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19-174 Amendment #3 date 6-25-24 On call arborist1 THIRD AMENDMENT TO AGREEMENT 19-174 BETWEEN THE CITY OF CUPERTINO AND HORTSCIENCE | BARTLETT CONSULTING FOR ON CALL ARBORIST This Third Amendment to Agreement 19-174 is by and between the City of Cupertino, a municipal corporation (hereinafter "City") and HortScience | Bartlett Consulting, a corporation (“Contractor”) whose address is 2550 Ninth Street, Suite 112, Berkeley, CA 94710, and is made with reference to the following: RECITALS: A. On September 9, 2019, Agreement 19-174 (“Agreement”) was entered into by and between City and Contractor for on call arborist services. B. On June 13, 2022, City and Consultant entered into a First Amendment to the Agreement. C. On April 6, 2023, City and Consultant entered into a Second Amendment to the Agreement. D. The Agreement, First Amendment and Second Amendment are collectively referred to as the “Agreement”, unless otherwise indicated. E. City and Contractor desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. TIME OF PERFORMANCE Paragraph 3 of the Agreement is modified to read as follows: 3.1 Term. This Agreement begins on the Effective Date and ends on June 30, 2025 ("Contract Time"), unless terminated earlier as provided herein. 3.2 Schedule of Performance. Contractor must deliver the Services within the time specified in each Service Order, and under no circumstances should the Services go beyond the Contract Time. 3.3 Time is of the essence for the performance of all the Services required in this Agreement and in each Service Order. Contractor must have sufficient time, resources and qualified staff to deliver the Services on time. Contractor must respond promptly to each Service Order request. 2 2. COMPENSATION Paragraph 4 of the Agreement is modified to read as follows: 4.1 Maximum Compensation. City will pay Contractor for satisfactory performance of the Services a total amount that will based upon actual costs but that will be capped so as not to exceed $87,435 ("Contract Price"), based upon the Scope of Services in Exhibit A-1 and the budget and rates included. The maximum compensation includes all expenses and reimbursements and will remain in place even if Contractor's actual costs exceed the capped amount. 4.2 Per Service Order. Compensation for Services provided under a Service Order will be based on the rates set forth in the Service Order, which shall not exceed the capped amount specified in the Service Order. 4.3 Invoices and Payments. Except as otherwise provided in a Purchase Order, monthly invoices must state a description of the deliverables completed and the amount due for the preceding month. Thirty days prior to expiration of the Agreement, Contractor must submit a requisition for final and complete payment of costs and pending claims for City approval. Noncompliance with this requirement relieves City of any further payment or other obligations under the Agreement. 3 Exhibit A-1 to the Agreement is replaced with Exhibit A-2, attached hereto. 4. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE TO FOLLOW 3 IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be executed. CITY OF CUPERTINO By Title Date APPROVED AS TO FORM City Attorney ATTEST: City Clerk Date HORTSCIENCE | BARTLETT CONSULTING By Title Date EXPENDITURE DISTRIBUTION Item PO Number Amount Base $30,000 1st Amendment $22,435 2nd Amendment $10,000 3rd Amendment $25,000 Total $87,435 Executive Vice President Jun 25, 2024 Christopher D. Jensen Benjamin Fu Director of Community Development Jun 25, 2024 Kirsten Squarcia Jun 25, 2024 1,\ ) H0RT SCIENCE BARTLETT CONSULTING City of Cupertino Scope of Services Update the current City-approved list of privacy protection trees/shrubs. Provide professional input on value of removed trees to determine the replacement tree(s) or in-lieu fee value. Provide best practice standards for required trees due to new development. Peer review applicant-submitted arborist reports. Prepare tree condition reports on behalf of the City for development projects. Evaluate sites post-construction and provide suitability audit reports. Advise City staff on all matters related to construction near and in Tree Protection Zones (TPZ). Monitor contractor grading, root pruning, tree trimming, tree protection fence installation, irrigation and fertilization/mulching of existing trees during construction, utility trenching in TPZ, and any other construction activities that could affect existing trees. Report on tree conditions, both orally and in written form, and provide an accurate and detailed assessment of trees' species, size, health, evaluation of root conditions, structure, risk factors and monetary value. Provide pest and disease diagnostics and provide protection strategies from the physical stress of construction. All documents generated by the Consulting Arborist will be delivered electronically by email unless requested in another format. Supplemental tasks may be assigned as needed. HortScience I Bartlett Consulting 325 Ray St. Pleasanton,CA 94566 phone 925.484.0211 1 fax 925.484.5096 I www.hortscience.com EXHIBIT A-2 Fee Schedule HortScience | Bartlett Consulting June 2024 Fee Schedule – City of Cupertino Expert witness $350.00/hour Managing Consultants $240.00/hour Consultants $200.00/hour Arborist $180.00/hour Administrative staff $80.00/hour Hourly fees are portal-to-portal. Direct expenses such as reproduction and shipping shall be reimbursed at cost plus 15%. Mileage shall be reimbursed at the latest published IRS rate, currently $0.67 per mile (from Berkeley). HortScience│Bartlett Consulting ● Divisions of The F.A. Bartlett Tree Expert Company 2550 Ninth Street Suite 112, Berkeley, CA, 94710, 925.484.0211 ● www.hortscience.com SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY 12/1/2023 York International Agency,LLC Attn.bartlettcert@yorkintl.com 500 Mamaroneck Avenue Harrison NY 10528 914-376-2200 914-376-2891 Travelers Property Casualty Company of America 25674 The Travelers Indemnity Company 25658HortScience|Bartlett Consulting Divisions of The F.A.Bartlett Tree Expert Company 2550 Ninth St Suite 112 Berkeley CA 94710 Federal Insurance Company 20281 Colony Insurance Company 39993 1115195025 A X 2,000,000 X 2,000,000 10,000 2,000,000 5,000,000 X TC2J-GLSA-1005A129-TIL-23 12/1/2023 12/1/2024 4,000,000 A 3,000,000 X X X TC2J-CAP-1005A130-TIL-23 12/1/2023 12/1/2024 C X X 10,000,0007975254212/1/2023 12/1/2024 10,000,000 B A XUB-7N673715-23-51-R UB-7N781486-23-51-K 12/1/2023 12/1/2023 12/1/2024 12/1/2024 1,000,000 1,000,000 1,000,000 D Professional Liability CPLUS4278274 12/1/2023 12/1/2025 Each Act/Aggregate 5,000,000 The City of Cupertino,its City Council,officers,officials,employees,agents,servants and volunteers are included as additional insureds with respect to Commercial General Liability,Automobile Liability,Umbrella Liability and Professional Liability for work performed by HortSciencel Bartlett Consulting where required by written contract.Coverage is primary and non-contributory.Waiver of Subrogation applies in favor of the additional insureds.Certificate Holder is scheduled to receive 30 day notice of cancellation. The City of Cupertino Community Development Department Attn:Ellen Yau 10300 Torre Ave Cupertino CA 95014 ENDORSEMENT WC 00 03 13 (00) - POLICY NUMBER: EMPLOYERS LIABILITY POLICY AND WORKERS COMPENSATION WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT 002 ONE TOWER SQUARE HARTFORD CT 06183 UB-7N781486-23-51-K We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule. SCHEDULE DESIGNATED ORGANIZATION: DESIGNATED PERSON: ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. INCLUDING: ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. DATE OF ISSUE:PAGEST ASSIGN: OF12-01-23 1 1 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED – PRIMARY AND NON-CONTRIBUTORY WITH OTHER INSURANCE © 2016 The Travelers Indemnity Company. All rights reserved. Includes copyrighted material of Insurance Services Office, Inc. with its permission. Page 1 of 1CA T4 74 02 16 This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM PROVISIONS 1.The following is added to Paragraph A.1.c., Who Is An Insured , of SECTION ll – COVERED AUTOS LIABILITY COVERAGE : This includes any person or organization who you are required under a written contract or agreement between you and that person or organization, that is signed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to name as an additional insured for Covered Autos Liability Coverage, but only for damages to which this insurance applies and only to the extent of that person's or organization's liability for the conduct of another "insured". 2.The following is added to Paragraph B.5., Other Insurance of SECTION IV – BUSINESS AUTO CONDITIONS: Regardless of the provisions of paragraph a. and paragraph d. of this part 5. Other Insurance, this insurance is primary to and non-contributory with applicable other insurance under which an additional insured person or organization is the first named insured when the written contract or agreement between you and that person or organization, that is signed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, requires this insurance to be primary and non-contributory. TC2J-CAP-1005A130-TIL-23 COMM RCI L G NERA L IAB L TYEAELII T IS ENDORSEMENT CHANGES T E POLICY. 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Insurance Requirements for Professional/Specialized Services Agreement 1 Version: Jan. 2022 Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance and results of the Services hereunder by the Contractor, his agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, contractual liability, property damage, bodily injury, and personal and advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Project (ISO CG 25 03 or 25 04) or it shall be twice the required occurrence limit. a. It shall be a requirement under this agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (1) the minimum coverage/limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under Contractor's policy shall be "primary and non- contributory," will not seek contribution from City’s insurance/self-insurance, and shall be at least as broad as ISO CG 20 10 04 13 c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect City as a named insured. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or, if Contractor has no owned autos, then hired autos (Code 8) and non-owned autos (Code 9), with limits no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers’ Compensation: As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. (Not required if Contractor provides written verification it has no employees). 4. Professional Liability. Insurance which includes coverage for professional acts, errors and omissions, with limits no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate (if applicable). If Contractor maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and higher insurance limits maintained by Contractor. OTHER INSURANCE PROVISIONS The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City of Cupertino, its City Council, officers, officials, employees, agents, servants and volunteers are to be covered as additional insureds on the CGL and automobile liability policies with respect to liability arising out of the Services performed by or on behalf of Contractor including materials, parts, or equipment furnished. Endorsement of CGL coverage shall be at least as broad as ISO Form CG 20 10 11 85 or if not EXHIBIT C Insurance Requirements Professional/Specialized Services Agreement Insurance Requirements for Professional/Specialized Services Agreement 2 Version: Jan. 2022 available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used. Primary Coverage For any claims related to this Contract, the Contractor’s insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of Contractor’s insurance and shall not contribute to it. Notice of Cancellation Each insurance policy shall state that coverage shall not be canceled or allowed to expire, except with written notice to City 30 days in advance or 10 days in advance if due to non-payment of premiums. Waiver of Subrogation Contractor grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Self-Insured Retentions City may approve self-insured retentions and require proof of Contractor’s ability to pay losses and related investigations, claim administration and defense expenses within the retention. The policy shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. Acceptability of Insurers Insurers must be acceptable to City and licensed to do business in California, and each insurer must have an A.M. Best’s financial strength rating of “A” or better and a financial size rating of “VII” or better. Claims Made Policies (applicable only to professional liability) If any of the required policies provide coverage on a claims-made basis: 1. The Retroactive Date must be shown and must be before the Effective Date of the Contract. 2. Insurance must be maintained for at least five (5) years after completion of the Services. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Contract Effective Date, the Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the Services. Verification of Coverage Contractor shall furnish the City with acceptable original certificates and mandatory endorsements (or copies of the policies effecting the coverage required by this Contract), and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City prior to commencing the Services. City retains the right to demand verification of compliance at any time during the Contract. Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. Insurance coverage shall not limit Contractor’s duties to indemnify, defend and hold City harmless. City reserves the right to modify these requirements based on the nature of the risk, prior experience, insurer, coverage or other special circumstances. On call arborist Final Audit Report 2024-06-26 Created:2024-06-19 By:Webmaster Admin (webmaster@cupertino.org) Status:Signed Transaction ID:CBJCHBCAABAAbGM2gRxO-HPvSPGXOSomRRMZSlFIHvMb "On call arborist" History Document created by Webmaster Admin (webmaster@cupertino.org) 2024-06-19 - 4:58:35 PM GMT- IP address: 35.229.54.2 Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval 2024-06-19 - 5:03:36 PM GMT Document approved by Araceli Alejandre (aracelia@cupertino.org) Approval Date: 2024-06-24 - 9:05:02 PM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to contracts@bartlett.com for signature 2024-06-24 - 9:05:05 PM GMT Email viewed by contracts@bartlett.com 2024-06-24 - 10:23:54 PM GMT- IP address: 146.75.222.0 Signer contracts@bartlett.com entered name at signing as Matthew Farin 2024-06-25 - 12:34:19 PM GMT- IP address: 69.115.173.154 Document e-signed by Matthew Farin (contracts@bartlett.com) Signature Date: 2024-06-25 - 12:34:21 PM GMT - Time Source: server- IP address: 69.115.173.154 Document emailed to christopherj@cupertino.gov for signature 2024-06-25 - 12:34:23 PM GMT Email viewed by christopherj@cupertino.gov 2024-06-25 - 1:21:27 PM GMT- IP address: 136.24.22.111 Signer christopherj@cupertino.gov entered name at signing as Christopher D. Jensen 2024-06-25 - 2:42:45 PM GMT- IP address: 136.24.22.194 Document e-signed by Christopher D. Jensen (christopherj@cupertino.gov) Signature Date: 2024-06-25 - 2:42:47 PM GMT - Time Source: server- IP address: 136.24.22.194 Document emailed to benjaminf@cupertino.gov for signature 2024-06-25 - 2:42:49 PM GMT Email viewed by benjaminf@cupertino.gov 2024-06-25 - 4:25:15 PM GMT- IP address: 104.28.123.101 Signer benjaminf@cupertino.gov entered name at signing as Benjamin Fu 2024-06-26 - 0:22:38 AM GMT- IP address: 64.165.34.3 Document e-signed by Benjamin Fu (benjaminf@cupertino.gov) Signature Date: 2024-06-26 - 0:22:40 AM GMT - Time Source: server- IP address: 64.165.34.3 Document emailed to kirstens@cupertino.gov for signature 2024-06-26 - 0:22:42 AM GMT Email viewed by kirstens@cupertino.gov 2024-06-26 - 0:25:15 AM GMT- IP address: 104.47.73.254 Signer kirstens@cupertino.gov entered name at signing as Kirsten Squarcia 2024-06-26 - 0:25:37 AM GMT- IP address: 64.165.34.3 Document e-signed by Kirsten Squarcia (kirstens@cupertino.gov) Signature Date: 2024-06-26 - 0:25:39 AM GMT - Time Source: server- IP address: 64.165.34.3 Agreement completed. 2024-06-26 - 0:25:39 AM GMT