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RPVCCA_CC_SR_2015_06_30_D_Tree_Maintenance_Services_Agmt_West_Coast_ArboristCITY OF MEMORANDUM L�i�RANCHO PALOS VERDES TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS FROM: MICHAEL THRONE, P.E., DIRECTOR OF PUBLIC WORKS Gt� DATE: JUNE 30, 2015 SUBJECT: APPROVE FOURTH AMENDMENT FOR A ONE-YEAR CONTRACT EXTENSION FOR WEST COAST ARBORIST, INC. FOR TREE MAINTENANCE SERVICES REVIEWED: DOUG WILLMORE, CITY MANAGER A -W v>w Project Manager: Sean Larvenz, Maintenance Superintendent RECOMMENDATIONS Approve the Fourth Amendment to the Agreement and Authorize the Mayor and City Clerk to execute the Fourth Amendment to the Agreement with West Coast Arborist, Inc., for tree maintenance services. BACKGROUND This agreement is the Fourth Amendment to the Tree Trimming/Maintenance Agreement between the City of Rancho Palos Verdes ("CITY") and West Coast Arborists, Inc. ("CONTRACTOR"), dated July 7, 2009 ("Agreement'). The First Amendment, which was effective July 1, 2012, extended the term of the Agreement for one year and added additional provisions regarding the ownership of documents and work product. The Second Amendment, which was effective July 1, 2013, extended the Agreement by an additional year and added additional provisions regarding compensation, notice, insurance requirements and indemnification. The Third Amendment, which was effective July 1, 2014, extended the term of an additional year. This Fourth Amendment is effective as of July 1, 2015 and is being made to extend the term of the Agreement for one additional year. DISCUSSION The staff is requesting an additional year be added to the current West Coast Arborist, Inc. contract term. The City Tree Policy is in the final stages of review and it is not feasible to develop new contract specifications and re -compete this service contract at this time. By extending the current contract by one year we can maintain our current 1 level of service, while allowing the revised City Tree Policy to be reviewed and adopted. Once adopted, new specifications will be developed which align with the revised policy. Executing the Fourth Amendment to the Agreement will add an additional year to the current Agreement. In staff's judgement this is the most prudent course of action given the status of the City Tree Policy. FISCAL IMPACT The adopted FY 2015-2016 budget provides adequate funding for the staff recommendation. The funding sources for the contract are Street Maintenance Non - Pavement Programs, 1972 Act Landscaping and Lighting Maintenance District assessments and Waste Reduction funds. Attachments: A. Agreement for Tree Trimming/Maintenance Project (page 3) B. First Amendment to Agreement between The City of Rancho Palos Verdes and West Coast Arborist, Inc. (page 7) C. Second Amendment to Agreement between The City of Rancho Palos Verdes and West Coast Arborist, Inc. (page 8) D. Third Amendment to Agreement between The City of Rancho Palos Verdes and West Coast Arborists, Inc.(page 12) E. Draft Fourth Amendment to Agreement between The City of Rancho Palos Verdes and West Coast Arborists, Inc. (page 14) Attachment A K Attachment A CITY OF RANCHO PALOS VERDES CONTRACT FOR: 'T"ree Trimming/Maintenance Project 14TY 09-10, 10-11, 11-12 This Agreement is made and entered this . r•day of- _U_'j�_,., 200, by and between the CITY OF RANCHO PALOS VERMES, hereinafter refeed io as "City'" and West Coast Arborists, Inc., hereinafter referred to as "Contractor." WIIEREAS, Contractor and Contractor's Surety are providing the bonds attached hereto and incorporated by this reference; WHEREAS, City desires to contract with Contractor to perform the services detailed in this contract, including the Proposal; and WHEREAS, Contractor has represented that it is fully qualified to assume and discharge such responsibility. NOW, THEREFORE, the parties hereto do agree as follows I . Scope of Services. City hereby employs Contractor to perform the work and provide the services and materials for the project identified as: Trec Tritnimin, Maintenance Project 1 Y 09-10,1p 1l,ll-12, as described in these Plans and Specifications, attached hereto as Exhibit "A" and incorporated herein by this reference, including miscellaneous appurtenant work. Such work shall be performed in a good and workmanlike manner, under the terms as stated herein and in these Plans and Specifications, and in accordance with the latest edition of the Joint Cooperative Committee, Southern California Chapters of the American Public Works Association and the Associated General Contractors of America, document entitled "Standard Specifications." In the event of any conflict between the terms of this agreement and any of the above -referenced documents, the terms of this agreement shall be controlling. 2. Term of contract. This Agreement shall commence on J U, - and shall terminate o 2_ . Immediately following, the City and Contractor may extend the Agreement for three (3) one-year extensions based on their mutual written agreement. 3. Time. Upon receipt of written Notice to Proceed from the City, Contractor shall perform with due diligence the services requested by the City and agreed on by Contractor. Time is of the essence in this Agreement. 4. Compensation. In consideration of the services rendered hereunder, Contractor shall be paid according to the prices as submitted on the Bid Sheet of the Proposal, , attached hereto as a part of these Plans and Specifications in Exhibit "A" and in accordance with the Special Provisions, S. IndeJrendeni (,.ontractor. Contractor is and shall at all times remain, as to the City, a wholly independent contractor. Neither the City nor any of its agents shall have control over the conduct of Contractor or any of the Contractor's employees, except as herein set forth, and Contractor is free to dispose of all portions of its time and activities which it is not obligated to devote to the City in such a manner and to such persons, firms, or corporations at the Contractor wishes except as expressly provided in this Agreement. Contractor shall have no power to incur any debt, C- 1 R6876 -0001/1148462v3 9 obligation, or liability on behalf of the City or otherwise act on behalf of the City as an agent. Contractor shall not, at any time or in any manner, represent that it or any of its agents, servants or employees, arc in any manner agents, servants or employees of City. Contractor agrees to pay all required taxes on amounts paid to Contractor under this Agreement, and to indemnify and hold the City harmless from any and all taxes, assessments, penalties, and interest asserted against the City by reason of the independent contractor relationship created by this Agreement. Contractor shall fully comply with the workers' compensation law regarding Contractor and its employees. Contractor further agrees to indemnify and hold the City harmless from any failure of Contractor to comply with applicable workers' compensation laws. The City shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to the City from Contractor as a result of its failure to promptly pay to the City any reimbursement or indemnification arising under this Article. 6, AssiLmment. Neither this Agreement nor any part thereof shall be assigned by Contractor without the prior written consent of the City. Any such purported assignment without written consent shall be null and void, and Contractor shall hold harmless, defend and indemnify the City and its officers, officials, employees, agents and representatives with respect to any claim, demand or action arising from any unauthorized assignment. Termination. This Agreement may be canceled by City at any time without penalty upon thirty (30) days' written notice or by Contractor upon 120 days' written notice. In the event of termination without fault of Contractor, City shall pay Contractor for all services rendered prior to date of termination, and such payment shall be in full satisfaction of all services rendered hereunder. 8. Workers' Compensation Insurance. California Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, the Contractor hereby 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 under take self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract." Prgyailinst Wastes. Contractor acknowledges the provisions of the State Labor Code requiring every employer to be insured against liability for workers' compensation, or to undertake self- insurance in accordance with the provisions of that code and certifies compliance with such provisions. Contractor further acknowledges the provisions of the State Labor Code requiring every employer to pay at least the minimum prevailing rate of per diem wages for each craft, classification, or type of workman needed to execute this contract. 10. Contractor's License. Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect a Class C-27, D-49, or C-61 Contractor's license and must also have a certified arborist on staff. 1 l . Incorporation by jteference. All of the following documents are attached hereto and incorporated herein by this reference: City of Rancho Palos Verdes Instructions for Execution of Instruments; Insurance Requirements for City of Rancho Palos Verdes Public Works Contract; Payment Bond (Labor and Materials); Performance Bond; Workers' Compensation Certificate of Insurance; Agreement to Comply with California Labor L.aw Requirements; Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution; Additional Insured R6676-0001/11464620 n Endorsement (Comprehensive General Liability); Additional Insured Endorsement (Automobile Liability); and Additional Insured Endorsement (Excess Liability). 12. Conflicts of Interest. Contractor agrees not to accept any employment or representation during the term of this Agreement or within twelve (12) months after completion of the work under this Agreement which is or may likely make Contractor "financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decisions made by City on any matter in connection with which Contractor has been retained pursuant to this Agreement. 13. Suit; Recovery of Attomey Fees & Costs. Should either party to this Agreement bring legal action against the other, the validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, Venue for any such action relating to this Agreement shall be in the Los Angeles County Superior Court. Furthermore, if any legal action or other proceeding, including action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees, and other costs, in addition to any other relief to which the party may be entitled. 14, Titles. The titles used in this Agreement are for general reference only and are not part of the Agreement. 15. itntire Aareemp;1t. This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between City and Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended, or provisions or breach may be waived, only by subsequent written agreement signed by both parties. 16. Construction. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 17. Non -Waiver of Terms.mRights and R,emedi%. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by the City of any payment to Contractor constitute or be construed as a waiver by the City of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by the City shall in no way impair or prejudice any right or remedy available to the City with regard to such breach or default. 18.everabxlily. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 19. Notice. Except as otherwise required by law, any notice, request, direction, demand, consent, waiver, approval or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a) in person or (b) by certified mail, postage prepaid, and addressed to the parties at the addresses stated below, or at such other address as either party may hereafter notify the other in writing as aforementioned: To C&: Jim Bell, Director of Public Works R R6876 -0001/1148462v3 5 City of Rancho Palos Verdes 30940 Iiawthorne Blvd. Rancho Palos Verdes, CA 90275 To Contractor: Responsible Person: PATRICK MAHONEY West Coast Arborists, Inc. 2200 E. VIA BURTON'ST. 'ANAHEIM, CA 92806 A party may change its address by giving written notice to the other party. Thereafter, any notice or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery or other communication shall be deemed effective three (3) business days after it has been deposited in the United States mail. For purposes of communicating these time frames, weekends and federal, state, religious, County of I.os Angeles or City holidays shall be excluded. No communication via facsimile or electronic mail shall be effective to give any such notice or other communication hereunder. IN WITNESS WHEREOF, the parties hereto have executed the within Agreement the day and year first above written. Dated: ---- Dated: / v I ATTEST: CITY CLERK C-4 R6876 -0001H1484624 West Coa irists, c. Contractor"): BY: PAT #& MAHONEY, RESIDENT B1i The City of Rancho Palos Verdes, A Municipal Corporation ("City") BY: AL AYOR ARY l�J Attachment B L IR First Amendment to Agreement between The City of Rancho Palos Verdes and West Coast Arborist, Inc. This agreement is the first amendment to the Tree Trimming/Maintenance Project between the City of Rancho Palos Verdes ("CITY") and West Coast Arborist, Inc. ("CONTRACTOR"), dated July 7, 2009 ("Original Agreement"). This first amendment is effective as of July 1, 2012 and is being made to extend the term of the Agreement for one year. Section 1. Section 2 of the Agreement is hereby amended to read as follows: "This Agreement shall commence on July 1, 2012 and shall expire on June 30, 2013, unless sooner terminated pursuant to Section 7 of this Agreement. Additionally, there are two (2) one-year options to renew the Agreement for FY 2013-2014 and 2014- 2015 with the mutual written consent of both parties." Section 2. Except as expressly amended by this amendment to the Original Agreement, Section 15 and all other provisions of the Agreement shall remain in full force and effect as written in the Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. ATTEST: By: City Clerk CITY OF RANCHO PALOS VERDES ("CITY") K By: Maydr WEST COAST ARBORIST, INC. ("CONTRACTOR") Signature: Printed Name: PA 71hc _ rJC"7 Title: Pac-,, be4T h Attachment C betweenSecond Amendment to Agreement L and West Coast Arborist, Inc. the City of Rancho Palos Verdes This agreement is the second amendment ("Second Amendment') to the tree trimming/ maintenance agreement between the City of Rancho Palos Verdes ("City") and West Coast Arborist, Inc. ("Contractor"), dated July 7, 2009 ("Agreement"). The first amendment, which was effective July 1, 2012, extended the term of the Agreement for one year and added additional provisions regarding the ownership of documents and work product. This Second Amendment is effective as of July 1, 2013, and is being made to extend the term of the Agreement for one year more year, "Term of Contract. This Agreement shall commence on July 7, 2009 and shall terminate on June 30, 2014, unless sooner terminated pursuant to Section 7 of this Agreement. Additionally, there is one (1) one-year option to renew the Agreement for fiscal year 2014-2015 with the mutual written consent of both parties." Section 2. Section 4 of the Agreement Is hereby amended to read as follows: "Comwrisation. in consideration of the services rendered hereunder, City shall pay Contractor a not to exceed amount of two hundred and ten thousand dollars ($210,000.00) each fiscal year in accordance with the prices,.as set forth in the Bid Sheet of the Proposal, which is attached hereto as Exhibit "A' and incorporated herein by this reference." Section 3. Section 19 of the Agreement is hereby amended to read as follows: "Notice. Except as otherwise required by law, any payment, notice or other communication authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during City's regular business hours or (b) on the third business dayfollowing deposit in the United States mail, postage prepaid, to the addresses listed below, or at such other address as one party may notify the other: To C Les M. Jones II, Interim Public Works Director City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 R6876-0001 t 1541119v 1. doc Cj • Section 4. Section 2 of the attachment titled "insurance Requirements far the City of Rancho Palos Verdes Public Works Contract" is hereby amended to read as follows: "All insurance policies shall provide that the insurance coverage shall not be cancelled or modified (except through addition of additional insured to the policy) by the insurance carrier without the insurance carder giving the City thirty (30) days prior written notice thereof. Additionally, Contractor shall provide immediate notice to the City If it receives a cancellation or policy revision notice from the insurer. Contractor agrees that it will not cancel, reduce or otherwise modify said insurance coverage." §2cflon 6. Section 4 of the attachment titled "Insurance Requirements for the City of Rancho Palos Verdes Public Works Contract" Is hereby amended to read as follows: "The Contractor shall submit to the City (1) copies of the entire insurance policy for all required insurance, (2) insurance certificates Indicating compliance with the minimum workers' compensation insurance requirements above, and (3) insurance policy endorsements above, not less than one (1) day prior to commencement of performance under this Agreement. Endorsements must be executed on the City's appropriate standard forms titled "Additional Insured Endorsement," copies of which are attached hereto and incorporated herein by this reference." Section Q. The Attachment entitled 'Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution' is hereby amended to read as stated in Exhibit B, which is attached hereto and incorporated herein by this reference, Seg§ol3 Z. Except as expressly amended by this amendment to the Agreement, all of the other provisions of the Agreement, Including Amendment No. 1, shall remain In full force and effect as written In the Agreement. [Signatures on next page.) R6876-OW1115411 11M.doc Wei IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year written below. Dated: Aprll , 2013 WEST COAS BORIST C. ("Contractor') Printed Name: Patrick Mahoney Title: President Name: Richard Ma Title: CITY OF RANCHO PALOS VERDES ("City") By; A"'ds'— Mayor ATTEST: City erk Reals-ODDI N b41118vt.doc 10 3 Waiver of Subrogation and Contribultion p2_ntractor's Puty. To the maximum extent permitted by law, Contractor shall defend, indemnify, and hold the City, its elected officials, officers, employees, volunteers, agents, and those City agents serving as Independent contractors in the role of City officials (collectively "Indemnitees") free and harmless from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of every kind and nature whatsoever, in any manner arising out of or incidental to the performance of the Agreement, including without limitation, the payment of all consequential damages, aftomeys'fees, experts' fees, and other related costs and expenses (individually, a "Claim," or collectively, "Claims"). Further, Contractor shall appoint competent defense counsel approved by the City Attorney at Contractoer. own cost, expense and risk, to defend any and all such Claims that may be brought or Instituted against Indemnitees. Contractor shall pay and satisfy any judgment, award or decree that maybe rendered against Indemnitees in any such Claim. Contractor shall reimburse Indemnitees for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Contractor or Indemnitees. This indemnity shall apply to all Claims regardless of whether any insurance policies are applicable. CiyII Code Exception. Nothing in the paragraph above this one shall be construed to encompass Indemnitees' sole negligence or willful misconduct or the City's active negligence to the limited extent that the underlying Agreement is subject to Civil Code section 2782. Nonwalver of Rights. Indemnitees do not and shall not waive any rights that they may possess against Contractor because the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. Waiver of Right of 15ybMaJjg11. Contractor, on behalf of Itself and all parties claiming under orthrough it, hereby waives all rights of subrogation against the Indemnitees, while acting within the scope of their duties, from all Claims arising out of or incidental to the activities or operations performed by or on behalf of the Contractor. Survival. The provisions of this Indemnification and Hold Harmless Agreement and Waiver of Subrogation and Contribution shall survive the termination of this Agreement and are in addition to any other rights or remedies that Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under this indemnity provision, and an entry of judgment against a Contractor shall be conclusive in favor of the Indemnitee's right to recover under this indemnity provision. 86876-M11 641119v1.doe iffil Attachment D Third Amendment to Agreement between The City of Rancho Palos Verdes and West Coast Arborists, Inc. This agreement is the third amendment to the Tree Trimming/Maintenance Agreement between the City of Rancho Palos Verdes ("CITY") and West Coast Arborists, Inc. ("CONTRACTOR"), dated July 7, 2009 ("Agreement"). The First Amendment, which was effective July 1, 2012, extended the term of the Agreement for one year and added additional provisions regarding the ownership of documents and work product. The Second Amendment, which was effective July 1, 2013, extended the Agreement by an additional year and added additional provisions regarding compensation, notice, insurance requirements and Indemnification. This Third Amendment is effective as of July 1, 2014 and is being made to extend the term of the Agreement for one additional year. Section 1. Section 2 of the Agreement Is hereby amended to read as follows: "This Agreement shall commence on July 1, 2009 and shall expire on June 30, 2015, unless sooner terminated pursuant to Section 7 of this Agreement. Section 2. Except as expressly amended by this Third Amendment, all of the provisions of the Agreement, as previously amended by the First and Second Amendments, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the date and year first above written. CITY OF RANCHO PALOS VERDES ("CITY") B - eyor ATTEST: By: C --G w _ ��� City Clerk WEST COAST ARBORISTS, INC. ("CONTRACT R') Signature: 17194850 12 Printed Narne: Patrick Mahoney Title: President Signature: Printed Name: Ric Title: Assistant Secretary 17194860 13 Attachment E Fourth Amendment to Agreement between The City of Rancho Palos Verdes and West Coast Arborists, Inc. This agreement is the Fourth Amendment to the Tree Trimming/Maintenance Agreement between the City of Rancho Palos Verdes ("CITY") and West Coast Arborists, Inc. ("CONTRACTOR"), dated July 7, 2009 ("Agreement"). The First Amendment, which was effective July 1, 2012, extended the term of the Agreement for one year and added additional provisions regarding the ownership of documents and work product. The Second Amendment, which was effective July 1, 2013, extended the Agreement by an additional year and added additional provisions regarding compensation, notice, insurance requirements and indemnification. The Third Amendment, which was effective July 1, 2014, extended the term of an additional year. This Fourth Amendment is effective as of July 1, 2015 and is being made to extend the term of the Agreement for one additional year. Section 1. Section 2 of the Agreement is hereby amended to read as follows: "This Agreement shall commence on July 1, 2009 and shall expire on June 30, 2016, unless sooner terminated pursuant to Section 7 of this Agreement." Section 2. Except as expressly amended by this Fourth Amendment, all of the provisions of the Agreement, as previously amended by the First, Second and Third Amendments, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as of the date and year first above written. ATTEST: City Clerk CITY OF RANCHO PALOS VERDES ("CITY") Mayor 14 MIM =412997IMMAI V0,101 Oki [got M Ilk ("CONTRACTOR") Signature: Printed Name: Title: Signature: Printed Name: Title: 15