, and gutters cleaned. 10. Unless otherwise approved, trees are to be trimmed block by block, subject to the instructions of the General Services Director or his authorized representative. 11. When trimming fungus, disease or fire blight infected limbs or fronds, all pruning tools shall be cleaned after each cut with alcohol or bleach. 13. Topping shall not be done without prior approval of the City. C. SCHEDULE OF WORK AND HOURS OF OPERATION 1. The Contractor shall, prior to commencing work, submit and gain approval of a weekly work schedule indicating the order and location of work. 2. The general hours of operations shall be 7:00 a.m. to 5:00 p.m., Monday through Friday or as directed by City. Any equipment operations generating harsh or unusual noise such as chippers, leaf blowers, etc., must not be used before 8:00 a.m. No work may be performed on weekends or City recognized holidays except in the case of emergency. 3. In addition, the Contractor, field leadman or foreman shall meet with the City's representative on Monday D. E. between 8:30 and 9:00 a.m. for the purpose of reviewing the week's work, receiving special instructions, and to discuss any problems encountered on the job. CLEAN UP 1. The Contractor shall clean all job sites when work is completed, including sap removal from walkways, raking of leaves, twigs, etc. from the lawn and parkway and the sweeping of the sidewalks and streets. 2. Each day's scheduled work shall be completed and cleaned up and under no circumstances shall any sap, brush, street overnight. 3. The General Services Director, or his authorized representative, shall be the sole judge as to the adequacy of the clean up. OF MATERIALS This signed agreement will be considered prima facie evidence that the Contractor has carefully examined the site of work, the proposal and this agreement, and is satisfied as to the conditions to be encountered as to the character, quality and quantities of work to be performed and as to the requirements of this agreement. The trees are in various locations throughout the City. For exact locations contact Park and Street Tree Superintendent at 644 -3162. F. DISPOSAL OF MATERIALS 1. All tree branches produced as a result of the Contractor's, operations under this contract will be reduced, reused, recycled, and /or transformed. Documentation such as bills of lading will be required as proof of final disposal. 2. Reducing will include, but not be limited to chipping, grinding, and /or shredding operations. Disposal is to be at a recycling yard for use in a tub grinding and mulching program, such as the program at Golden Coast Sawdust Products, 7975 Irvine Blvd., Irvine, CA. 3. Reusing will include, but not be limited to, using chipped, ground, or shredded tree material as mulch. If the Contractor has a location outside the City where such mulch may be applied, he is to provide to the General Services Director documentation from the property owner indicating location and amount of material that will be used. 4. Recycling will include, but not be limited to, chipped, ground, or shredded tree material used to produce compost utilizing either a low or high technical methodology. 5. Transformation will include, but not be limited to, fire wood that is too large to be chipped, ground, or shredded for use as mulch. If wood is to kept for firewood by the contractor, the Contractor must provide to the General Services Director proof of such an operation. G. INSPECTION H. SIGNS The General Services Director, or his designated representative, shall at all times have access to the work and shall be furnished with every reasonable facility for ascertaining full knowledge respecting the progress, workmanship and character of materials and equipment used and employed in the work. The inspection of the work shall not relieve the Contractor of any of his obligation to fulfill the contract and /or complete the project as prescribed. Defective work shall be made good notwithstanding the fact that such defective work may have been previously overlooked by the General Services Director or his designated representative and accepted for payment. The Contractor shall equip each vehicle used in the City with signs that read, "Tree Maintenance Services Contractor for the City of Newport Beach." 1. Contractor will provide brochures that are acceptable to the General Services Director that describe the tree trimming process and are readily accessible to the citizens of Newport Beach. 2. Public notice of the Tree Trimming Program will be supplied by the Contractor with final approval by the City Manager or his representative. J. PICTURES Upon request, Contractor will supply representative pictures of "Before and After" trimming that are suitable for reproduction. K. SAFETY 1. The Contractor shall conform to all City of Newport Beach Traffic Safety requirements and operating rules at all times while this contract is in effect. Contractor shall use the Cal Trans Standard Watch Manual as a reference for all street operations. 2. The Contractor will be responsible for supplying and using all safety equipment necessary to close or delineate traffic lanes to through traffic. This is to include a high visibility Arrow Board or Arrow Boards. All traffic safety equipment must be approved for use, by the City, prior to use. 3. A traffic control plan will be submitted to the General Services Director ten (10) days prior to starting this contract. L. DOCUMENTATION Contractor will provide on a monthly basis to the Parks & Street Tree Superintendent a report of any changes noted or performed by the Contractor to the existing Street/ Park Tree Inventory. The City of Newport Beach reserves the right to adjust quantities to this contract. These adjustments will be determined by the General Services Director relative to the needs of the City of Newport Beach. wb \tustree.ent (: Exhibit B SCHEDULE OF COMPENSATION rb West Coast Arborists, Inc. has carefully examined the tree population of the City of Newport Beach and agrees to provide the following specified services to the City of Newport Beach for an initial term of one year. The City of Newport Beach will have the right to extend the Agreement yearly with annual .price adjustments to be negotiated at that time, however not to exceed the increase (or decrease) represented in the U.S. Consumer Price Index for the preceding twelve month period. Unit Price Extended Price Maintenance of 7,480 trees in various locations throughout the City of Newport Beach. $ 39.00 /tree $291,720.00 Specialized Services: (at request of City) Complete Tree and Stump Removal for up to 168 trees 10" average size. $ 13.00 /inch $ 21,840.00 Stump removal only $ 4.00 /inch Root Prune up to 279 trees @ loft each. $ 6.00 /foot Planting, up to: 192 15- gallon trees with root barrier- $ 95.00 /tree w/o root barrier $ 80.00 /tree 24 inch box tree with root barrier- $195.00 /tree w/o root barrier $160.00 /tree Watering $260.00 /day Crew Rental - 3 men, aerial unit, dump truck and chipper $ 95.00 /hour Emergency Services Daytime Call Out /Crew Rental consisting of 3 men, aerial unit, dump truck and chipper $ 95.00 /hour Nighttime Call Out /Crew Rental consisting of 3 men, aerial unit, dump truck and chipper $200.00 /hour $ 16,740.00 $ 18,240.00