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West Coast Arborists Inc - FY2017-011-01 AMENDMENT NO. 1 TO AGREEMENT FOR CONTRACTUAL SERVICES THIS AMENDMENT NO. 1 TO THE AGREEMENT FOR CONTRACT SERVICES ("Amendment No. 1")by and between the CITY OF RANCHO PALOS VERDES, a California municipal corporation("City")and WEST COAST ARBORISTS,INC.,a California corporation ("Consultant") is effective as of the (, day of iu s+ , 2019. RECITALS A. City and Consultant entered into that certain Agreement for Contractual Services dated October 13, 2016 ("Agreement") whereby Consultant agreed to provide tree maintenance services until August 31,2019,for an annual not-to-exceed amount of$388,310 and a Contract Sum of$1,140,930. B. City and Consultant now desire to amend the Agreement to extend the term of the Agreement through June 30, 2020. C. The current annual not-to-exceed amount of$388,310 shall remain in effect for the remainder of Fiscal Year 2019-2020,from.September 1,2019 through to June 30,2020,and shall be prorated to $323,592. D. The Contract Sum shall be increased to$1,464,522,which represents the sum of the original Contract Sum ($1,140,930) and the prorated not-to-exceed amount for Fiscal Year 2019- 2020 ($323,592). TERMS 1. Contract Changes. The Agreement is amended as provided herein. Deleted text is indicated in strip and added text in bold italics. a. Section 2.1, Contract Sum, is hereby amended to read: "2.1 Contract Sum. Subject to any limitations set forth in this Agreement,City agrees to pay Consultant the amounts specified in the"Schedule of Compensation"attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed One - �. - One Million Four Hundred Sixty Four Thousand,Five Hundred Twenty Two Dollars($1,1'10,930.00) ($1,464,522.00) (the"Contract Sum"), unless additional compensation is approved pursuant to Section 1.8. b. Section 3.4, Term,is hereby amended to read: "3.4 Term.Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until June 30,2020 completion -- . . - - -- -•-_ - --• - . _ . . - - - _. , except as otherwise provided in the Schedule of Performance(Exhibit" D")." c. Section I of Exhibit"A",Scope of Services,is hereby amended to read: "Consultant shall perform all of the work and comply with all of the specifications and requirements in the"General Provisions"and "Special Provisions"included in the bid documents for the project entitled TREE TRIMMING/MAINTENANCE PROJECT FY 16-17,17-18,18-19 including any documents or exhibits referenced therein. This work shall include the following services: A. West Coast Arborists,Inc.shall furnish all materials,equipment,tools,labor, and incidentals as required by the specifications and contract documents.The general items of work include tree trimming, tree and stump removal, tree planting and watering, after hours service response, access to tree management software,and a GPS/GIS survey of all City trees,with an annual not-to-exceed amount of $388,310 and with a three-dear four-year base contract not-to-exceed amount of$1,110,930$1,464,522,such services to be compensated for pursuant to Section A I of Exhibit "C," Schedule of Compensation. Payment shall be disbursed monthly, based on invoice for actual City verified services rendered. d. Exhibit "C", Schedule of Compensation, is hereby replaced in its entirety with the new Exhibit "C", Schedule of Compensation (Amendment No. 1), attached hereto. e. Section I of Exhibit"D",Schedule of Performance,is hereby amended to read: "Unless earlier terminated in accordance with Article 7 of this Agreement,the term of this Agreement shall be September 1, 2016, to August 31, 2019 June 30, 2020. The City may opt to extend the term of this Agreement by up to three years, by exercising up to three one-year options,based on Contractor performance and mutual consent." 2. Continuing Effect of Agreement. Except as amended by Amendments No. 1, all provisions of the Agreement shall remain unchanged and in full force and effect.From and after the date of this Amendment No. 1, whenever the term"Agreement"appears in the Agreement, it shall mean the Agreement, as amended by Amendments No. 1 to the Agreement. 3. Affirmation of Agreement; Warranty Re Absence of Defaults. City and Consultant each ratify and reaffirm each and every one of the respective rights and obligations arising under the Agreement. Each party represents and warrants to the other that there have been no written or oral modifications to the Agreement other than as provided herein.Each party represents and warrants to the other that the Agreement is currently an effective,valid,and binding obligation. Consultant represents and warrants to City that,as of the date of this Amendment No. 1,City is not in default of any material term of the Agreement and that there have been no events that,with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. 01203.0006/560826.5 -2- City represents and warrants to Consultant that, as of the date of this Amendment No. 1, Consultant is not in default of any material term of the Agreement and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement. 4. Adequate Consideration.The parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 1. 5. Authority. The persons executing this Amendment No. 1 on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this Amendment No. 1,such party is formally bound to the provisions of this Amendment No. 1,and(iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement to which said party is bound. [SIGNATURES ON FOLLOWING PAGE] 01203.0006/560826.5 -3- IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written. CITY: CITY OF RANC • PALOS VERDES, a municipal corp•r. to 1 _6/ ii 17167 V. 6 ' ovic, Mayor ATTEST: mi y Colborn,•Clty Clerk APPROVED AS TO FORM: ALESHIRE &WYNDER, LLP A • William W. 0 der, City Attorney CONSULTANT: WEST C i T ARBORISTS, INC., a Californi. co ,oration By: ame: Patrick Mahoney itle: President By: Allt,„/Ige , ame: Richar• '• . •ney Title: Seer> . Address: 2201 . Via ' rton Street An.I eim 'A 92806 Two corporate officer signatures required when Consultant is a corporation,with one signature required from each of the following groups: 1)Chairman of the Board,President or any Vice President;and 2)Secretary,any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED,AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY. 01203.0006/560826.5 -4- t- CALIFORNIA ACKNOWLEDGMENT CIVIL CODE§1189 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 010 f OJ e I On 31)1\1 P) 1 20161 before me, Pr1me N no 131 S CA n. N()tart'MAO))& Date Here Insert Name and Title of the Officer p personally appeared 161tr(Ck M11E10he\ ono tzlc,nmmd Mhone'^`J J me 'of Signe who proved to me on the basis of satisfactory evidence to be the erson vhose name�6 subscribed to the within instrument and acknowledged to e that he/she executed the same in#is<ber kg authorized capacity ,and that bxx hisftre j signatureeon the instrument the persoridr the entity upon behalf of which the persop(§yacted,executed the instrument. ARIENE ANNA SItCAN I certify under PENALTY OF PERJURY under the COMM. 12139731 z laws of the State of Californ'. that the foregoing Notary Public-California c paragraph is true and corr . Orange County Gahm.Ex ires Jan.9,2020 WITNESS - y hand and • i ial seal. Signatu - fAA _J,L Place Notary Seal and/or Stamp Above I Signature of Notary Public OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: ❑Corporate Officer—Title(s): 0 Corporate Officer—Title(s): ❑ Partner— 0 Limited 0 General 0 Partner— 0 Limited 0 General ❑ Individual ❑ Attorney in Fact ❑ Individual 0 Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Trustee 0 Guardian or Conservator ❑ Other: 0 Other: Signer is Representing: Signer is Representing: ©2018 National Notary Association .~ Y • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 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 LOS ANGELES On ,2019 before me, ,personally appeared ,proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/560826.5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 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 LOS ANGELES On ,2019 before me, ,personally appeared ,proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/560826.5 EXHIBIT "C" SCHEDULE OF COMPENSATION, AMENDMENT NO. 1 Consultant shall perform the following tasks at the following rates: ITEM EST. CURRENT CY2019.20 ANNUAL NO. DESCRIPTION ANNUAL UNIT PRICE PRICE UNIT EXTENDED QUANTITY UNIT AMOUNT 1 Annual Grid Tree Pruning 2500 Each S 63.00 $ 65.00 $ 162,500.00 2 Service Request Pruning Mew Res 0-6"DBH 25 Each S 63.00 $ 65.00 $ 1,625.00 3 Service Request Pruning Niew Res 7-18"DBH 100 Each $ 93.00 $ 96.00 $ 9,600.00 4 Service Request PruningNiew Res 19-36"DBH 100 Each $ 173.00 $ 178.70 $ 17,870.00 5 Service Request Pruning Niew Res over 37"DBH 75 Each $ 253.00 $ 261.35 $ 19,601.25 6 King/Queen Palm Pruning 150 Each S 43.00 $ 44.40 S 6,660.00 7 Washingtonia Palm Pruning 150 Each $ 63.00 $ 65.00 S 9,750.00 8 Canary Island Date Palm Pruning 25 Each $ 153.00 $ 158.00 5 3,950.00 9 Other Palm Pruning 150 Each S 43.00 $ 44.40 S 6,660.00 10 Tree&Stump Removal 0-24"DBH 800 Dia inch S 24.00 $ 24.80 $ 19,840.00 11 Tree&Stump Removal over 25"DBH 1300 Dia inch $ 34.00 $ 35.00 S 45,500.00 12 Stump Only Removal 500 Dia inch $ 10.00 $ 10.35 S 5,175.00 13 Plant 15-gallon tree w/90-day watering 20 Each S 153.00 $ 158.00 S 3,160.00 14 Plant 24-inch box tree w/90-day watering 20 Each 5 253.00 $ 261.35 S 5,227.00 15 Plant 36-inch box tree w/90-day watering 10 Each $ 853.00 $ 881.00 S 8,810.00 16 Tree Watering 10 Day S 600.00 $ 619.80 $ 6,198.00 17 Crew Rental-3-man w/equipment 40 Hour $ 210.00 $ 216.90 S 8,676.00 18 Crew Rental-2-man w/equipment 40 Hour S 140.00 $ 144.60 S 5,784.00 19 Crew Rental-1-man w/equipment 20 Hour S 70.00 5 72.30 $ 1,446.00 20 Crew Rental-3-man Overtime w/equipment 20 Hour S 240.00 $ 247.80 S 4,956.00 21 Specialty Equipment Rental 25 Hour S 120.00 $ 124.00 S 3,100.00 22 Emergency Response Services-3-man crew 30 Hour S 300.00 $ 309.90 S 9,297.00 23 Tree Inventory Software 1 Annually $ - S - 24 GPS inventory(one-time only) 12000 Tree site $ 1.00 $ 1.00 S - 25 Tree inventory updates(adding sites/work history) 60 Hour S 60.00 S 62.00 S 3,720.00 Projected: $ 369,105.25 10 Months $ 306,357.36 Budgeted: $ 336,536.00 "CURRENT PRICE UNIT"prices shall be effective until August 31, 2019. "CY2019-20 PRICE UNIT" prices shall be effective between September 1, 2019 and June 30, 2020. II. City and West Coast Arborist acknowledge that grid trimming is the least expensive means of trimming trees. Except in unusual circumstances, trimming shall be conducted on an annual grid as described in the Grid Trimming Schedule that will be developed by the Contract Officer. The Grid Trimming Schedule shall divide the City into 9 grid areas, 3 of which shall be trimmed each year. If a tree has been trimmed based on a Service Request, Emergency/On Call Response, or other non-scheduled trimming, West Coast Arborist shall notify the Contract Officer prior to including it in the annual grid trimming. III. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task subbudget to another so long as the 01203.0006/560826.5 aggregate of the funds shifted from one Task subbudget to another does not exceed $25,000 and the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8. In no event shall funds be shifted from the amount budgeted for Annual Grid Trimming. IV. The City will compensate West Coast Arborists, Inc. for the Services performed upon submission of a valid invoice. Each invoice is to include: A. Line items for all personnel describing the work performed,the number of hours worked, and the hourly rate. B. Line items for all materials and equipment properly charged to the Services. C. Line items for all other approved reimbursable expenses claimed, with supporting documentation. D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services. V. The total compensation for the Services for Fiscal Years 2016-2017 through 2019- 2020 shall not exceed $ 1,464,522, as provided in Section 2.1 of this Agreement, and the annual amount shall not exceed $388,310. 01203.0006/560826.5 CONTRACT SERVICES AGREEMENT By and Between CITY OF RANCHO PALOS VERDES and WEST COAST ARBORISTS,INC. AGREEMENT FOR CONTRACT SERVICES BETWEEN THE CITY OF RANCHO PALOS VERDES AND WEST COAST ARBORISTS, INC. THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and entered into this j day of 6r7o8049, 2016 by and between the City of Rancho Palos Verdes, a California municipal corporation ("City") and West Coast Arborists, Inc. ("Consultant"). City and Consultant are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the"Parties". RECITALS A. Section 2.44.050 of the City of Rancho Palos Verdes' Municipal Code allows the City to utilize a cooperative purchasing method of obtaining services. Section 2.44.050 reads in full, "The city manager may purchase services, supplies and equipment for which the city would normally follow its own bid procedures from a vendor awarded a bid by another public agency if said agency utilized procedures substantially the same as those normally utilized by the city. The amount of said purchase shall be based on the price bid in the other jurisdiction." B. The City of Lomita issued a formal request for proposal for tree maintenance services, to include tree inventory, tree trimming/pruning, tree and stump removal, and planting. After reviewing the proposals, the City of Lomita awarded an agreement for tree maintenance services to West Coast Arborists, Inc. on December 9, 2015. C. The City of Lomita's bid procedures are substantially similar to the City of Rancho Palos Verdes' bid procedures. Consultant has agreed to provide similar tree care services to the City of Rancho Palos consistent with the prices, terms and conditions set forth in the City of Lomita Proposal. D. Pursuant to the City of Rancho Palos Verdes' Municipal Code, City has authority to enter into and execute this Agreement. E. The Parties desire to formalize the selection of Consultant for performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein. OPERATIVE PROVISIONS NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows: ARTICLE 1. SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Consultant shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be both of good quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Consultant's Proposal. The Scope of Service shall include the Consultant's scope of work or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental entity having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should the Consultant discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the Contract Officer. - 2 - 01203.0006/303648.8 1.6 Care of Work. The Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Consultant. Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty (180) days, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. No claims for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit"B" and any other provisions of this Agreement,the provisions of Exhibit"B" shall govern. ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT. 2.1 Contract Sum. Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference. The total compensation, including reimbursement for - 3 - 01203.0006/303648.8 actual expenses, shall not exceed One Million, One Hundred Forty Thousand, Nine Hundred Thirty Dollars ($1,140,930.00) (the "Contract Sum"), unless additional compensation is approved pursuant to Section 1.8. 2.2 Method of Compensation. The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services, less contract retention; (iii) payment for time and materials based upon the Consultant's rates as specified in the Schedule of Compensation, provided that (a) time estimates are provided for the performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not exceeded; or(iv) such other methods as may be specified in the Schedule of Compensation. 2.3 Reimbursable Expenses. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings. 2.4 Invoices. Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person. City shall independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within forty-five (45) days of receipt of Consultant's correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission. Review and payment by City for any invoice provided by the Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable law. - 4 - 01203.0006/303648.8 2.5 Waiver. Payment to Consultant for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Consultant. ARTICLE 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer but not exceeding one hundred eighty(180) days cumulatively. 3.3 Force Majeure. The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1) years from the date hereof, except as otherwise provided in the Schedule of Performance(Exhibit - 5 - 01203.0006/303648.8 ARTICLE 4. COORDINATION OF WORK 4.1 Representatives and Personnel of Consultant. The following principals of Consultant ("Principals") are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Patrick Mahoney President (Name) (Title) Richard Mahoney Assistant Secretary (Name) (Title) Rose Epperson Treasurer (Name) (Title) It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the foregoing Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant's staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. 4.2 Status of Consultant. Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant's officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant's officers, employees or • agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City's employees. Consultant expressly waives any claim Consultant may have to any such rights. - 6 - 01203.0006/303648.8 4.3 Contract Officer. The Contract Officer shall be [Sean Larvenz or] such person as may be designated by the City Manager. It shall be the Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.4 Independent Consultant. Neither the City nor any of its employees shall have any control over the manner,mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant's employees, servants, representatives or agents, or in fixing their number, compensation or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant. 4.5 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City. ARTICLE 5. INSURANCE AND INDEMNIFICATION 5.1 Insurance Coverages. The Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees and agents of City: (a) Commercial General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence - 7 - 01203.0006/303648.8 basis for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for the Consultant against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying out the work or services contemplated in this Agreement. (c) Automotive Insurance (Form CA 0001 (Ed 1/87) including"any auto" and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than $1,000,000. Said policy shall include coverage for owned, non-owned, leased,hired cars and any automobile. (d) Professional Liability. Professional liability insurance appropriate to the Consultant's profession. This coverage may be written on a "claims made" basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Consultant's services or the termination of this Agreement. During this additional 5-year period, Consultant shall annually and upon request of the City submit written evidence of this continuous coverage. (e) Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall include all of the requirements stated herein. (f) Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements in Exhibit"B". 5.2 General Insurance Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by City or its officers, employees or agents may apply in excess of, and not contribute with Consultant's insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self- insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty(30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. - 8 - 01203.0006/303648.8 No work or services under this Agreement shall commence until the Consultant has provided the City with Certificates of Insurance, additional insured endorsement forms or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City. All certificates shall name the City as additional insured (providing the appropriate endorsement) and shall conform to the following"cancellation"notice: CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL THIRTY (30)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER NAMED HEREIN. [to be initialed] Consultant Initials City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or any automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant's activities or the activities of any person or persons for which the Consultant is otherwise responsible nor shall it limit the Consultant's indemnification liabilities as provided in Section 5.3. In the event the Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, the contract between the Consultant and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Consultant is required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to City. - 9 - 01203.0006/303648.8 5.3 Indemnification. To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless the City, its officers, employees and agents ("Indemnified Parties") against, and will hold and save them and each of them harmless from, any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable ("indemnitors"), or arising from Consultant's or indemnitors' reckless or willful misconduct, or arising from Consultant's or indemnitors' negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, and in connection therewith: (a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Consultant will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. Consultant shall incorporate similar indemnity agreements with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as a result of City's sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City's negligence, except that design professionals' indemnity hereunder shall be limited to claims and liabilities arising out of the negligence, recklessness or willful misconduct of the design professional. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement. - 10 - 01203.0006/303648.8 5.4 Sufficiency of Insurer. Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City("Risk Manager") due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the risk manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager. ARTICLE 6. RECORDS,REPORTS,AND RELEASE OF INFORMATION 6.1 Records. Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the "books and records"), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant's business, custody of the books and records may be given to City, and access shall be provided by Consultant's successor in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in providing access to the books and records if a public records request is made and disclosure is required by law including but not limited to the California Public Records Act. 6.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services,the estimated increased or decreased cost estimate for the project being designed. 6.3 Ownership of Documents. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the "documents and materials") - 11 - 01203.0006/303648.8 prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and Consultant's guarantee and warranties shall not extend to such use, reuse or assignment. Consultant may retain copies of such documents for its own use. Consultant shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such documents and materials are hereby deemed "works made for hire" for the City. 6.4 Confidentiality and Release of Information. (a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer. (b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. (c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorneys fees, caused by or incurred as a result of Consultant's conduct. (d) Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. - 12 - 01203.0006/303648.8 ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION 7.1 California Law. This Agreement shall be interpreted, construed and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California. 7.2 Disputes; Default. In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant's default shall not be deemed to result in a waiver of the City's legal rights or any rights arising out of any provision of this Agreement. 7.3 Retention of Funds. Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant's acts or omissions in performing or failing to perform Consultant's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. Waiver by any party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any - 13 - 01203.0006/303648.8 right or remedy by a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections 905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement. 7.7 Termination Prior to Expiration of Term. This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days' written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Consultant reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section, the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.8 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate - 14- 01203.0006/303648.8 • such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 7.10 Liquidated Damages Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of Six Hundred Dollars ($600.00 ) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance (Exhibit "D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 8.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant's performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects her/his financial interest or the financial interest of any corporation, partnership or association in which (s)he is, directly or indirectly, interested, in violation of any - 15 - 01203.0006/303648.8 State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. 8.3 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class. 8.4 Unauthorized Aliens. Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City. ARTICLE 9. MISCELLANEOUS PROVISIONS 9.1 Notices. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer (with her/his name and City title), City of Rancho Palos Verdes, 30940 Hawthorne Blvd., California 90275 and in the case of the Consultant, to the person(s) at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. - 16 - 01203.0006/303648.8 9.4 Integration; Amendment. This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City Council. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void. 9.5 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 9.6 Warranty&Representation of Non-Collusion. No official, officer, or employee of City has any financial interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of City participate in any decision relating to this Agreement which may affect his/her financial interest or the financial interest of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any corporation, partnership, or association in which (s)he is directly or indirectly interested, or in violation of any State or municipal statute or regulation. The determination of "financial interest" shall be consistent with State law and shall not include interests found to be "remote" or "noninterests" pursuant to Government Code Sections 1091 or 1091.5. Consultant warrants and represents that it has not paid or given, and will not pay or give, to any third party including, but not limited to, any City official, officer, or employee, any money, consideration, or other thing of value as a result or consequence of obtaining or being awarded any agreement. Consultant further warrants and represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third party including, but not limited to, any City official, officer, or employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is aware of and understands that any such act(s), omission(s) or other conduct resulting in such payment of money, consideration, or other thing of value will render this Agreement void and of no force or effect. Consultant's Authorized Initials 9.7 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not - 17 - 01203.0006/303648.8 violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE] - 18 - 01203.0006/303648.8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first-above written. CITY: CITY OF RANCHO PALOS VERDES, a municipal corporation Mayor ATThST: -CP- At+, , City Clerk APPROVED AS TO FORM: ALESHIRE &WYNDER, LLP 14 r David J. Al-s ire, City Attorney CONSULTANT: WEST COAST ARBORISTS, INC. ilP By: Name: Patrick Mahoney Title: President i— By: , 1 ame:Richard Mahon- , Title: Assistant tary Address: 2200 E. Via Burton Anaheim, CA 92806 Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY. - 19 - 01203.0006/303648.8 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT M A CIVIL CODE§ 1189 At. O.A•A.sS.A.A.A.A,A .-.411‹�vcct1,dot e rtitr.5c `�.C.'�.C:� - -.. eSzct 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 Orange On October 7 , 2016 before me, Amelia I. Menzel, Notary Public Date Here Insert Name and Title of the Officer personally appeared Patrick Mahoney and Richard Mahoney Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the perso _3)whose nam s r subscn to the within instrument and acknowledged • me that tiefstref( xecuted the sam i�isflte heirOthorized capaci CDP.and that b • i' .ignatur ss on the instrument the persorS or the entity upon behalf of which the persoftacted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. AMELIA I.MENZEL WITNESS my hand and official seal. Commission#2105517 2i Notary Public•California z / _ �x r►/ YOrange County- - ' Signature, M Comm.E fres A r 2,2019 Signature t f Nota 'ublic - --- - -- a - - -E Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document:city of Rancho Palos Verdes Services Agreement Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Richard Mahoney Signer's Name: Patrick Mahoney Signer's Name: El Corporate Officer — Title(s): President _ ['Corporate Officer — Title(s): Asst.Secretary Partner — Limited 'General Partner — Limited General Individual Attorney in Fact Individual Attorney in Fact Trustee Guardian or Conservator Trustee Guardian or Conservator Other: Other: Signer Is Representing: WCA, Inc. Signer Is Representing: WCA,Inc. ass�crsz^��x��s�rs v�•v�c�c��x�i�.c�sr��c.�r^ z�z��:�.•sic,�,�•sc>�:c:�.�cxc.•cc;�,�c,�;u.�c.Y:cr_.c.u;cz.�.�:c,�.e%c.c%z:� ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 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 LOS ANGELES On , 2015 before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING: (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE 01203.0006/303648.8 EXHIBIT "A" SCOPE OF SERVICES I. Consultant shall perform all of the work and comply with all of the specifications and requirements in the "General Provisions" and "Special Provisions" included in the bid documents for the project entitled TREE TRIMMING/MAINTENANCE PROJECT FY 16- 17, 17-18, 18-19 including any documents or exhibits referenced therein. This work shall include the following services: A. West Coast Arborists, Inc. shall furnish all materials, equipment, tools, labor, and incidentals as required by the specifications and contract documents. The general items of work include tree trimming, tree and stump removal, tree planting and watering, after hours service response, access to tree management software, and a GPS/GIS survey of all City trees, with an annual not-to-exceed amount of $388,310, and with a three-year base contract not-to-exceed amount of $1,140,930, such services to be compensated for pursuant to Section A of Exhibit "C," Schedule of Compensation. Payment shall be disbursed monthly, based on invoice for actual City verified services rendered. II. As part of the Services,West Coast Arborists, Inc.will prepare and deliver the following tangible work products to the City: A. Survey of City owned trees: West Coast Arborists, Inc. shall perform a survey of City owned trees utilizing GPS and GIS systems. Data gathered in this survey shall be collected in a format compatible with the City's GIS system and shall become the property of the City. III. In addition to the requirements of Section 6.2, during performance of the Services, West Coast Arborists,Inc. shall keep the City appraised of the status of performance by providing access to and data from their tree inventory software. IV. All work product is subject to review and acceptance by the City, and must be revised by West Coast Arborists, Inc.without additional charge to the City until found satisfactory and accepted by City. 01203.0006/303648.8 EXHIBIT "B" SPECIAL REQUIREMENTS (Superseding Contract Boilerplate) I. Section 1.5 titled "Familiarity with Work" is amended to read as follows: (a) By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the scope of work to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. (b) Contractor shall promptly, and before the following conditions are disturbed, notify the City, in writing, of any: (i) material Contractor believes may be hazardous waste as defined in Section 25117 of the Health & Safety Code required to be removed to a Class I, II, or III disposal site in accordance with existing law; (ii) subsurface, unknown or latent conditions, materially different from those indicated; or (iii) unknown physical conditions at the site of any unusual nature, different from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, and will materially affect the performance of the services hereunder. (c) City shall promptly investigate the conditions, and if it finds that the conditions do materially differ, or do involve hazardous waste, and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of the work, shall issue a change order per Section 1.10 of this Agreement. (d) In the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date set, but shall proceed with all work to be performed under the Agreement. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the contracting parties. (e) City will compensate Contractor to the extent required by Government Code Section 4215 by issuing a change order per Section 1.8 of this Agreement. 01203.0006/303648.8 II. Section 1.8 titled "Additional Services" is replaced with Section 1.8 titled "Additional Work and Change Orders" to read as follows: (a) City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Work or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor("Change Order"). All Change Orders must be signed by the Contractor and Contract Officer prior to commencing the extra work thereunder. (b) Any increase in compensation of up to ten percent (10%) of the Contract Sum or $25,000, whichever is less; or any increase in the time to perform of up to one hundred eighty(180) days; and does not materially affect the Work and which are not detrimental to the Work or to the interest of the City, may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively, must be approved by the City Council. (c) Any adjustment in the Contract Sum for a Change Order must be in accordance with the rates set forth in the Schedule of Compensation in Exhibit "C". If the rates in the Schedule of Compensation do not cover the type of work in the Change Order, the cost of such work shall not exceed an amount agreed upon in writing and signed by Contractor and Contract Officer. If the cost of the Change Order cannot be agreed upon, the City will pay for actual work of the Change Order completed, to the satisfaction of the City, as follows: (i) Labor: the cost of labor shall be the actual cost for wages of workers and subcontractors performing the work for the Change Order at the time such work is done. The use of labor classifications that would increase the cost of such work shall not be permitted. (ii) Materials and Equipment: the cost of materials and equipment shall be at cost to Contractor or lowest current price which such materials and equipment are reasonably available at the time the work is done,whichever is lower. (iii) If the cost of the extra work cannot be agreed upon, the Contractor must provide a daily report that includes invoices for labor, materials and equipment costs for the work under the Change Order. The daily report must include: list of names of workers, classifications, and hours worked; description and list of quantities of materials used; type of equipment, size, identification number, and hours of operation, including loading and transportation, if applicable; description of other City authorized services and expenditures in such detail as the City may require. Failure to submit a daily report by the close of the next working day may, at the City's sole and absolute discretion, waive the Contractor's rights for that day. 01203.0006/303648.8 (d) It is expressly understood by Contractor that the provisions of this Section 1.8 shall not apply to services specifically set forth in the Scope of Work. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Work may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors. (e) No claim for an increase in the Contract Sum or time for performance shall be valid unless the procedures established in this Section are followed. III. Section 1.10 titled "Compliance with California Labor Law" is added in its entirety to read as follows: (a) Public Work. The Parties acknowledge that the work to be performed under this Agreement is a "public work" as defined in Labor Code Section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations ("DIR") implementing such statutes. The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR. Contractor shall post job site notices, as prescribed by regulation. (b) Prevailing Wages. Contractor shall pay prevailing wages to the extent required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request. By initiating any work under this Agreement, Contractor acknowledges receipt of a copy of the Department of Industrial Relations (DIR) determination of the prevailing rate of per diem wages, and Contractor shall post a copy of the same at each job site where work is performed under this Agreement. (c) Penalty for Failure to Pay Prevailing Wages. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor. (d) Payroll Records. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as 01203.0006/303648.8 specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform the City of the location of the records. (e) Apprentices. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. (f) Eight-Hour Work Day. Contractor acknowledges that eight (8) hours labor constitutes a legal day's work. Contractor shall comply with and be bound by Labor Code Section 1810. (g) Penalties for Excess Hours. Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half(11/2) times the basic rate of pay. (h) Workers' Compensation. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees. In accordance with the provisions of California Labor Code Section 1861, Contractor certifies as follows: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the rformance of the work of this contract." Contractor's Authorized Initials (i) Contractor's Responsibility for Subcontractors. For every subcontractor who will perform work under this Agreement, Contractor shall be responsible for 01203.0006/303648.8 such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement. Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any such failure by any subcontractor. IV. The first paragraph of Section 2.4, Invoices, is hereby amended to read as follows (new text is identified in underline, deleted text is identified by strike-through): Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City's Director of Finance and/or Director of Public Works. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person. IV.Section 7.10 titled "Liquidated Damages" is amended in full to read as follows: Upon receipt of invoices from Contractor for regularly scheduled work, City shall from time to time, review Arbor Access to determine where Contractor has performed work then inspect the specific areas to determine if Contractor has complied with the Agreement. Upon receipt of invoices for emergency work or request-based work, City shall, from time to time, inspect the work to determine if Contractor has complied with the Agreement. Complaints may also be generated by third parties. The Contract Officer may issue an oral warning, or if warnings are not effective, the Contractor Officer may issue a Corrective Action Request (CAR) to the Contractor. In addition to issuing the CAR, the Contract Officer may assess liquidated damages against Contractor. CARs shall be classified in the following categories: (a) Level I: A minor non-systemic non-compliance with the Agreement. Level I CARs can typically be corrected on the spot or within 24 hours. Failure of the Contractor to resolve Level I CARs within 24 hours of notification, unless otherwise specified by the Contract Officer,may result in an escalation to Level II status. (b) Level II: A serious systemic non-compliance with the Agreement or a repeated non-compliance with the Agreement. Level II CARs shall result in liquidated damages in the amount of$125 per day the Contractor does not comply with the Agreement. Failure of the Contractor to resolve Level II CARs within two (2) days of notification, or such period as the Contract Officer shall prescribe,may result in an escalation to Level III status. 01203.0006/303648.8 (c) Level III: A major systemic non-compliance with the Agreement or a repeated non-compliance which has previously been identified as a Level II CAR. Level III CARs shall result in liquidated damages in the amount of$250 per day the Contractor does not comply with the Agreement. Failure of the Contractor to resolve Level III CARs within two (2) days of notification, or such period as the Contract Officer shall prescribe, shall result in an escalation to Cure Notice status. (d) Cure Notice: An egregious systemic non-compliance with the Agreement or a repeated non-compliance which has previously been identified as a Level III CAR. Cure Notices shall result in liquidated damages in the amount of$500 per day the Contractor does not comply with the Agreement. Cure Notices require the complete and immediate attention of the Contractor. Failure of the Contractor to resolve the Cure Notice within fifteen (15) days of notification, or such period as the Contract Officer shall prescribe, may result in suspension or termination of the contract. (e) Nothing herein shall be construed as limiting City's right to terminate the Agreement for default by Contractor or otherwise limit the City's enforcement rights or remedies the Agreement. Furthermore, nothing herein shall be construed as requiring City to impose liquidated damages prior to terminating or taking other action. 01203.0006/303648.8 EXHIBIT "C" SCHEDULE OF COMPENSATION Consultant shall perform the following tasks at the following rates: ANNUAL 3 YEAR BASE ITEM ESTIMATED DESCRIPTION ANNUAL UNIT PRICE UNIT EXTENDED TERM j NO. EXTENDED QUANTITY AMOUNT AMMONT Annual Grid Trimming: Full Trim Trees in Right of Way and Park 1 locations with/without street access throughout 2500 EA $63.00 $ 157,500.00 $ 472,500.00 the City. (Inclusive of all species and sizes). Service Request 2 Trimming/View 100 EA $63.00 $6,300.00 $18,900.00 Restoration: 0-6" DBH Service Request 3 TrimmingNiew 150 EA $93.00 $13,950.00 $41,850.00 Restoration: 7-18"DBH Service Request 4 TrimmingNiew 150 EA $173.00 $25,950.00 $77,850.00 Restoration: 19-36" 01203.0006/303648.8 ESTIMATED ANNUAL 3 YEAR BASE ITEM DESCRIPTION ANNUAL UNIT PRICE UNIT EXTENDED EXTENDED QUANTITY AMOUNT . AA7<N[ONT Service Request 5 Trimming/View 75 EA $253.00 $18,975.00 I $56,925.00 Restoration:37"DBH& 1 King or Queen Palm 6 100 EA $43.00 $4,300.00 Trimming,any size $12,900.00 Washington Palm 7 Trimming,any size 100 EA $63.00 $6,300.00 i $18,900.00 Canary Island Palm 8 Trimming,any size 10 EA $153.00 $1,530.00 $4,590.00 Other Palm 9 25 EA $43.00 $1,075.00 $3,225.00 Trimming Tree and Stump Removal Per 10 0-24"DBH 1000 Dia. In. Dia. $24.00 $24,000.00 $72,000.00 In. Tree and Stump Removal Per I ] Over 25"DBH 1000 Dia. In Dia. $34.00 $34,000.00 $102,000.00 In. Per 12 Stump Removal Only 1000 Dia. In. Dia. $10.00 $10,000.00 $30,000.00 In. Tree Planting— 15 Gal. 13 Tree(includes labor, tree 80 EA $153.00 $12,240.00 $36,720.00 and 90 day watering) Tree Planting—24" Box 14 Tree(includes labor, tree 20 EA $253.00 $5,060.00 $15,180.00 and 90 day watering) I! Tree Planting—36" Box 15 Tree(includes labor,tree 10 EA $853.00 $8,530.00 $25,590.00 and 90 day watering) - 16 Tree Watering 10 17AY $600.00 $6,000.00 $18,000.00 , 17 Crew Rental—3 man 40 Per $210.00 $8,400.00 $25,200.00 crew with equipment Hour 18 Crew Rental—2 man 40 Per $140.00 $5,600.00 $16,800.00 j crew with equipment Hour Crew Rental— I man Per 19 crew with equipment 20 Hour $70.00 $1,400.00 $4,200.00 01203.0006/303648.8 ESTIMATED ANNUAL 3 YEAR BASE TERM ITEM DESCRIPTION ANNUAL UNIT PRICE UNIT EXTENDED EXTENDED QUANTITY AMOUNT AMMONT Crew Rental—3 man 20 crew with equipment- 20 Per Hour $240.00 $4,800.00 $14,400.00 Overtime 21 Specialty Equipment 40 Hour $120.00 $4,800.00 $14,400.00 Emergency/On Call Response—3 man crew Per 22 with equipment— 40 Hour $300.00 $ 12,000.00 $36,000.00 (evenings, weekends, and holidays) Tree Inventory Annu 23 Software ally $ No Fee $ No Fee $ No Fee GPS/GIS Inventory 24 12,000 Per (one time only) Tree $1.00 $ 12,000.00 $12,000.00 Site I j Tree Inventory Updates Per 25 —(adding new sites 60 Hour $60.00 $3,600.00 $10,800.00 and/or work history) iTotal Annual Base Bid $388,310.00 XX Total Three-Year Base Bid XX $1,140,930.00 II. City and West Coast Arborist acknowledge that grid trimming is the least expensive means of trimming trees. Except in unusual circumstances, trimming shall be conducted on an annual grid as described in the Grid Trimming Schedule that will be developed by the Contract Officer. The Grid Trimming Schedule shall divide the City into 9 grid areas,3 of which shall be trimmed each year. If a tree has been trimmed based on a Service Request, Emergency/On Call Response, or other non- scheduled trimming,West Coast Arborist shall notify the Contract Officer prior to including it in the annual grid trimming. III. Within the budgeted amounts for each Task, and with the approval of the Contract Officer,funds may be shifted from one Task subbudget to another so long as the the aggregate of the funds shifted from one Task subbudget to another does not exceed $25,000 and the Contract Sum is not exceeded per Section 2.1, unless Additional Services are approved per Section 1.8. In no event shall funds be shifted from the amount budgeted for Annual Grid Trimming. IV. The City will compensate West Coast Arborists, Inc. for the Services performed upon submission of a valid invoice. Each invoice is to include: 01203.0006/303648.8 A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate. B. Line items for all materials and equipment properly charged to the Services. C. Line items for all other approved reimbursable expenses claimed, with supporting documentation. D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services. V. The total compensation for the Services for Fiscal Years 2016-2017 through 2018- 2019 shall not exceed$ 1,140,930, as provided in Section 2.1 of this Agreement, and the annual amount shall not exceed $388,310. 01203.0006/303648.8 EXHIBIT "D" SCHEDULE OF PERFORMANCE I. Unless earlier terminated in accordance with Article 7 of this Agreement, the term of this Agreement shall be September 1, 2016, to August 31, 2019. The City may opt to extend the term of this Agreement by up to three years, by exercising up to three one-year options,based on Contractor performance and mutual consent. II. West Coast Arborists, Inc. shall perform all work timely in accordance with the following schedule: A. Contractor shall receive work via work order from the Contract Officer and shall perform all work timely and within 15 working days of work order receipt. Work costs shall not exceed $388,310 each fiscal year. III. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2. 01203.0006/303648.8 ESTIMATED3 YEAR BASE ITEMTERM ToDESCRIPTION ANNUAL ANNUALNDEXTENDED UNIT PRICE UNIT EXTENDED QUANTITY AMOUNT AMMONT Crew Rental—3 man Per 20 crew with equipment- 20 Hour $240.00 $4,800.00 $14,400.00 Overtime 21 Specialty Equipment 40 Per $120.00 $4,800.00 $14,400.00 Hour Emergency/On Call Response—3 man crew 22 with equipment— 40 Per $300.00 $ 12,000.00 $36,000.00 (evenings, weekends. Hour and holidays) Tree InventoryAnnu 23 1 $ No Fee $ No Fee $ No Fee Software ally GPS/GIS Inventor Per 24 y 12,000 Tree $1.00 $ 12,000.00 $12,000.00 (one time only) Site Tree Inventory Updates Per 25 —(adding new sites 60 Hour $60.00 $3,600.00 $10,800.00 and/or work history) Total Annual Base Bid $388,310.00 XX ;Total Three-Year Base Bid XX $1,140,930.00 II. City and West Coast Arborist acknowledge that grid trimming is the least expensive means of trimming trees. Except in unusual circumstances,trimming shall be conducted on an annual grid as described in the Grid Trimming Schedule that will be developed by the Contract Officer. The Grid Trimming Schedule shall divide the City into 9 grid areas,3 of which shall be trimmed each year. If a tree has been trimmed based on a Service Request, Emergency/On Call Response, or other non- scheduled trimming,West Coast Arborist shall notify the Contract Officer prior to including it in the annual grid trimming. III. Within the budgeted amounts for each Task, and with the approval of the Contract Officer, funds may be shifted from one Task subbudget to another so long as the the aggregate of the funds shifted from one Task subbudget to another does not exceed $25,000 and the Contract Sum is not exceeded per Section 2.1,unless Additional Services are approved per Section 1.8. In no event shall funds be shifted from the amount budgeted for Annual Grid Trimming. IV. The City will compensate West Coast Arborists, Inc. for the Services performed upon submission of a valid invoice. Each invoice is to include: 01203.0006/303648.8 A. Line items for all personnel describing the work performed, the number of hours worked, and the hourly rate. B. Line items for all materials and equipment properly charged to the Services. C. Line items for all other approved reimbursable expenses claimed, with supporting documentation. D. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services. V. The total compensation for the Services for Fiscal Years 2016-2017 through 2018- 2019 shall not exceed$ 1,140,930, as provided in Section 2.1 of this Agreement, and the annual amount shall not exceed $ 388,310. 01203.0006/303648.8 EXHIBIT "D" SCHEDULE OF PERFORMANCE I. Unless earlier terminated in accordance with Article 7 of this Agreement, the term of this Agreement shall be September 1, 2016, to August 31, 2019. The City may opt to extend the term of this Agreement by up to three years, by exercising up to three one-year options, based on Contractor performance and mutual consent. II. West Coast Arborists, Inc. shall perform all work timely in accordance with the following schedule: A. Contractor shall receive work via work order from the Contract Officer and shall perform all work timely and within 15 working days of work order receipt. Work costs shall not exceed $388,310 each fiscal year. III. The Contract Officer may approve extensions for performance of the services in accordance with Section 3.2. 01203.0006/303648.8